Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon; Re-evaluation of Non-Economic Exclusions From August 2003 Final Designation, 11140-11154 [05-4173]
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PART 193—LIQUEFIED NATURAL GAS
FACILITIES: FEDERAL SAFETY
STANDARDS
1. The authority citation for part 193
continues to read as follows:
I
Authority: 49 U.S.C. 5103, 60102, 60103,
60104, 60108, 60109, 60110, 60113, 60118;
and 49 CFR 1.53.
2. In 49 CFR part 193, remove the
words ‘‘Research and Special Programs
Administration’’ and add, in their place,
the words ‘‘Pipeline and Hazardous
Materials Safety Administration’’ in the
following places:
I a. Section 193.2007; and
I b. Section 193.2013.
I
PART 194—RESPONSE PLANS FOR
ONSHORE OIL PIPELINES
1. The authority citation for part 194
continues to read as follows:
I
Authority: 33 U.S.C. 1231, 1321(j)(1)(C),
(j)(5) and (j)(6); sec. 2, E.O. 12777, 56 FR
54757, 3 CFR, 1991 Comp., p. 351; 49 CFR
1.53.
2. In 49 CFR part 194, remove the
words ‘‘Research and Special Programs
Administration’’ and add, in their place,
the words ‘‘Pipeline and Hazardous
Materials Safety Administration’’ in
§ 194.119(a).
I 3. In 49 CFR part 194, remove the
abbreviation ‘‘RSPA’’ and add, in its
place, the abbreviation ‘‘PHMSA’’ in the
following places:
I a. Section 194.101(a) in two places;
I b. Section 194.119(b) in two places, (c)
in five places, (d) in two places, (e) in
two places, and (f) in four places; and
I c. Section 194.121(b), (c) in two places,
and (d) in four places.
I
PART 195—TRANSPORTATION OF
HAZARDOUS LIQUIDS BY PIPELINE
1. The authority citation for part 195
continues to read as follows:
I
Authority: 49 U.S.C. 5103, 60102, 60104,
60108, 60109, 60118; and 49 CFR 1.53.
2. In 49 CFR part 195, remove the
words ‘‘Research and Special Programs
Administration’’ and add, in their place,
the words ‘‘Pipeline and Hazardous
Materials Safety Administration’’ in the
following places:
I a. Section 195.2;
I b. Section 195.3(b);
I c. Section 195.57(b);
I d. Section 195.58;
I e. Section 195.59(a) and (b); and
I f. Section 195.452(m).
I 3. In 49 CFR part 195, remove the
abbreviation ‘‘RSPA’’ and add, in its
place, the abbreviation ‘‘PHMSA’’ in the
following places:
I a. Section 195.1; and
I
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I
b. Section 195.9.
DEPARTMENT OF THE INTERIOR
4. In § 195.59(a) and (b), remove the email address ‘‘roger.little@rspa.dot.gov’’
and add, in its place, the e-mail address
‘‘roger.little@dot.gov’’.
I
PART 198—REGULATIONS FOR
GRANTS TO AID STATE PIPELINE
SAFETY PROGRAMS
1. The authority citation for part 198
continues to read as follows:
I
Authority: 49 U.S.C. 60105, 60106, 60114;
and 49 CFR 1.53.
2. In 49 CFR part 198, remove the
words ‘‘Research and Special Programs
Administration’’ and add, in their place,
the words ‘‘Pipeline and Hazardous
Materials Safety Administration’’ in
§ 198.3.
I 3. In 49 CFR part 198, remove the
abbreviation ‘‘RSPA’’ and add, in its
place, the abbreviation ‘‘PHMSA’’ in
§ 198.13(e).
I
PART 199—DRUG AND ALCOHOL
TESTING
1. The authority citation for part 199
continues to read as follows:
I
Authority: 49 U.S.C. 5103, 60102, 60104,
60108, 60117, and 60118; 49 CFR 1.53.
2. In 49 CFR part 199, remove the
words ‘‘Research and Special Programs
Administration’’ and add, in their place,
the words ‘‘Pipeline and Hazardous
Materials Safety Administration’’ in the
following places:
I a. Section 199.3;
I b. Section 199.7;
I c. Section 199.119(b); and
I d. Section 199.229(c).
I
3. In 49 CFR part 199, remove the
abbreviation ‘‘RSPA’’ and add, in its
place, the abbreviation ‘‘PHMSA’’ in the
following places:
I a. Section 199.119(a) in two places;
I b. Section 199.225(b)(4); and
I c. Section 199.229(a) in two places.
I
Issued in Washington, DC on February 25,
2005.
Elaine E. Joost,
Acting Deputy Administrator.
[FR Doc. 05–4123 Filed 3–7–05; 8:45 am]
BILLING CODE 4910–60–P
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Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AI26
Endangered and Threatened Wildlife
and Plants; Final Designation of
Critical Habitat for Four Vernal Pool
Crustaceans and Eleven Vernal Pool
Plants in California and Southern
Oregon; Re-evaluation of NonEconomic Exclusions From August
2003 Final Designation
Fish and Wildlife Service,
Interior.
ACTION: Final rule; confirmation.
AGENCY:
SUMMARY: We, the Fish and Wildlife
Service (Service), confirm the noneconomic exclusions made to our
previous final rule (August 6, 2003, 68
FR 46683, effective September 5, 2003),
which designated critical habitat
pursuant to the Endangered Species Act
of 1973, as amended (Act), for 4 vernal
pool crustaceans and 11 vernal pool
plants. A total of approximately
1,184,513 ac (479,356 ha) of land falls
within the boundaries of designated
critical habitat. This estimate reflects
exclusion of: Lands within the
boundaries of Habitat Conservation
Plans, National Wildlife Refuge lands
and National fish hatchery lands (33,097
ac (13,394 ha)), State lands within
ecological reserves and wildlife
management areas (20,933 ac (8,471
ha)), Department of Defense lands
within Beale and Travis Air Force Bases
as well as Fort Hunter Liggett and Camp
Roberts Army installations (64,259 ac
(26,005 ha)), Tribal lands managed by
the Mechoopda Tribe (644 ac (261 ha)),
and the Santa Rosa Plateau Ecological
Reserve (10,200 ac (4,128 ha)) from the
final designation. The area estimate
does not reflect the exclusion of lands
within the California counties of Butte,
Madera, Merced, Sacramento, and
Solano, which are excluded from the
final designation pursuant to section
4(b)(2) of the Act and pending further
analysis as directed by the October 29,
2004, order by the court.
This critical habitat designation
requires us to consult under section 7 of
the Act with regard to actions
authorized, funded, or carried out by a
Federal agency. Section 4 of the Act
requires us to consider economic and
other relevant impacts when specifying
any particular area as critical habitat.
We solicited data and comments from
the public on all aspects of the proposed
rule, including data on economic and
other impacts of the designation.
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Federal Register / Vol. 70, No. 44 / Tuesday, March 8, 2005 / Rules and Regulations
This document confirms the
non-economic exclusions made to our
previous final rule (August 6, 2003, 68
FR 46683, effective September 5, 2003),
and this document is effective on March
8, 2005.
ADDRESSES: Comments and materials
received, as well as supporting
documentation used in the preparation
of this final rule, will be available for
public inspection, by appointment,
during normal business hours at the
Sacramento Fish and Wildlife Office,
U.S. Fish and Wildlife Service, 2800
Cottage, Room W–2605, Sacramento, CA
95825.
FOR FURTHER INFORMATION CONTACT:
Arnold Roessler, at the Sacramento Fish
and Wildlife Office address above
(telephone (916) 414–6600; facsimile
(916) 414–6710).
SUPPLEMENTARY INFORMATION:
DATES:
Preamble
Designation of Critical Habitat Provides
Little Additional Protection to Species
In 30 years of implementing the Act,
the Service has found that the
designation of statutory critical habitat
provides little additional protection to
most listed species, while consuming
significant amounts of available
conservation resources. The Service’s
present system for designating critical
habitat has evolved since its original
statutory prescription into a process that
provides little real conservation benefit,
is driven by litigation and the courts
rather than biology, limits our ability to
fully evaluate the science involved,
consumes enormous agency resources,
and imposes huge social and economic
costs. The Service believes that
additional agency discretion would
allow our focus to return to those
actions that provide the greatest benefit
to the species most in need of
protection.
Role of Critical Habitat in Actual
Practice of Administering and
Implementing the Act
While attention to and protection of
habitat are paramount to successful
conservation actions, we have
consistently found that, in most
circumstances, the designation of
critical habitat is of little additional
value for most listed species, yet it
consumes large amounts of conservation
resources. Sidle (1987) stated, ‘‘Because
the Act can protect species with and
without critical habitat designation,
critical habitat designation may be
redundant to the other consultation
requirements of section 7.’’ Currently,
only 473 species or 37 percent of the
1,264 listed species in the U.S. under
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the jurisdiction of the Service have
designated critical habitat. We address
the habitat needs of all 1,264 listed
species through conservation
mechanisms such as listing, section 7
consultations, the Section 4 recovery
planning process, the Section 9
protective prohibitions of unauthorized
take, Section 6 funding to the States,
and the Section 10 incidental take
permit process. The Service believes
that it is these measures that may make
the difference between extinction and
survival for many species.
We note, however, that a recent
judicial opinion, Gifford Pinchot Task
Force v. United States Fish and Wildlife
Service, has invalidated the Service’s
regulation defining destruction or
adverse modification of critical habitat.
We are currently reviewing the decision
to determine what effect it may have on
the outcome of consultations pursuant
to Section 7 of the Act.
In crafting the Act, Congress provided
guidance for the exercise of discretion
by the Secretary in making critical
habitat decisions. We have applied the
guidance in this rulemaking. Section
3(5)(a) of the Act, defines critical habitat
as ‘‘(i) the specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the provisions of
section 4 of this Act, on which are
found those physical or biological
features (I) essential to the conservation
of the species and (II) which may
require special management
considerations or protection; and (ii)
specific areas outside the geographical
area occupied by the species at the time
it is listed in accordance with the
provisions of section 4 of this Act, upon
a determination by the Secretary that
such areas are essential for the
conservation of the species.’’
Section 3(5)(C) of the Act further
provides that ‘‘except in those
circumstances determined by the
Secretary, critical habitat shall not
include the entire geographical area
which can be occupied by the
threatened or endangered species.’’
‘‘These provisions of section 3 authorize
the exercise of discretion in determining
(1) whether special management
considerations or protections may be
required; (2) whether unoccupied areas
are essential for the conservation of the
species; and (3) the extent to which the
entire area which can be occupied by
the species should be included in
critical habitat.’’
Finally, section 4(b)(2) of the Act
allows the Secretary to exclude any area
from critical habitat, after considering
the economic impact and any other
relevant impact of a designation, upon
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a determination that the benefits of such
exclusion outweigh the benefits of
specifying such area as part of the
critical habitat, unless the failure to
designate such area as critical habitat
will result in the extinction of the
species concerned.
The Congressional record is clear that
Congress contemplated occasions where
the Secretary could exclude the entire
designation. In addition, the discretion
that Congress anticipated would be
exercised in Section 4(b)(2) of the Act is
extremely broad. ‘‘The consideration
and weight given to any particular
impact is completely within the
Secretary’s discretion. * * *’’
(Congressional Research Service 1982).
Given that section 4(a)(3)(A) of the
Act requires that critical habitat be
designated concurrently with making a
determination that a species is an
endangered species or a threatened
species, we are mindful of the
Congressional intent with respect to
listing as we designate critical habitat.
For example, section 4(a)(1) of the Act
(16 U.S.C. 1533(a)(1), states that we
must consider in listing determinations,
among factors, ‘‘the inadequacy of
existing regulatory mechanisms’’ (socalled ‘‘Factor D’’); and ‘‘other natural or
manmade factors affecting its continued
existence’’ (referred to as ‘‘Factor E’’).
Section 4(b)(1)(A) requires us also to
‘‘tak[e] into account those efforts, if any,
being made by any State or foreign
nation, or any political subdivision of a
State or foreign nation, to protect such
species, whether by predator control,
protection of habitat and food supply, or
other conservation practices, within any
area under its jurisdiction, or on the
high seas.’’ Read together, sections
4(a)(1) and 4(b)(1)(A), as reflected in our
regulations at 50 CFR 424.11(f), require
us to take into account any State or local
laws, regulations, ordinances, programs,
or other specific conservation measures
that either positively or negatively affect
a species’ status (i.e., measures that
create, exacerbate, reduce, or remove
threats identified through the section
4(a)(1) analysis). The manner in which
the section 4(a)(1) factors are framed
supports this conclusion. Factor (D) for
example, ‘‘the inadequacy of existing
regulatory mechanisms’’ indicates that
overall we might find existing
regulatory mechanisms adequate to
justify a determination not to list a
species. Factor (E) in section 4(a)(1) (any
‘‘manmade factors affecting [the
species’] continued existence’’) requires
us to consider the pertinent laws,
regulations, programs, and other
specific actions of any entity that either
positively or negatively affect the
species. Thus, the analysis outlined in
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section 4 of the Act requires us to
consider the conservation efforts of not
only State and foreign governments but
also of Federal agencies, Tribal
governments, businesses, organizations,
or individuals that positively affect the
species’ status. The section 4 analysis
for listing determinations is relevant to
our exercise of discretion in critical
habitat designations, although it must be
stressed that analysis in no way limits
the Secretary’s discretion.
Procedural and Resource Difficulties in
Designating Critical Habitat
We have been inundated with
lawsuits for our failure to designate
critical habitat, and we face a growing
number of lawsuits challenging critical
habitat determinations once they are
made. These lawsuits have subjected the
Service to an ever-increasing series of
court orders and court-approved
settlement agreements, compliance with
which now consumes nearly the entire
listing program budget. This leaves the
Service with little ability to prioritize its
activities to direct scarce listing
resources to the listing program actions
with the most biologically urgent
species conservation needs.
The consequence of the critical
habitat litigation activity is that limited
listing funds are used to defend active
lawsuits, to respond to Notices of Intent
(NOIs) to sue relative to critical habitat,
and to comply with the growing number
of adverse court orders. As a result,
listing petition responses, the Service’s
own proposals to list critically
imperiled species, and final listing
determinations on existing proposals are
all significantly delayed. The
accelerated schedules of court-ordered
designations have left the Service with
almost no ability to provide for adequate
public participation or to ensure a
defect-free rulemaking process before
making decisions on listing and critical
habitat proposals due to the risks
associated with noncompliance with
judicially imposed deadlines. This in
turn fosters a second round of litigation
in which those who fear adverse
impacts from critical habitat
designations challenge those
designations. The cycle of litigation
appears endless, is very expensive, and
in the final analysis provides relatively
little additional protection to listed
species.
The costs resulting from the
designation include legal costs, the cost
of preparation and publication of the
designation, the analysis of the
economic effects, the cost of requesting
and responding to public comment, and
in some cases the costs of compliance
with the National Environmental Policy
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Act (NEPA); all are part of the cost of
critical habitat designation. None of
these costs result in any benefit to the
species that is not already afforded by
the protections of the Act enumerated
earlier, and they directly reduce the
funds available for direct and tangible
conservation actions.
Background
On September 24, 2002, we published
a proposed rule to designate critical
habitat, pursuant to the Endangered
Species Act of 1973, as amended (Act),
for 4 vernal pool crustaceans and 11
vernal pool plants (67 FR 59884). The
four vernal pool crustaceans involved in
this critical habitat designation are the
Conservancy fairy shrimp (Branchinecta
conservatio), longhorn fairy shrimp
(Branchinecta longiantenna), vernal
pool fairy shrimp (Branchinecta lynchi),
and vernal pool tadpole shrimp
(Lepidurus packardi). The 11 vernal
pool plant species are Butte County
meadowfoam (Limnanthes floccosa ssp.
californica), Contra Costa goldfields
(Lasthenia conjugens), Hoover’s spurge
(Chamaesyce hooveri), fleshy (or
succulent) owl’s-clover (Castilleja
campestris ssp. succulenta), Colusa
grass (Neostapfia colusana), Greene’s
tuctoria (Tuctoria greenei), hairy Orcutt
grass (Orcuttia pilosa), Sacramento
Orcutt grass (Orcuttia viscida), San
Joaquin Valley Orcutt grass (Orcuttia
inaequalis), slender Orcutt grass
(Orcuttia tenuis), and Solano grass
(Tuctoria mucronata). We proposed a
total of 128 units of critical habitat for
these 15 vernal pool species, totaling
approximately 672,920 hectares (ha)
(1,662,762 acres (ac)) in 36 counties in
California and one county in Oregon. In
accordance with our regulations at 50
CFR 424.16(c)(2), we opened a 60-day
comment period on this proposal which
closed on November 25, 2002.
All the species live in vernal pools
(shallow depressions that hold water
seasonally), swales (shallow drainages
that carry water seasonally), and
ephemeral freshwater habitats. None are
known to occur in riverine waters,
marine waters, or other permanent
bodies of water. The vernal pool
habitats of these species have a
discontinuous distribution west of the
Sierra Nevada that extends from
southern Oregon through California into
northern Baja California, Mexico. The
species have all adapted to the generally
mild climate and seasonal periods of
inundation and drying that help make
the vernal pool ecosystems of California
and southern Oregon unique.
Section 4(b)(2) of the Act requires that
the Secretary of the Interior designate or
revise critical habitat based upon the
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best scientific and commercial data
available, after taking into consideration
the economic impact, impact to national
security, and any other relevant impact
of specifying any particular area as
critical habitat. The Secretary may
exclude any area from critical habitat if
she determines that the benefit of such
exclusion outweighs the benefits of
specifying such area as part of the
critical habitat, unless the failure to
designate such area as critical habitat
will result in the extinction of the
species concerned. Thus, to fulfill our
requirement to consider the potential
economic impacts of the proposed
designation of critical habitat for the 15
vernal pool species, we conducted an
analysis of the potential economic
impacts on the proposed designation
and published a notice on November 21,
2002 (67 FR 70201), announcing the
availability of our draft economic
analysis (DEA). The notice opened a 30day public comment period on the draft
economic analysis and extended the
comment period on the proposed
critical habitat designation.
During the development of the final
designation, we reviewed the lands
proposed as critical habitat based on
public comments and any new
information that may have become
available and refined the boundaries of
the proposal to remove lands
determined not to be essential to the
conservation of the 15 vernal pool
species. We then took into consideration
the potential economic impacts of the
designation, impacts on national
security, and other relevant factors such
as partnerships, existing management of
the lands being considered, and the
effect of designation on the conservation
of the species whose critical habitat was
covered by the designation. Next, we
determined whether the benefits of
excluding certain lands from the final
designation of critical habitat for the 15
vernal pool species outweighed the
benefit of including them in the
designation, and whether the specific
exclusions would result in the
extinction of any of the species
involved. The final rule made two types
of exclusions, lands excluded from the
final designation based on economic
effects of the designation and lands
excluded due to other considerations.
Lands excluded due to other
considerations included lands within
specific National Wildlife Refuges and
Fish Hatcheries; Department of Defense
lands; Tribal lands; State Wildlife Areas
and Ecological Reserves; and lands
covered by habitat conservation plans or
other management plans that provide a
benefit for the species. Lands proposed
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as critical habitat in Butte, Madera,
Merced, Sacramento, and Solano
Counties were excluded based on
potential economic impacts. Thus, on
July 15, 2003, we made a final
determination of critical habitat for the
15 vernal pool species; the final rule
was published in the Federal Register
on August 6, 2003 (68 FR 46684). A total
of approximately 744,067 ac (301,114
ha) of land were identified as within the
boundaries of the designated critical
habitat for the 15 vernal pool species.
In January 2004, Butte Environmental
Council and several other organizations
filed a complaint alleging that we: (1)
Violated both the Act, and the
Administrative Procedure Act (APA) by
excluding over 1 million acres from the
final designation of critical habitat for
the 15 vernal pool species; (2) violated
mandatory notice-and-comment
requirements under the Act and APA;
and (3) engaged in an unlawful pattern,
practice, and policy by failing to
properly consider the economic impacts
of designating critical habitat. On
October 28, 2004, the court signed a
Memorandum and Order in that case.
The Memorandum and Order remanded
the final designation to the Service in
part. In particular, the court ordered us
to: (1) Reconsider the exclusions from
the final designation of critical habitat
for the 15 vernal pool species, with the
exception of those lands within the 5
California counties that were excluded
based on potential economic impacts,
and publish a new final determination
as to those lands within 120 days; and
(2) reconsider the exclusion of the 5
California counties based on potential
economic impacts and publish a new
final determination no later than July
31, 2005. The court did not alter the
August 6, 2003, final designation.
In order to more completely comply
with the court order, on December 28,
2004, we reopened the comment period
for 30 days (69 FR 77700) on the
designation, to solicit any new
information concerning the benefits of
excluding and including the lands the
final rule excluded on the basis of
noneconomic considerations. Comments
received during this 30-day comment
period are addressed herein.
This notice addresses the first
requirement of the remand—the
reconsideration of the lands excluded
for noneconomic considerations from
the final designation of critical habitat
for the 15 vernal pool species. Those
lands within the 5 California counties
that were excluded based on potential
economic impacts will be addressed
through a future Federal Register
document, upon completion of the
economic analysis currently underway.
Table 1 lists each specific area that
was excluded from the proposed
designation of critical habitat for the 15
vernal pool species, based on policy by
category and size. The total area shown
is the cumulative critical habitat area for
all 15 species. Many of the critical
habitat boundaries for each species
overlap and as a result the actual total
critical habitat area would be less.
TABLE 1.—APPROXIMATE AREAS OF CRITICAL HABITAT EXCLUSIONS FOR THE VERNAL POOL CRUSTACEANS AND PLANTS
IN CALIFORNIA AND OREGON
Exclusion area
Acres
Hectares
National Wildlife Refuges (NWR) and Fish Hatchery Exclusions
Sacramento NWR Complex ....................................................................................................................................................
San Francisco Bay NWR .........................................................................................................................................................
San Luis NWR Complex ..........................................................................................................................................................
Kern NWR Complex ................................................................................................................................................................
Coleman Nat. Fish Hatchery ...................................................................................................................................................
19,363
617
18,014
4,894
13
7,836
250
7,290
1,980
5
Total ..................................................................................................................................................................................
42,914
17,367
Beale Air Force Base * ............................................................................................................................................................
Travis Air Force Base * ............................................................................................................................................................
Fort Hunter Liggett ...................................................................................................................................................................
Camp Roberts ..........................................................................................................................................................................
10,033
9,651
16,583
33,937
4,060
3,906
6,711
13,734
Total ..................................................................................................................................................................................
70,204
28,410
Mechoopda Tribe .....................................................................................................................................................................
644
261
Total ..................................................................................................................................................................................
644
261
1,141
637
478
50
0.4
3,021
455
754
420
10
1,559
5
39
7
462
258
194
20
0.16
1,223
184
305
170
4
631
2
16
3
Department of Defense Exclusions
Tribal Land Exclusions
State Wildlife Areas (WA) and Ecological Reserve (ER) Exclusions
Allensworth ER ........................................................................................................................................................................
Battle Creek WA ......................................................................................................................................................................
Big Sandy WA .........................................................................................................................................................................
Boggs Lake ER ........................................................................................................................................................................
Butte Creek Canyon ER ..........................................................................................................................................................
Calhoun Cut ER .......................................................................................................................................................................
Carrizo Plains ER ....................................................................................................................................................................
Dales Lake ER .........................................................................................................................................................................
Fagen Marsh ER .....................................................................................................................................................................
Grizzly Island WA ....................................................................................................................................................................
Hill Slough WA .........................................................................................................................................................................
North Grasslands WA ..............................................................................................................................................................
Oroville WA ..............................................................................................................................................................................
Phoenix Field ER .....................................................................................................................................................................
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TABLE 1.—APPROXIMATE AREAS OF CRITICAL HABITAT EXCLUSIONS FOR THE VERNAL POOL CRUSTACEANS AND PLANTS
IN CALIFORNIA AND OREGON—Continued
Exclusion area
Acres
Hectares
San Joaquin River ER .............................................................................................................................................................
Stone Corral ER ......................................................................................................................................................................
Thomes Creek ER ...................................................................................................................................................................
278
3,074
447
113
1,244
181
Total ..................................................................................................................................................................................
12,373
5,007
Skunk Hollow HCP ..................................................................................................................................................................
Western Riverside Multiple Species HCP ...............................................................................................................................
Santa Rosa Plateau Ecological Reserve ................................................................................................................................
San Joaquin County Multiple Species HCP ............................................................................................................................
239
5,730
4,246
10
97
2,319
1,718
4
Total ..................................................................................................................................................................................
10,224
4,138
Grand Total ...............................................................................................................................................................
136,358
55,182
Habitat Conservation Plans (HCP) and Cooperatively Managed Land Exclusions
* Beale and Travis AFB have approved INRMPs and are not designated critical habitat based on 4(a)(3)(B) of the Act.
Summary of Comments and
Recommendations
In the September 24, 2002, proposed
critical habitat designation (67 FR
59884) and subsequent Federal Register
notices concerning the 15 vernal pool
species (67 FR 70201 and 68 FR 12336),
we requested all interested parties to
submit comments on the specifics of the
proposal, including information related
to the critical habitat designation, unit
boundaries, species occurrence
information and distribution, land use
designations that may affect critical
habitat, potential economic effects of the
proposed designation, benefits
associated with critical habitat
designation, potential exclusions and
the associated rationale for the
exclusions, and methods used to
designate critical habitat.
In the December 28, 2004, reopening
of public comment period for
noneconomic exclusions related to
critical habitat designation (69 FR
77700), we requested all interested
parties to submit comments on the
specifics of the proposal, including
information related to amount and
distribution of habitat, essential habitat,
rationale for including or excluding
habitat, benefits associated with
including or excluding critical habitat
designation, current or planned
activities on proposed critical habitat,
and public participation in designating
critical habitat.
We contacted all appropriate State
and Federal agencies, county
governments, elected officials, and other
interested parties and invited them to
comment. This was accomplished
through telephone calls, letters, and
news releases faxed and/or mailed to
affected elected officials, media outlets,
local jurisdictions, interest groups and
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other interested individuals. In
addition, we invited public comment
through the publication of legal notices
in numerous newspaper and news
media throughout California and
Oregon. In 2002, we provided
notification of the DEA and proposed
rule to all interested parties. At the
request of Congressman Cardoza’s
Office, the Merced County Board of
Supervisors, and the Stanislaus County
Board of Supervisors, we held two
public meetings to explain the
December 28, 2004, Federal Register
notice regarding the noneconomic
exclusions to the public and requested
that they provide comments. We
provided contacts where they could
direct questions regarding the proposed
designation. We also posted the
associated material on our Sacramento
Fish and Wildlife Office internet site
following the publication on December
28, 2004. Additionally, we made
available to the public upon request
individual maps of the noneconomic
exclusions.
We received a total of 955 comment
letters during the first 3 comment
periods, and 17 on the most recent
comment period, which ended on
January 27, 2005. Comments were
received from Federal, Tribal, State and
local agencies, and private organizations
and individuals. We reviewed all
comments received, for this and
previous rules, for substantive issues
and new information on the proposed
exclusions and other information
regarding the vernal pool plants and
vernal pool crustaceans. Similar
comments were grouped into several
general issue categories relating
specifically to the proposed critical
habitat determination, the proposed
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exclusions, and the Draft Economic
Analysis, and are identified below.
Peer Review
For a discussion of the peer review of
vernal pool critical habitat designation,
please refer to our August 6, 2003, final
designation (68 FR 46684).
State Agencies
For a discussion of the State Agency
comments on the vernal pool critical
habitat designation, please refer to our
August 6, 2003, final designation (68 FR
46684).
Other Public Comments and Responses
We address other substantive
comments and accompanying
information in the following summary.
Relatively minor editing changes and
reference updates suggested by
commenters have been incorporated
into this final rule or the final economic
analysis, as appropriate.
Issue 1—Habitat and Species-Specific
Information
Comment 1: One commenter
suggested that created vernal pool
habitat should not be used as a method
of mitigation for impacts to existing
vernal pool habitat.
Our Response: Preservation of
naturally occurring vernal pool
complexes remains a key component to
conservation for vernal pool species. In
designating critical habitat areas we
evaluated the importance of including
created vernal pool habitat within the
designated areas. We have determined
that created vernal pool areas do
provide essential habitat for many of the
vernal pool species and are a key
component toward their conservation.
Comment 2: The military, notably the
California Army National Guard,
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specifically Camp Roberts and Fort
Hunter Liggett, and the U.S. Air Force,
specifically Beale Air Force Base and
Travis Air Force Base, requested that
critical habitat not be designated on the
four bases. In addition, the Solano
County Board of Supervisors requested
that Travis Air Force Base, in particular,
not be included in critical habitat
designation. Another commenter had
concerns that vernal pool habitat for
federally listed vernal pool species
within Travis Air Force Base was not
adequately protected from military
activities that occur on the base. This
commenter requested that vernal pool
habitat within Travis Air Force Base be
designated as critical habitat.
Our Response: The two Air Force
Bases have approved INRMPs and were
excluded through section 4(a)(3)(B) of
the Act. The two Army National Guard
Reserves Bases were excluded through
section 4(b)(2) of the Act, since the
benefits of excluding outweigh the
benefits of including those vernal pool
areas within the designation. For a
summary of our comments regarding the
exclusion of lands occupied by these
bases, please refer to our August 6,
2003, final designation (68 FR 46684)
and the Exclusions section below. No
significant changes to vernal pool
habitat and the management of this
habitat have occurred since these
military bases were evaluated for
exclusion from critical habitat
designation in the August 6, 2003, final
rule. All of these bases have draft or
final Integrated Natural Resource
Management Plans (INRMPs) and the
Service has completed or is currently
working on consultations on these
through the section 7 consultation
process. We recognize that the military
is implementing measures to conserve
existing locations of federally listed
vernal pool species and the habitat they
occupy. In addition, section 4(b)(2) of
the Act requires that the Secretary of the
Interior designate or revise critical
habitat based upon the best scientific
and commercial data available, after
taking into consideration the economic
impact, impact to national security, and
any other relevant impact of specifying
any particular area as critical habitat.
The Secretary may exclude any area
from critical habitat if she determines
that the benefit of such exclusion
outweighs the benefits of specifying
such area as part of the critical habitat,
unless the failure to designate such area
as critical habitat will result in the
extinction of the species concerned.
Comment 3: Travis Air Force Base
stated that in the August 6, 2003, final
designation (68 FR 46684) we indicated
that the exclusion acreage at Travis AFB
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is 9,651 acres. Travis AFB stated that
the correct acreage is 5,128 acres of fee
owned land and 1,255 acres in lesser
interests, such as easements and rights
of way.
Response: The acreage figures
identified in the proposed rule issued
on December 27, 2004 (69 FR 77700),
reflected the accumulated critical
habitat total for each of the species
within the Travis Air Force boundary.
As a result the total acreage identified
was higher.
Comment 4: One commenter stated
that critical habitat has to be occupied
by the species at the time the species is
listed, needs to contain the features
essential to the conservation of the
species, and may require special
management considerations or
protections. This commenter stated that
that the 10 acres under discussion in the
San Joaquin County Multiple Species
Habitat Conservation Plan should
continue to be excluded because this
area is already afforded special
management considerations or
protections.
Our Response: We agree that this area
is already under special management
consideration and afforded protection
by virtue of the San Joaquin County
Multi-Species Habitat Conservation and
Open Space Plan and have excluded the
area covered under this HCP from this
designation. For further discussion on
the legal definition of critical habitat,
refer to our August 6, 2003, final rule
(68 FR 46684).
Comment 5: During the comment
period for the proposed rule (67 FR
59884) and the December 28, 2004,
proposed rule (69 FR 77700), the
Mechoopda Tribe requested the
exclusion of their land in Butte County
from critical habitat designation. The
Mechoopda Tribe’s Environmental
Department stated that they have
implemented measures through a
comprehensive management plan to
further the protection and conservation
of vernal pool ecosystems on their land.
Our Response: As a result of meeting
with the Tribe and discussing the
details of their management plan, we
have determined that it is appropriate to
exclude the Mechoopda lands from the
current designation. We recognize that
the Tribe is implementing measures to
conserve existing locations of federally
listed vernal pool species and the
habitat they occupy. In addition, we
note that under the tribe’s existing
management, vernal pool complexes
have remained intact and able to
support the species that rely on them.
For a more detailed discussion summary
of our comments regarding the
exclusion of lands occupied by the
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Tribe and a more detailed description of
the Tribe’s voluntary measures to
benefit the conservation of listed
species, please refer to the discussion
later in this rule.
Comment 6: The Bureau of Land
Management (BLM) requested that
critical habitat not be designated on the
Carrizo Plains National Monument due
to current management and protection
of vernal pool resources within BLM’s
jurisdiction.
Our Response: The BLM’s
management plan implements measures
to conserve existing locations of
federally listed vernal pool species and
their habitat. The Service is currently
consulting on this plan through the
section 7 consultation process. If we
determine that the lands of the Carrizo
Plains National Monument merits
exclusion, we will solicit additional
comments on such an exclusion when
we reopen the comment period for the
draft economic analysis in the spring of
2005. Those comments and any
comments already received will be fully
considered before sending a final rule to
the Federal Register.
Comment 7: The Placer County Board
of Supervisors stated that Critical
Habitat Unit 12 for the vernal pool fairy
shrimp should be excluded from
designation because the Placer Legacy
Habitat Conservation Plan, which is
currently under development, will
provide adequate protection of federally
listed vernal pool species in this region.
The Board of Supervisors stated that
because the Placer Legacy HCP is
similar to other HCPs, such as the
Western Riverside Multiple Species
HCP, and would provide for the
conservation of vernal pools and listed
vernal pool crustaceans, the Placer
Legacy HCP should therefore similarly
be excluded from critical habitat
designation.
Our Response: The scope of this
notice was to seek comments on those
areas previously excluded for
noneconomic reasons. However, we will
consider all comments we receive and if
additional proposed exclusions result
from those comments, we will solicit
additional comments on exclusions
when we re-open the comment period
for the draft economic analysis in the
spring of 2005. Those comments and
any comments already received will be
fully considered before sending a final
rule to the Federal Register.
Comment 8: One commenter stated
that the existing designation of critical
habitat for vernal pool species should be
expanded. Specifically, areas adjacent to
the Santa Rosa Plateau Ecological
Reserve should be considered for
critical habitat designation because
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these areas, as well as areas within the
ER, are threatened by runoff from
development on adjacent unprotected
lands.
Our Response: The area proposed as
critical habitat within the Santa Rosa
Plateau Ecological Reserve has been
excluded, as part of the Western
Riverside MSHCP, under 4(b)(2) of the
Act. In our original proposal we
proposed to designate only those areas
essential to the conservation of the
vernal pool fairy shrimp and the vernal
pool complexes in which it occurs. In
our mapping of the area we believe we
captured those areas, which were
essential to maintain water quality and
hydrology of the vernal pools and vernal
pool complexes within the proposed
unit. We determined that areas outside
the proposed designated areas were not
essential for the conservation of the
species or its habitat. In addition, the
scope of this notice was to seek
comments on those areas previously
excluded for noneconomic reasons. We
will solicit additional comments on
exclusions when we reopen the
comment period for the draft economic
analysis in the spring of 2005. Those
comments and any comments already
received will be fully considered before
sending a final rule to the Federal
Register.
Comment 9: One commenter
requested that lands covered in the
Skunk Hollow vernal pool basin should
continue to be excluded, and if critical
habitat designation is necessary, it
should only include the 136-acre Barry
Jones Wetland Mitigation Bank.
Our Response: This area is already
under special management
considerations and afforded protection
as part of the Western Riverside County
MSHCP. Therefore, we have determined
that it would be appropriate to exclude
the area covered under this HCP from
this designation. For more detail on our
reasons for exclusions please refer to the
specific discussion in this rule.
Comment 10: Two commenters stated
that the Western Riverside Multiple
Species HCP is not designed to
adequately review environmental effects
on unprotected vernal pool habitats in
this area.
Our Response: Critical habitat is only
one of many conservation tools for
federally listed species. HCPs are one of
the most important tools for conserving
habitat and reconciling economic land
use with the conservation of listed
species on non-Federal lands.
Designation of critical habitat does not
afford protection to species or habitat
unless there is a federal nexus, lands
protected under HCPs are protected
regardless of the designation of critical
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habitat. Section 4(b)(2) allows us to
exclude from critical habitat designation
areas where the benefits of exclusion
outweigh the benefits of designation,
provided the exclusion will not result in
the extinction of the species. We believe
that in most instances, the benefits of
excluding HCPs from critical habitat
designations will far outweigh the
benefits of including them. For this
designation, we find that the benefits of
exclusion outweigh the benefits of
inclusion for the Western Riverside
MSHCP issued for the covered federally
listed species. In particular, Section
10(a)(1)(B) of the Act states that HCPs
must meet issuance criteria, including
minimizing and mitigating any take of
the listed species covered by the permit
to the maximum extent practicable, and
that the taking must not appreciably
reduce the likelihood of the survival
and recovery of the species in the wild.
Comment 11: Congressman Dennis
Cardoza and one other commenter
concurred with our previous
noneconomic exclusions of lands from
designation of critical habitat. In
addition, they further stated that all
lands with conservation easements that
are managed for the protection of listed
vernal pool species should also be
excluded from vernal pool critical
habitat designation.
Our Response: The scope of this
notice was to seek comments on those
areas previously excluded for noneconomic reasons. We will consider
comments requesting additional
exclusions and will propose any
additional exclusions with opportunity
for comments when we reopen the
comment period for the draft economic
analysis in the spring of 2005. Those
comments, and any comments already
received, will be fully considered before
sending a final rule to the Federal
Register.
Comment 12: Commenters associated
with California Native Plant Society
(CNPS) and Butte Environmental
Council stated that lands excluded for
policy and noneconomic reasons are
essential to the survival and recovery of
endangered vernal pool species, and
therefore should be designated as vernal
pool critical habitat. CNPS emphasized
that vernal pool habitat on Department
of Defense lands should be included in
the designation of vernal pool critical
habitat.
Our Response: There is minimal
benefit from designating critical habitat
for the vernal pool species within areas
that are currently excluded because
these lands, such as State-owned
Wildlife Areas, Ecological Reserves,
National Fish and Wildlife Refuges and
Hatcheries, are already managed for the
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conservation of wildlife. HCPs that have
been excluded from the rule for the
same reason, they are already managed
for conservation under Section
10(a)(1)(B) of the Act, which states that
HCPs must meet issuance criteria,
including minimizing and mitigating
any take of the listed species covered by
the permit to the maximum extent
practicable, and that the taking must not
appreciably reduce the likelihood of the
survival and recovery of the species in
the wild. Furthermore, an HCP
application must itself be consulted
upon. While this consultation will not
look specifically at the issue of adverse
modification to critical habitat, unless
critical habitat has already been
designated in the proposed plan area, it
will determine if the HCP permit would
jeopardize the species in the plan area.
In addition, protections afforded by
HCPs, management plans, and other
landscape management programs go
beyond any protections provided by a
critical habitat designation. A critical
habitat designation only protects areas
that are subject to a federal action. HCPs
and other management plans are not
dependent on federal action to provide
species protection.
In response to the CNPS concerns
regarding exclusions of Department of
Defense lands, section 4(b)(2) of the Act
requires that the Secretary of the Interior
shall designate or revise critical habitat
based upon the best scientific and
commercial data available, after taking
into consideration the economic impact,
impact to national security, and any
other relevant impact of specifying any
particular area as critical habitat. The
Secretary may exclude any area from
critical habitat if she determines that the
benefit of such exclusion outweighs the
benefits of specifying such area as part
of the critical habitat, unless the failure
to designate such area as critical habitat
will result in the extinction of the
species concerned. The two AFBs were
not eligible for designation through
operation of section 4(a)(3)(B) of the Act
as they had approved INRMPs, which
provided for the conservation of the
species. The two ANGR bases were
excluded through section 4(b)(2) of the
Act, since the benefits of excluding
outweigh the benefits of including those
vernal pool areas within the
designation. For a detailed discussion of
our noneconomic exclusion analysis
used in our final designation of critical
habitat for the 15 vernal pool species,
please refer to our August 6, 2003, final
designation (68 FR 46684) and in the
Exclusions section below.
Comment 13: One commenter stated
that prior designations and economic
analyses do not properly account for the
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recovery standard and the mitigation
requirements expressed by the court in
Gifford Pinchot Task Force v. U.S. Fish
and Wildlife Service, 378 F.3d 1059,
1070 (9th Cir. 2004). This commenter
stated that certain areas within Critical
Habitat Unit 12 in western Placer
County should be excluded, specifically
the Placer Vineyards site and the Rioso
property, because the Primary
Constituent Elements (PCEs) are absent.
They also stated, along with an
additional commenter, that other areas
outside this critical habitat unit should
actually be included because PCEs are
present.
Our Response: With regard to
including additional areas for critical
habitat designation, the scope of this
notice was to reexamine our previous
noneconomic exclusions and to more
fully explain our rationale for any
noneconomic exclusions we make
subsequent to the re-examination. We
will consider all comments received,
and if we propose additional exclusions
for non-economic reasons or any other
reason, we will propose those
exclusions and solicit additional
comments when we reopen the
comment period for the draft economic
analysis in the spring of 2005. Those
comments and any comments already
received will be fully considered before
sending a final rule to the Federal
Register. We will be considering the
impact of the recent 9th Circuit decision
(Gifford Pinchot Task Force v. U.S. Fish
and Wildlife Service, 378 F.3d 1059,
1070 (9th Cir. 2004)) in the economic
analysis conducted for this final rule.
Comment 14: One commenter
requested that the Service incorporate
results from Dr. Bob Holland’s recent
work regarding biogeographic
distribution of vernal pool species in
relation to their edaphic (soil related)
requirements. The commenter also
requested that the Service link critical
habitat designation to recovery plans as
long as critical habitat deadlines are
enforced.
Our Response: It is the goal of the
Service to utilize the most recent
scientific information available. In the
development of this designation, we
contacted numerous species experts and
other members of the scientific
community, including Dr. Holland. In
developing critical habitat designations,
we analyze all pertinent scientific and
commercial information available to
make our final determinations. This
information would include any
scientific information that was used in
the development of recovery plans for
the specific species. In the case of the
15 vernal pool species, we used, among
other sources of information, scientific
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information gathered during the
recovery planning process. On
November 18, 2004, the draft Vernal
Pool Recovery Plan for Vernal Pool
Ecosystems in California and Southern
Oregon was published in the Federal
Register (69 FR 67601). We used the
scientific information compiled in the
draft recovery plan in this final
determination; however, we will reexamine the designation in light of any
significant information should we
become aware of such information and
make a final determination by July 31,
2005.
Issue 2—Costs and Regulatory Burden
Comment 15: The military, notably
the California Army National Guard,
specifically Camp Roberts and Fort
Hunter Liggett, and the U.S. Air Force,
specifically Beale Air Force Base,
requested that critical habitat be
excluded on the four bases. Designation
of critical habitat would increase the
costs and regulatory requirements and
hamper the military from carrying out
its mission objectives for the bases.
Designation of critical habitat would
adversely affect national security by
diminishing the military’s ability to
support realistic and effective military
operations.
Our Response: We have not
designated critical habitat on two AFBs
based on section 4(a)(3)(B) of the Act
and excluded the two Army Bases from
final designation of critical habitat
pursuant to section 4(b)(2) of the Act.
Please refer to the Relationship of
Critical Habitat to Military Lands
section of this final rule for a detailed
discussion of our rationale for not
including or excluding these military
bases pursuant to section 4(a)(3)(B) or
4(b)(2) of the Act.
Comment 16: The Placer County
Board of Supervisors and one other
commenter stated that critical habitat
designation within the County places a
disproportionate amount of the
regulatory burden on western Placer
County. Western Placer County contains
the infrastructure to support the
majority of the projected growth within
the entire County and, therefore, growth
in this portion of the County would be
hindered by the regulatory burden of the
designation of critical habitat.
Our Response: The scope of this
notice and resulting analysis was to seek
comment on the noneconomic
exclusions previously excluded in our
final determination of critical habitat
(68 FR 46684). We will be conducting a
new economic analysis and will finalize
economic exclusions in the final rule in
July 2005. This comment will also be
addressed at that time.
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Comment 17: One commenter
suggested that the National Wildlife
Refuges, State Wildlife Areas, and
Ecological Reserves all provide
economic benefits from wildlife
viewing, photography, hunting, and
fishing. The Commenter requested that
the Service quantify these benefits using
visitation records as part of the Service’s
re-evaluation of special lands
exclusions.
Our Response: We agree that National
Wildlife Refuges, State Wildlife Areas
and Ecological Reserves provide
benefits in the form of recreational
opportunities. However, these benefits
will remain regardless of whether these
areas are designated as critical habitat.
These benefits are not due to a critical
habitat designation, rather, they result
from the legal authorities establishing
these areas, such as the National
Wildlife Refuge System Administration
Act, the Refuge Recreation Act, and
other authorities, all of which are
independent of critical habitat
designations.
Issue 3—Procedural Concerns
Comment 18: One commenter stated
that the 30-day comment period for the
proposed rule violated 50 CFR
424.16(c)(2) and requested that we
extend the comment period on the reevaluation of noneconomic exclusions
for a total or 60 days to allow for
additional outreach to interested parties.
Our Response: An additional public
comment period of at least 30 days will
open once the draft economic analysis
has been completed prior to the
finalization of the rule in July.
Comment 19: One commenter stated
that the maps of the lands being
considered for removal from the exempt
status were not readily available and
accessible to the public in a timely
manner.
Our Response: Maps and Geographic
Information System (GIS) maps of the
final designation published in August of
2003 (68 FR 46684) were available
through our Sacramento and Regional
Web sites as identified in the proposed
rule (69 FR 77700). Specific maps
identifying the exclusion areas and any
other information requested by the
public were made available upon
request on an individual basis. Because
this rulemaking is subject to a courtimposed deadline, the accelerated
schedules of this designation as well as
budget and staffing constraints had left
us with a limited amount of time and
resources to post maps for the December
28, 2004, Federal Register document
specifically identifying each exclusion
area.
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Comment 20: One commenter stated
that the Interior Secretary should not
use broad discretion to override critical
habitat designation decisions that are
made by Service biologists, as
exemplified by the proposed special
lands exemptions, because it opens the
door for political manipulation. The
commenter noted that economic factors
are important and relevant, but should
not be allowed to impede recovery,
particularly when interim analysis fails
to quantify benefits. In addition, this
commenter stated that biology, rather
than politics, should be the driving
force behind critical habitat designation.
Our Response: Section 4(b)(2) of the
Act requires us to designate critical
habitat on the basis of the best scientific
and commercial information available,
and to consider the economic and other
relevant impacts of designating a
particular area as critical habitat. We
may exclude areas from critical habitat
upon a determination that the benefits
of exclusions outweigh the benefits of
specifying such areas as critical habitat.
The Congressional record is clear that
Congress contemplated occasions where
the Secretary could exclude the entire
designation. In addition, the discretion
that Congress anticipated would be
exercised in Section 4(b)(2) of the Act is
extremely broad. ‘‘The consideration
and weight given to any particular
impact is completely within the
secretary’s discretion’’ (Congressional
Research Service 1982). We cannot
exclude areas from critical habitat when
the exclusion will result in the
extinction of the species concerned. We
will be analyzing the economic costs
associated with the proposed
designation and re-evaluate the
economic exclusions based on the new
analysis when it becomes available. The
public will have an opportunity to
comment on the analysis at that time.
Summary of Changes From the
Previous Final Rule
In development of the original final
designation of critical habitat for Four
Vernal Pool Crustaceans and Eleven
Vernal Pool Plants in California and
Southern Oregon, significant revisions
to the proposed critical habitat
designation were made based on review
of public comments received on the
proposed designation, the Draft
Economic Analysis (DEA), and further
evaluation of existing protection on
lands proposed as critical habitat. These
revisions relied on legal authorities and
requirements provided in the Act. This
re-evaluation of those exclusions relies
on the same legal authorities.
In analyzing the proposed exclusions,
we contacted representatives from State
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Wildlife Areas and Ecological Reserves,
the four military bases, and the
Mechoopda Tribe to verify that no
significant changes to vernal pool
habitat or their management have
occurred since the August 6, 2003, final
rule. After reviewing the public
comments received and the previously
proposed and final designations of
critical habitat for the 4 vernal pool
crustaceans and 11 vernal pool plants in
California and southern Oregon, we find
that the noneconomic exclusions were
based on the best available science and
that the benefits of excluding these areas
outweighs the benefits of inclusion. As
a result we have determined that no
significant boundary changes to the
noneconomic exclusions should occur
to the August 6, 2003, final rule (68 FR
46684). Where we have received new
information was included in our
reanalysis. In addition, we have
expanded our discussion of the analysis
conducted on each of the exclusions.
Critical Habitat
This rule focuses on the reanalysis
and evaluation of the non-economic
exclusions from critical habitat. For that
reason, much of the August 6, 2003,
final rule describing the basis for
designation is unchanged. Accordingly,
for all discussions other than those
related to non-economic exclusions we
refer you to the August 6, 2003, final
designation (68 FR 46684).
On the basis of the final economic
analysis and other relevant impacts, as
outlined under section 4(b)(2) of the
Act, and the economic effects associated
with this rule, certain exclusions were
made to our final designation. The
Service will be reanalyzing the
economic effects of the critical habitat
designation over the entire designation.
Our original rule excluded five
Counties: Butte, Madera, Merced,
Sacramento, and Solano Counties. That
exclusion was based on a comparison of
the economic effects of the designation
among the counties, and excluded those
with relatively higher effects. At the
time, the economic effects were
aggregated on a countywide basis,
which limited our ability to make
exclusions on anything less than a
county-level. Pursuant to the October
28, 2004, court order, the Service is
reanalyzing the economic effects of the
entire designation and will make its
final critical habitat designation and any
economic exclusions based on this more
detailed analysis. A Federal Register
notice announcing the availability of the
draft economic analysis will be
published and the public will have the
opportunity to comment on the
document.
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Section 4(a)(3)(B) of the Act
Section 318 of fiscal year 2004 the
National Defense Authorization Act
(Public Law No. 108–136) amended the
Endangered Species Act to address the
relationship of Integrated Natural
Resources Management Plans (INRMPs)
to critical habitat by adding a new
section 4(a)(3)(B). This provision
prohibits the Service from designating
as critical habitat any lands or other
geographical areas owned or controlled
by the Department of Defense, or
designated for its use, that are subject to
an INRMP prepared under section 101
of the Sikes Act (16 U.S.C. 670a), if the
Secretary of the Interior determines in
writing that such plan provides a benefit
to the species for which critical habitat
is proposed for designation.
This provision was added subsequent
to our final designation of critical
habitat in 2003. However, its provisions
apply to this designation. Accordingly
the Service does not have the authority
to designate Beale Air Force Base or
Travis Air Force Base as those facilities
have existing INRMPs that provide a
benefit to the species.
Noneconomic Exclusions Under Section
4(b)(2) of the Act
As noted earlier, section 4(b)(2) of the
Act states that critical habitat shall be
designated, and revised, on the basis of
the best available scientific data after
taking into consideration the economic
impact, national security impact, and
any other relevant impact of specifying
any particular area as critical habitat.
An area may be excluded from critical
habitat if it is determined that the
benefits of exclusion outweigh the
benefits of specifying a particular area
as critical habitat, unless the failure to
designate such area as critical habitat
will result in the extinction of the
species. The following paragraphs will
provide detail as to the basis for the
non-economic exclusions that we have
analyzed and found appropriate.
A total of approximately 1,184,513 ac
(479,356 ha) of land falls within the
boundaries of designated critical habitat
of those lands we propose to exclude:
• Lands within the boundaries of
Habitat Conservation Plans,
• National Wildlife Refuge lands and
National fish hatchery lands (33,097 ac
(13,394 ha)),
• State lands within ecological
reserves and wildlife management areas
(20,933 ac (8,471 ha)),
• Department of Defense lands within
Fort Hunter Liggett Army installation
(16,583 ac (6,711 ha)),
• Tribal lands managed by the
Mechoopda Tribe (644 ac (261 ha)),
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• The Santa Rosa Plateau Ecological
Reserve (10,200 ac (4,128 ha)) from the
final designation.
Habitat Conservation Plans
(1) Benefits of Inclusion
The benefits of including HCPs or
NCCP/HCPs in critical habitat are small
to nonexistent. The principal benefit of
any designated critical habitat is that
federally funded or authorized activities
in such habitat that may affect it require
consultation under section 7 of the Act.
Such consultation would ensure that
adequate protection is provided to avoid
adverse modification of critical habitat.
An HCP application must be itself
consulted upon. While this consultation
will not look specifically at the issue of
adverse modification to critical habitat,
unless critical habitat has already been
designated within the proposed plan
area, it will determine if the HCP
jeopardizes the species in the plan area.
Therefore, any federal activity that is
consistent with the terms of the HCP
and IA would be very unlikely to have
an effect on the primary constituent
elements of habitat that would
otherwise be designated as critical
habitat would not serve the intended
conservation role for the species.
HCPs/NCCPs are already designed to
ensure the long-term survival of covered
species within the entire plan area
rather than just those areas with a
federal nexus. Where we have approved
HCPs or NCCP/HCPs, lands will
normally be protected in reserves and
other conservation lands by the terms of
the HCPs or NCCP/HCPs and their
Implementing Agreements (IAs). These
HCPs or NCCP/HCPs and IAs include
management measures and protections
for conservation lands designed to
protect, restore, and enhance their value
as habitat for covered species and
provide the same benefits for any
species that relies on the same
ecosystems.
Another possible benefit to including
these lands is that the designation of
critical habitat can serve to educate
landowners and the public regarding the
potential conservation value of an area.
This may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
However in the case of HCCP/NCCPs
the public notice and comment and
final publication in the Federal Register
of the final provisions provide virtually
the same notice as a critical habitat
designation.
Because of the above, we conclude
that any benefits that accrue to habitat
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in an HCP from a critical habitat
designation are small to non-existant.
(2) Benefits of Exclusion
The benefits of excluding HCPs from
critical habitat are significant. In an
approved HCP, lands that might
ordinarily be identified as critical
habitat for covered species will
normally be protected in reserves and
other conservation lands by the terms of
the HCP and its associated
implementing agreement (IA). Since
these large regional HCPs address land
use within the plan boundaries, habitat
issues within the plan boundaries have
been addressed in the HCP and the
consultation on its associated permit. In
the consultation we are required to if
the action jeopardizes the listed species.
In the case of critical habitat we analyze
whether the function of the habitat for
recovery of the species will be reduced
or eliminated by the proposed action.
Designating these areas will likely
have an adverse impact on the
partnerships that we have developed
with the local jurisdiction(s) and project
proponents in the development of the
HCP and NCCP/HCP, and in the
management of the other excluded areas
to benefit the species. Excluding these
areas will promote future partnerships,
and avoid duplicative regulatory burden
on cooperating parties. We have
received substantial comments from
various parties in comment periods on
this and many other critical habitat
rules that those regulatory burdens can
be significant to private and public
parties. In part, it is to avoid the
regulatory costs associated with projectby-project consultations that provides
an incentive for private landowners to
enter into HCPs. The Service achieves
far more conservation when entire
regions can be subject to the HCP permit
issuance standards instead of just
projects with a federal nexus. Failure to
exclude HCPs from critical habitat
removes any incentive for landowners
to voluntarily participate in HCPs and
thus removes any protection for lands
with no federal nexus.
San Joaquin County Multiple Species
Habitat Conservation Plan (MSHCP)
The San Joaquin County MultiSpecies Conservation Plan (SJMSCP)
covers the entirety of San Joaquin
County and identifies the vernal pool
fairy shrimp and the vernal pool tadpole
shrimp as covered species. The SJMSCP
has identified areas where growth and
development are expected to occur
(build-out areas). A portion of one of
these build-out areas overlaps with the
San Joaquin Unit 18 for vernal pool fairy
shrimp. The SJMSCP has been finalized
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11149
and includes participants from seven
cities; the County of San Joaquin, the
San Joaquin Council of Governments;
various water districts within the
County; the California Department of
Transportation; East Bay Municipal
Utility District; and the San Joaquin
Area Flood Control District. The
SJMSCP is a subregional plan under the
State’s Natural Community
Conservation Planning (NCCP) program
and was developed in cooperation with
California Department of Fish and Game
(CDFG). Within the county wide
planning area of the SJMSCP,
approximately 71, 837 ac (29,071 ha) of
diverse habitats are proposed for
conservation. The proposed
conservation of 71, 837 ac (29,071 ha)
will compliment other, existing natural
and open space areas that are already
conserved through other means (e.g.,
State Parks, USFWS, and County Park
lands). For a complete discussion of this
HCP, please refer to our August 6, 2003,
final designation (68 FR 46684).
Western Riverside Multiple Species
Habitat Conservation Plan (MSHCP)
The Western Riverside MSHCP has
been finalized since the issuance of the
August 6, 2003, rule. The Western
Riverside MSHCP includes participants
from 14 cities; the County of Riverside,
including the County Flood Control and
Water Conservation District; the County
Waste Department; the California
Department of Transportation; and the
California Department of Parks and
Recreation. The Western Riverside
MSHCP is a subregional plan under the
State’s Natural Community
Conservation Planning (NCCP) program
and was developed in cooperation with
California Department of Fish and Game
(CDFG). Within the 1.26-million-acre
(510,000-ha) planning area of the
MSHCP, approximately 153,000 ac
(62,000 ha) of diverse habitats are
proposed for conservation. The
proposed conservation of 153,000 ac
(62,000 ha) will compliment other,
existing natural and open space areas
that are already conserved through other
means (e.g., State Parks, USFS, and
County Park lands). For a complete
discussion of this HCP, please refer to
our August 6, 2003, final designation
(68 FR 46684).
The Skunk Hollow mitigation bank
(the correct title is the Barry Jones
Wetland Mitigation Bank) and the Santa
Rosa Plateau Preserve are within the
planning area of the Western Riverside
County MSHCP. Both of these areas are
conserved as part of the Western
Riverside County MSHCP. The
management actions undertaken as part
of the Western Riverside County
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MSHCP benefit the endangered
Riverside fairy shrimp, threatened
Navarretia fossalis, and the endangered
Oructtia californica-vernal pool species,
which are included as covered species
under this regional HCP, will provide
equal conservation benefits for the
vernal pool fairy shrimp.
The Skunk Hollow vernal pool basin
(Unit 35) consists of a single, large
vernal pool and its essential associated
watershed in western Riverside County
and is part of the Western Riverside
County MSHCP. Several federally listed
species have been documented as
occurring in the Skunk Hollow vernal
pool basin. These include the vernal
pool fairy shrimp (Simovich, in litt.
2001), the Riverside fairy shrimp
(Service 2001), Navarretia fossalis, and
Orcuttia californica (Service 1998). The
vernal pool complex and watershed are
also currently protected as part of a
reserve established within an approved
wetland mitigation bank in the Rancho
Bella Vista HCP area, and as part of the
conservation measures contained in the
Assessment District 161 Subregional
HCP (AD161 HCP), all of which are now
incorporated into the Western Riverside
County MSHCP. Although the Skunk
Hollow does not identify the vernal pool
fairy shrimp as a covered species it does
list the endangered Riverside fairy
shrimp as a covered species and
protects the vernal pool habitat within
the area. Since a critical habitat
designation is designed to conserve the
habitat type or ecosystem (in this case
vernal pools) and not the species
specifically, the HCP and associated
reserve and mitigation bank don’t need
to name the species specifically in order
to provide benefits, as long as the
ecosystem upon which the species relies
is preserved. In this case, since species
which rely on the same ecosystem are
the target of the HCP and mitigation
bank, we are able to conclude that the
plan will provide the necessary
management to protect the critical
habitat. In addition, since the entire
habitat area is addressed under the HCP,
preserve, and mitigation bank and not
just habitat with a federal nexus, the
existing management already provides
more protection than can be provided
by a critical habitat designation.
The Western Riverside County
MSHCP also encompasses lands within
the Santa Rosa Plateau Ecological
Reserve (SRPER) (Unit 34 for vernal
pool fairy shrimp), an area that covers
approximately 8,300 ac (3360 ha) near
the town of Murrieta, California. The
SRPER is situated on a large mesa
composed of basaltic and granitic
substrates and contains one of the
largest vernal pool complexes remaining
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in southern Riverside County. Several
endemic vernal species are known to
occur within the complex, including the
vernal pool fairy shrimp, Riverside fairy
shrimp, Santa Rosa fairy shrimp
(Linderiella santarosae), Orcuttia
californica, Brodiaea filifolia (Threadleaved brodiaea), and Eryngium
aristulatum var. parishii (San Diego
button-celery.) Established in 1984, the
SRPER is owned by The Nature
Conservancy (TNC), and is
cooperatively managed by TNC, the
Riverside County Regional Park and
Open Space District, CDFG, and the
Service.
TNC has transferred ownership of
SRPER to CDFG. As a signatory to the
agreement, CDFG has will oversee the
SRPER in a manner consistent with the
present conservation management
scheme agreed to by the cooperating
agencies. The CDFG has a broad
authority to protect lands and conserve
species (Fish and Game Code §§ 2700 et
seq.). Designation of critical habitat
would not have any beneficial effect of
the present management of the vernal
pool complex on the SRPER.
(1) Benefits of Inclusion
The principal benefit of any
designated critical habitat is that
federally funded or authorized activities
in such habitat require consultation
under section 7 of the Act. Such
consultation would ensure that
adequate protection is provided to avoid
adverse modification of critical habitat.
Where HCPs are in place, our
experience indicates that this benefit is
small or nonexistent. The issuance of a
permit (under section 10(a) of the Act)
in association with an HCP application
is subject to consultation under section
7(a)(2) of the Act. During consultation
on permit issuance, we must address the
issue of destruction or adverse
modification of critical habitat for
vernal pool species and any other
species protected by the plan. In an
approved HCP, lands we ordinarily
would define as critical habitat for
covered species will normally be
protected in reserves and other
conservation lands by the terms of the
HCP and its its associated implementing
agreement (IA). Since these large
regional HCPs address land use within
the plan boundaries, habitat issues
within the plan boundaries have been
addressed in the HCP and the
consultation on the permit associated
with the HCP. This requires us to make
a determination as to the appreciable
reduction in the survival and recovery
of a listed species, in the case of critical
habitat by reducing the function of the
habitat so designated. Therefore, any
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federal activity that is consistent with
the terms of the HCP and IA would be
very unlikely to have an effect on the
primary constituent elements of habitat
that would otherwise be designated as
critical habitat would not serve the
intended conservation role for the
species.
We have determined that the
management and protections afforded
the vernal pool fairy shrimp in the
build-out areas through the SJMSHCP
and the Western Riverside County
MSHCP are adequate for the long-term
conservation of these species. In
addition, protections afforded by HCPs,
management plans, and other landscape
management programs go beyond any
protections provided by a critical
habitat designation. A critical habitat
designation only protects areas that are
subject to a federal action. HCPs and
other management plans are not
dependent on federal action to provide
species protection. The Western
Riverside County MSHCP provides
protection for the affected vernal pool
complex and its associated watershed in
perpetuity. Therefore it addresses the
primary conservation needs of the
species by protecting the ecosystem
upon which it relies. The management
and protections afforded the vernal pool
and Riverside fairy shrimp provide for
the long-term conservation of this pool
and vernal pool fairy shrimp.
The education benefits of critical
habitat, including informing the public
of areas that are important for long-term
survival and conservation of the species,
are essentially the same as those that
would occur from the public notice and
comment procedures required to
establish a HCP or NCCP/HCP, as well
as the public participation that occurs in
the development of many regional HCPs
or NCCP/HCPs. Therefore, the benefits
of designating these areas as critical
habitat are low.
(2) Benefits of Exclusion
In contrast, the benefits of excluding
these areas from critical habitat, are
more significant. Designating these areas
will likely have an adverse impact on
the partnerships that we have developed
with the local jurisdiction and project
proponents in the development of the
HCP and NCCP/HCP, and in the
management of the other excluded areas
to benefit the species. Excluding these
areas will promote future partnerships,
and avoid duplicative regulatory burden
on cooperating parties. We have
received substantial comments from
various parties in comment periods on
this and many other critical habitat
rules that those regulatory burdens can
be significant to private and public
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parties. Excluding these areas from
critical habitat removes those concerns
and provides an incentive to place lands
that would not ordinarily be protected
under regulatory management to protect
the ecosystem.
(3) Benefits of Exclusion Outweigh the
Benefits of Inclusion
Section 4(b)(2) of the Act requires us
to consider other relevant impacts, in
addition to economic and national
security impacts, when designating
critical habitat. Section 10(a)(1)(B) of the
Act authorizes us to issue to nonFederal entities a permit for the
incidental take of endangered and
threatened species. This permit allows a
non-Federal landowner to proceed with
an activity that is legal in all other
respects, but that results in the
incidental taking of a listed species (i.e.,
take that is incidental to, and not the
purpose of, the carrying out of an
otherwise lawful activity). The Act
specifies that an application for an
incidental take permit must be
accompanied by a conservation plan,
and specifies the content of such a plan.
The purpose of such an HCP is to
describe and ensure that the effects of
the permitted action on covered species
are adequately minimized and
mitigated, and that the action does not
appreciably reduce the survival and
recovery of the species.
Approved and permitted HCPs are
designed to ensure the long-term
survival of covered species within the
plan area. Where we have an approved
HCP, the areas we ordinarily would
designate as critical habitat for the
covered species will be protected
through the terms of the HCPs and their
IAs. These HCPs and IAs include
management measures and protections
that are crafted to protect, restore, and
enhance their value as habitat for
covered species. We have reviewed and
evaluated HCPs, NCCP/HCPs, and other
cooperatively managed lands at the
SRPER currently with approved and
implemented management plans within
the areas being designated as critical
habitat for the vernal pool crustaceans
and plants. Based on this evaluation, we
find that the benefits of exclusion
outweigh the benefits of designating the
Western Riverside County MSHCP, and
a portion of the San Joaquin County
NCCP/MSHCP as critical habitat.
For these reasons, then, we believe
that designation of critical habitat has
little benefit in areas covered by these
HCPs, as the referenced HCP and its
associated IA are legally operative and
adequately protects the habitat or
ecosystem upon which the listed
species rely and for which critical
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habitat is being designated. We also
believe that the measures being taken by
the managers of the Santa Rosa Plateau
Ecological Reserve will conserve and
benefit the vernal pool fairy shrimp. The
exclusion of the HCP areas and
Ecological Reserve from the designation
will not result in the extinction of the
vernal pool fairy shrimp.
Relationship of Critical Habitat to
National Wildlife Refuge and National
Fish Hatchery Lands
We have determined that proposed
critical habitat units on the Sacramento,
San Francisco Bay, San Luis, and Kern
National Wildlife Refuge Complexes,
and the Coleman National Fish
Hatchery Complex, warrant exclusion
pursuant to section 4(b)(2) of the Act
because the benefits of excluding these
lands from final critical habitat
outweigh the benefits of their inclusion.
For a complete discussion of these
NWRs and NFHLs, please refer to our
August 6, 2003 final designation (68 FR
46684).
(1) Benefits of Inclusion
There is minimal benefit from
designating critical habitat for the vernal
pool species within National Wildlife
Refuge and National Fish Hatchery
lands because these lands are already
managed for the conservation of
wildlife. The benefits of including these
lands are low, since their purpose is to
preserve natural resource values, a
purpose that is not incompatible with
critical habitat designation.
Critical habitat designation provides
little gain in the way of increased
recognition for special habitat values on
lands that are expressly managed to
protect and enhance those values. All of
these refuges are developing
comprehensive resource management
plans that will provide for protection
and management of all trust resources,
including federally listed species and
sensitive natural habitats. These plans,
and many of the management actions
undertaken to implement them must
also complete consultation under
section 7 of the Act. The comprehensive
resource management plan for the Kern
National Wildlife Refuge Complex has
been completed and the associated
biological opinion concluded that its
implementation would not jeopardize
the continued existence of these species
(Service 2004). Therefore, any federal
activity that is consistent with the terms
of the comprehensive resource
management plan would be very
unlikely to have an effect on the
primary constituent elements of habitat
that would otherwise be designated as
critical habitat would not serve the
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11151
intended conservation role for the
species.
(2) Benefits of Exclusion
The consultation requirement
associated with critical habitat on the
National Wildlife Refuge and Fish
Hatchery lands would require the use of
resources to ensure regulatory
compliance that could otherwise be
used for on-the-ground management of
the targeted listed or sensitive species.
Therefore, the benefits of exclusion
include relieving additional regulatory
burden that might be imposed by the
critical habitat, which could divert
resources from substantive resource
protection to procedural regulatory
efforts.
(3) Benefits of Exclusion Outweigh the
Benefits of Inclusion
We believe that the benefit of
including these lands in critical habitat
is low because they already are publicly
owned and managed to protect and
enhance unique and important natural
resource values. In addition, by
designating these lands the Service
would be required to conduct internal
consultations on activities to determine
whether they adversely modify critical
habitat. This extra and unnecessary
regulatory process will require funding
that must be diverted from the
management of the resource. The
Service would prefer to allocate
taxpayer funds to actions that more
directly benefit species on the ground.
Exclusion of these lands will not
increase the likelihood that management
activities would be proposed which
would appreciably diminish the value
of the habitat for conservation of the
species. Further, such exclusion will not
result in the extinction of the vernal
pool species. We, therefore, conclude
that the benefits of excluding refuge and
Fish Hatchery lands from the final
critical habitat designation outweigh the
benefits of including them.
In accordance with section 4(b)(2) of
the Act, we have excluded lands within
the Sacramento, San Francisco Bay, San
Luis, and Kern National Wildlife Refuge
Complexes, and the Coleman National
Fish Hatchery Complex from final
critical habitat.
Relationship of Critical Habitat to
State-Managed Ecological Reserves and
Wildlife Areas
We contacted local California
Department of Fish and Game (CDFG)
resource managers and staff at the
various locations to verify that no
significant changes to vernal pool
habitat and the management of this
habitat have occurred since the August
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6, 2003, final rule. These areas continue
to be managed for the benefit of
common and special-status species and
their habitats.
We proposed as critical habitat, but
have now considered for exclusion from
the final designation, the CDFG owned
lands within the Battle Creek, Big
Sandy, Grizzly Island, Hill Slough,
North Grasslands, and Oroville Wildlife
Areas and State-owned lands within
Allensworth, Boggs Lake, Butte Creek
Canyon, Calhoun Cut, Carrizo Plains,
Dales Lake, Fagan Marsh, Phoenix Field,
San Joaquin River, Stone Corral, and
Thomes Creek Ecological Reserves.
These State Managed Ecological
Reserves and Wildlife Areas were
excluded from critical habitat
designation in our August 6, 2003, final
designation (68 FR 46684).
(1) Benefits of Inclusion
The designation of critical habitat
would require consultation with us for
any action undertaken, authorized, or
funded by a Federal agency that may
affect the species or its designated
critical habitat. However, the
management objects for State ecological
reserves already include specifically
managing for targeted listed and
sensitive species; therefore, the benefit
from additional consultation is likely
also to be minimal.
The State of California establishes
ecological reserves to protect threatened
or endangered native plants, wildlife, or
aquatic organisms or specialized habitat
types, both terrestrial and nonmarine
aquatic, or large heterogeneous natural
gene pools (Fish and Game Code
§ 1580). They are to be preserved in a
natural condition, or are to be provided
some level of protection as determined
by the commission, for the benefit of the
general public to observe native flora
and fauna and for scientific study or
research (Fish and Game Code § 1584).
Wildlife areas are for the purposes of
propagating, feeding, and protecting
birds, mammals, and fish (Fish and
Game Code § 1525); however, they too
provide habitat and are managed for the
benefit of listed and sensitive species
(CDFG in litt. 2003).
Take of species except as authorized
by State Fish and Game Code is
prohibited on both State ecological
reserves and wildlife areas (Fish and
Game Code § 1530 and § 1583). While
public uses are permitted on most
wildlife areas and ecological reserves,
such uses are only allowed at times and
in areas where listed and sensitive
species are not adversely affected (CDFG
in litt. 2003). The management
objectives for these State lands include:
‘‘to specifically manage for targeted
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listed and sensitive species to provide
protection that is equivalent to that
provided by designation of critical
habitat; to provide a net benefit to the
species through protection and
management of the land; to ensure
adequate information, resources, and
funds are available to properly manage
the habitat; and to establish
conservation objectives, adaptive
management, monitoring and reporting
processes to assure an effective
management program, and monitoring
and reporting processes to assure an
effective management program (CDFG,
in litt. 2003).’’ In summary, we believe
that the benefits of inclusion for these
lands are minimal as these lands already
are publicly owned and managed to
protect and enhance unique and
important natural resource values.
Therefore, any federal activity that is
consistent with the State code for
activity on both State ecological reserves
and wildlife areas would be very
unlikely to have an effect on the
primary constituent elements of habitat
that would otherwise be designated as
critical habitat would not serve the
intended conservation role for the
species.
(2) Benefits of Exclusion
While the consultation requirement
associated with critical habitat on the
CDFG ecological reserves and wildlife
areas add little benefit, it would require
the use of resources to ensure regulatory
compliance that could otherwise be
used for on-the-ground management of
the targeted listed or sensitive species,
in addition, there is no guarantee that
any federal action that would require
consultation would take place on such
as the state preserves. In the past, the
State has expressed a concern that the
designation of these lands and
associated regulatory requirements may
cause delays that could be expected to
reduce their ability to respond to vernal
pool management issues that arise on
the ecological reserves and wildlife
areas. Therefore, the benefits of
exclusion include relieving additional
regulatory burden that might be
imposed by the designation of critical
habitat for vernal pool species, which
could divert resources from substantive
resource protection to procedural
regulatory efforts.
(3) Benefits of Exclusion Outweigh the
Benefits of Inclusion
We believe that the benefits of
inclusion for these lands are low as
these lands already are publicly-owned
and managed by a wildlife agency to
protect and enhance unique and
important natural resource values.
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Therefore, designation of critical habitat
would add little value. The benefits of
exclusion are higher, as federal actions
on these lands may result in the need
for consultation, most often on activities
that would enhance wildlife
conservation. These consultations
would result in additional
administrative burdens without
significant accompanying conservation
benefits.
We, therefore, conclude that the
benefits of excluding CDFG ecological
reserves and wildlife areas from the
final critical habitat designation
outweigh the benefits of including them.
Such exclusion will not result in the
extinction of the vernal pool species.
Further, we do not believe that such
exclusion will increase the likelihood
that activities would be proposed that
would appreciably diminish the value
of the habitat for the conservation of
these species.
In accordance with section 4(b)(2) of
the Act, we have excluded California
Department of Fish and Game-owned
lands within the Battle Creek, Big
Sandy, Grizzly Island, Hill Slough,
North Grasslands, and Oroville Wildlife
Areas and State-owned lands within
Allensworth, Boggs Lake, Butte Creek
Canyon, Calhoun Cut, Carrizo Plains,
Dales Lake, Fagan Marsh, Phoenix Field,
San Joaquin River, Stone Corral, and
Thomes Creek Ecological Reserves.
Relationship of Critical Habitat to
Military Lands
As stated above we are prohibited
from designating Military lands with
approved INRMPs as critical habitat
according to section 4(a)(3)(B) of the Act
as long as the Secretary of the Interior
determines in writing that such plan
provides a benefit to the species for
which critical habitat is proposed for
designation.
Section 4(b)(2) of the Act requires us
to base critical habitat designations on
the best scientific and commercial data
available, after taking into consideration
the economic and any other relevant
impact of specifying any particular area
as critical habitat. It also requires us to
gather information regarding the
designation of critical habitat and the
effects thereof from all relevant sources,
including the Unites States Air Force
and the United States Army. The
following discussions are provided on
Travis AFB, Beale AFB, Camp Roberts,
and Fort Hunter Liggett.
Travis Air Force Base
Travis AFB has several vernal pool
complexes that support the vernal pool
fairy shrimp and Lasthenia conjugens
and also contain PCEs for Neostapfia
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colusana, Conservancy fairy shrimp,
Tuctoria mucronata, and vernal pool
tadpole shrimp. As a result of wetland
surveys, Travis AFB had identified 235
vernal pools on approximately 100 ac
(40 ha) of the 1,100 ac (445 ha) that are
not developed on the base. To date, only
Lasthenia conjugens and the vernal fairy
shrimp have been discovered on Travis
AFB within these 100 ac (40 ha). Travis
AFB has a Service approved INRMP in
place that provides a benefit for the
vernal pool fairy shrimp and Lasthenia
conjugens and provides protection of
the PCEs for Neostapfia colusana,
Conservancy fairy shrimp, Tuctoria
mucronata, and vernal pool tadpole
shrimp. As a result we are prohibited
from designating critical habitat on
Travis AFB in compliance with our
section 4(a)(3)(B) responsibilities.
Beale Air Force Base
Beale AFB has several substantial
vernal pool complexes that support the
vernal pool fairy shrimp and vernal pool
tadpole shrimp, especially on the
western side of the base. Beale AFB
completed their INRMP in 1999. The
completed INRMP provides for
management and conservation of vernal
pools with the base and establishes a
Vernal Pool Conservation and
Management Area to protect vernal pool
complexes on the western side of the
base. Beale AFB has provided an
updated INRMP for the Service’s
review. The Beale AFB is also currently
preparing a Habitat Conservation
Management Plan (HCMP) for the area.
We will consult with Beale AFB under
section 7 of the Act on the development
and implementation of the revised
INRMP, HCMP and base comprehensive
plan. A final revised and Service
approved INRMP is expected to be
completed by March 2005. Beale AFB
has a Service approved INRMP in place
that provides a benefit for the vernal
pool fairy shrimp and vernal pool
tadpole shrimp. As a result we are
prohibited from designating critical
habitat on Beale AFB in compliance
with our section 4(a)(3)(B)
responsibilities.
Camp Roberts
Camp Roberts has substantial vernal
pool complexes that support the vernal
pool fairy shrimp. Camp Roberts
completed their INRMP in 1999. The
completed INRMP provides for the
vernal pool fairy shrimp. We will
consult with Camp Roberts under
section 7 of the Act on the development
and implementation of the INRMP.
Camp Roberts has a final INRMP in
place that provides a benefit for the
vernal pool fairy shrimp. As a result we
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are prohibited from designating critical
habitat on Camp Roberts (13,247 ha
(33,117 ac)) in compliance with our
section 4(a)(3)(B) responsibilities.
Fort Hunter Liggett
Fort Hunter Liggett (6,519 ha (16,298
ac)) and Camp Roberts (13,247 ha
(33,117 ac)) occur in San Luis Obispo
and Monterey Counties. Fort Hunter
Liggett has submitted draft INRMPs for
our review. We are currently reviewing
the INRMPs and expect completion of
the section 7 consultation by April
2005. Fort Hunter Ligget has several
substantial vernal pool complexes that
support the vernal pool fairy shrimp.
11153
(3) The Benefits of Exclusion Outweigh
the Benefits of Inclusion
Based on the above considerations,
and consistent with the direction
provided in section 4(b)(2) of the Act,
we have determined that the benefits of
excluding Fort Hunter Liggett as critical
habitat for vernal pool fairy shrimp
(Unit 29) outweigh the benefits of
including them as critical habitat for
vernal pool species. We base this
determination on the need for
maintaining mission-critical military
training activities. Further, we have
determined that excluding Fort Hunter
Liggett will not result in the extinction
of the vernal pool fairy shrimp.
(1) Benefits of Inclusion
Relationship of Critical Habitat to
Tribal Lands
Inclusion of these military lands
could provide additional areas of
conserved species habitat. However, the
principal benefit of any designated
critical habitat is that federally funded
or authorized activities in such habitat
that may affect it require consultation
under section 7 of the Act. Such
consultation would ensure that
adequate protection is provided to avoid
adverse modification of critical habitat.
The military also has an obligation
under the Sykes Act, and Section 7(a)(1)
of the Act to conserve threatened and
endangered species on lands under its
jurisdiction. Therefore, the benefits of
inclusion are low.
Section 4(b)(2) of the Act requires us
to gather information regarding the
designation of critical habitat and the
effects thereof from all relevant sources,
including Indian Pueblos and Tribes. In
accordance with Secretarial Order 3206,
American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the
Endangered Species Act (June 5, 1997);
the President’s memorandum of April
29, 1994, Government-to-Government
Relations with Native American Tribal
Governments, and Executive Order
13175, we recognize the need to consult
with federally recognized Indian Tribes
on a Government-to-Government basis.
The Secretarial Order 3206 ‘‘American
Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the
Endangered Species Act (1997)’’
provides that critical habitat should not
be designated in an area that may
impact Tribal trust resources unless it is
determined to be essential to conserve a
listed species.
(2) Benefits of Exclusion
Military operations in training areas
with listed fairy shrimp at Fort Hunter
Liggett could be modified, activities
affected include the use of field artillery
pieces, range training, drop zone use,
and use of tank trails or roads. One of
these training areas contains a multipurpose range complex that only occurs
at four military bases in the country
(FHL 2002b). Consistent access to the
facility is critical because comparable
facilities at other locations are
scheduled for use several months to
years in advance. Initiating and
completing section 7 consultations that
would arise from a critical habitat
designation would likely result in
alterations to, and delays in, training
schedules at the multi-purpose range
complex. If critical habitat is designated
on these bases, the military would need
to consider and possibly implement
alternatives that modify the timing,
location, and intensity of training
activities. Failure to complete the
training and activities these bases are
intended for would adversely affect
national security.
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The Benefits of Exclusion Outweigh the
Benefits of Inclusion
The benefits of including the Tribe’s
land are limited to minor educational
benefits. Because one or more of the
species occupies all these areas,
consultation on federal actions will
occur regardless of whether critical
habitat is designated. While some
additional benefit might accrue from
these adverse modification analyses, we
expect them to be small. Tribal areas
represent a small proportion of this
designation and the tribe has
demonstrated the will and ability to
manage these lands in a manner that
preserves their conservation benefits.
The benefits of excluding these areas
from being designated as critical habitat
are more significant, and include our
policy of maintaining a government-togovernment relationship with tribes, as
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well as encouraging the continued
development and implementation of
special management measures. For
Tribal Lands, the Mechoopda Tribe has
their own environmental agency, the
Mechoopda Environmental Protection
Agency, which is responsible for the
management of the Tribe’s natural
resources, and which recognizes the
importance of implementing
conservation measures that will
contribute to the conservation of
federally listed species on their lands.
The Mechoopda Tribe have already
demonstrated their willingness to work
with us to address the habitat needs of
listed species that may occur on
Mechoopda lands. The exclusion of
critical habitat for the Mechoopda trust
lands is consistent with our published
policies on Native American natural
resource management by allowing the
Mechoopda Tribe to manage their own
natural resources.
Based on the above considerations,
and consistent with the direction
provided in section 4(b)(2) of the Act,
we have determined that the benefits of
excluding Mechoopda Tribal land as
critical habitat outweigh the benefits of
including it as critical habitat for the
vernal pool tadpole shrimp (Unit 4) and
will not result in the extinction of the
vernal pool tadpole shrimp. For a
complete discussion of these Tribal
lands, please refer to our August 6,
2003, final designation (68 FR 46684).
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Exclusion Summary
Required Determinations
We have reviewed the overall effect of
excluding from the designated critical
habitat for the vernal pool species lands
covered by the following authorities:
The above-mentioned approved HCPs,
the State, national wildlife refuges,
national fish hatcheries, Tribal trusts,
and military installations, and we have
determined that the benefits of
excluding these areas outweigh the
benefits of including them in this
critical habitat designation. The
exclusion of vernal pool critical habitat
in Butte, Madera, Merced, Solano, and
Sacramento Counties, California, will be
evaluated in a future Federal Register
document. The lands removed from
critical habitat as a result of these
exclusions will not jeopardize the longterm survival and conservation of the
species or lead to their extinction.
We have reviewed our analyses of
Required Determinations and
subsequent conclusions that were made
in the August 6, 2003, final rule
designating critical habitat for the 15
vernal pool species (68 FR 46684). On
the basis that we are affirming our
treatment and decisions of noneconomic
exclusions from the August 2003 final
rule and are making no additional
exclusions or changes to the
designation, we believe that our
previous conclusions stand. Thus, we
refer the public to our previous analyses
and conclusions of the Required
Determinations in the August 6, 2003,
final rule.
Economic Analysis
An economic analysis of the effect of
critical habitat in the 36 counties in
California and 1 county in Oregon was
conducted for the final rule. For a
complete discussion of the economic
analysis, please refer to our August 6,
2003, final rule (68 FR 46684). A reanalysis of the economic impacts of
critical habitat designation in the five
counties that were excluded in the final
rule will be conducted in a future
Federal Register document.
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References Cited
A complete list of all references cited
herein, as well as others, is available
upon request from the Sacramento Fish
and Wildlife Office (see ADDRESSES
section).
Authors
The primary authors of this notice are
the staff of the Sacramento Fish and
Wildlife Office (see ADDRESSES section).
Dated: February 28, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 05–4173 Filed 3–7–05; 8:45 am]
BILLING CODE 4310–55–P
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]]>Agencies
[Federal Register Volume 70, Number 44 (Tuesday, March 8, 2005)]
[Rules and Regulations]
[Pages 11140-11154]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-4173]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI26
Endangered and Threatened Wildlife and Plants; Final Designation
of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal
Pool Plants in California and Southern Oregon; Re-evaluation of Non-
Economic Exclusions From August 2003 Final Designation
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; confirmation.
-----------------------------------------------------------------------
SUMMARY: We, the Fish and Wildlife Service (Service), confirm the non-
economic exclusions made to our previous final rule (August 6, 2003, 68
FR 46683, effective September 5, 2003), which designated critical
habitat pursuant to the Endangered Species Act of 1973, as amended
(Act), for 4 vernal pool crustaceans and 11 vernal pool plants. A total
of approximately 1,184,513 ac (479,356 ha) of land falls within the
boundaries of designated critical habitat. This estimate reflects
exclusion of: Lands within the boundaries of Habitat Conservation
Plans, National Wildlife Refuge lands and National fish hatchery lands
(33,097 ac (13,394 ha)), State lands within ecological reserves and
wildlife management areas (20,933 ac (8,471 ha)), Department of Defense
lands within Beale and Travis Air Force Bases as well as Fort Hunter
Liggett and Camp Roberts Army installations (64,259 ac (26,005 ha)),
Tribal lands managed by the Mechoopda Tribe (644 ac (261 ha)), and the
Santa Rosa Plateau Ecological Reserve (10,200 ac (4,128 ha)) from the
final designation. The area estimate does not reflect the exclusion of
lands within the California counties of Butte, Madera, Merced,
Sacramento, and Solano, which are excluded from the final designation
pursuant to section 4(b)(2) of the Act and pending further analysis as
directed by the October 29, 2004, order by the court.
This critical habitat designation requires us to consult under
section 7 of the Act with regard to actions authorized, funded, or
carried out by a Federal agency. Section 4 of the Act requires us to
consider economic and other relevant impacts when specifying any
particular area as critical habitat. We solicited data and comments
from the public on all aspects of the proposed rule, including data on
economic and other impacts of the designation.
[[Page 11141]]
DATES: This document confirms the non-economic exclusions made to our
previous final rule (August 6, 2003, 68 FR 46683, effective September
5, 2003), and this document is effective on March 8, 2005.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, will be
available for public inspection, by appointment, during normal business
hours at the Sacramento Fish and Wildlife Office, U.S. Fish and
Wildlife Service, 2800 Cottage, Room W-2605, Sacramento, CA 95825.
FOR FURTHER INFORMATION CONTACT: Arnold Roessler, at the Sacramento
Fish and Wildlife Office address above (telephone (916) 414-6600;
facsimile (916) 414-6710).
SUPPLEMENTARY INFORMATION:
Preamble
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat are paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 473 species or 37 percent
of the 1,264 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat. We address the habitat needs
of all 1,264 listed species through conservation mechanisms such as
listing, section 7 consultations, the Section 4 recovery planning
process, the Section 9 protective prohibitions of unauthorized take,
Section 6 funding to the States, and the Section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.
We note, however, that a recent judicial opinion, Gifford Pinchot
Task Force v. United States Fish and Wildlife Service, has invalidated
the Service's regulation defining destruction or adverse modification
of critical habitat. We are currently reviewing the decision to
determine what effect it may have on the outcome of consultations
pursuant to Section 7 of the Act.
In crafting the Act, Congress provided guidance for the exercise of
discretion by the Secretary in making critical habitat decisions. We
have applied the guidance in this rulemaking. Section 3(5)(a) of the
Act, defines critical habitat as ``(i) the specific areas within the
geographical area occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this Act, on which are
found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of this Act, upon
a determination by the Secretary that such areas are essential for the
conservation of the species.''
Section 3(5)(C) of the Act further provides that ``except in those
circumstances determined by the Secretary, critical habitat shall not
include the entire geographical area which can be occupied by the
threatened or endangered species.'' ``These provisions of section 3
authorize the exercise of discretion in determining (1) whether special
management considerations or protections may be required; (2) whether
unoccupied areas are essential for the conservation of the species; and
(3) the extent to which the entire area which can be occupied by the
species should be included in critical habitat.''
Finally, section 4(b)(2) of the Act allows the Secretary to exclude
any area from critical habitat, after considering the economic impact
and any other relevant impact of a designation, upon a determination
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless the failure to
designate such area as critical habitat will result in the extinction
of the species concerned.
The Congressional record is clear that Congress contemplated
occasions where the Secretary could exclude the entire designation. In
addition, the discretion that Congress anticipated would be exercised
in Section 4(b)(2) of the Act is extremely broad. ``The consideration
and weight given to any particular impact is completely within the
Secretary's discretion. * * *'' (Congressional Research Service 1982).
Given that section 4(a)(3)(A) of the Act requires that critical
habitat be designated concurrently with making a determination that a
species is an endangered species or a threatened species, we are
mindful of the Congressional intent with respect to listing as we
designate critical habitat. For example, section 4(a)(1) of the Act (16
U.S.C. 1533(a)(1), states that we must consider in listing
determinations, among factors, ``the inadequacy of existing regulatory
mechanisms'' (so-called ``Factor D''); and ``other natural or manmade
factors affecting its continued existence'' (referred to as ``Factor
E'').
Section 4(b)(1)(A) requires us also to ``tak[e] into account those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and food
supply, or other conservation practices, within any area under its
jurisdiction, or on the high seas.'' Read together, sections 4(a)(1)
and 4(b)(1)(A), as reflected in our regulations at 50 CFR 424.11(f),
require us to take into account any State or local laws, regulations,
ordinances, programs, or other specific conservation measures that
either positively or negatively affect a species' status (i.e.,
measures that create, exacerbate, reduce, or remove threats identified
through the section 4(a)(1) analysis). The manner in which the section
4(a)(1) factors are framed supports this conclusion. Factor (D) for
example, ``the inadequacy of existing regulatory mechanisms'' indicates
that overall we might find existing regulatory mechanisms adequate to
justify a determination not to list a species. Factor (E) in section
4(a)(1) (any ``manmade factors affecting [the species'] continued
existence'') requires us to consider the pertinent laws, regulations,
programs, and other specific actions of any entity that either
positively or negatively affect the species. Thus, the analysis
outlined in
[[Page 11142]]
section 4 of the Act requires us to consider the conservation efforts
of not only State and foreign governments but also of Federal agencies,
Tribal governments, businesses, organizations, or individuals that
positively affect the species' status. The section 4 analysis for
listing determinations is relevant to our exercise of discretion in
critical habitat designations, although it must be stressed that
analysis in no way limits the Secretary's discretion.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed. The accelerated
schedules of court-ordered designations have left the Service with
almost no ability to provide for adequate public participation or to
ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals due to the risks associated with
noncompliance with judicially imposed deadlines. This in turn fosters a
second round of litigation in which those who fear adverse impacts from
critical habitat designations challenge those designations. The cycle
of litigation appears endless, is very expensive, and in the final
analysis provides relatively little additional protection to listed
species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects, the cost of requesting and responding to public
comment, and in some cases the costs of compliance with the National
Environmental Policy Act (NEPA); all are part of the cost of critical
habitat designation. None of these costs result in any benefit to the
species that is not already afforded by the protections of the Act
enumerated earlier, and they directly reduce the funds available for
direct and tangible conservation actions.
Background
On September 24, 2002, we published a proposed rule to designate
critical habitat, pursuant to the Endangered Species Act of 1973, as
amended (Act), for 4 vernal pool crustaceans and 11 vernal pool plants
(67 FR 59884). The four vernal pool crustaceans involved in this
critical habitat designation are the Conservancy fairy shrimp
(Branchinecta conservatio), longhorn fairy shrimp (Branchinecta
longiantenna), vernal pool fairy shrimp (Branchinecta lynchi), and
vernal pool tadpole shrimp (Lepidurus packardi). The 11 vernal pool
plant species are Butte County meadowfoam (Limnanthes floccosa ssp.
californica), Contra Costa goldfields (Lasthenia conjugens), Hoover's
spurge (Chamaesyce hooveri), fleshy (or succulent) owl's-clover
(Castilleja campestris ssp. succulenta), Colusa grass (Neostapfia
colusana), Greene's tuctoria (Tuctoria greenei), hairy Orcutt grass
(Orcuttia pilosa), Sacramento Orcutt grass (Orcuttia viscida), San
Joaquin Valley Orcutt grass (Orcuttia inaequalis), slender Orcutt grass
(Orcuttia tenuis), and Solano grass (Tuctoria mucronata). We proposed a
total of 128 units of critical habitat for these 15 vernal pool
species, totaling approximately 672,920 hectares (ha) (1,662,762 acres
(ac)) in 36 counties in California and one county in Oregon. In
accordance with our regulations at 50 CFR 424.16(c)(2), we opened a 60-
day comment period on this proposal which closed on November 25, 2002.
All the species live in vernal pools (shallow depressions that hold
water seasonally), swales (shallow drainages that carry water
seasonally), and ephemeral freshwater habitats. None are known to occur
in riverine waters, marine waters, or other permanent bodies of water.
The vernal pool habitats of these species have a discontinuous
distribution west of the Sierra Nevada that extends from southern
Oregon through California into northern Baja California, Mexico. The
species have all adapted to the generally mild climate and seasonal
periods of inundation and drying that help make the vernal pool
ecosystems of California and southern Oregon unique.
Section 4(b)(2) of the Act requires that the Secretary of the
Interior designate or revise critical habitat based upon the best
scientific and commercial data available, after taking into
consideration the economic impact, impact to national security, and any
other relevant impact of specifying any particular area as critical
habitat. The Secretary may exclude any area from critical habitat if
she determines that the benefit of such exclusion outweighs the
benefits of specifying such area as part of the critical habitat,
unless the failure to designate such area as critical habitat will
result in the extinction of the species concerned. Thus, to fulfill our
requirement to consider the potential economic impacts of the proposed
designation of critical habitat for the 15 vernal pool species, we
conducted an analysis of the potential economic impacts on the proposed
designation and published a notice on November 21, 2002 (67 FR 70201),
announcing the availability of our draft economic analysis (DEA). The
notice opened a 30-day public comment period on the draft economic
analysis and extended the comment period on the proposed critical
habitat designation.
During the development of the final designation, we reviewed the
lands proposed as critical habitat based on public comments and any new
information that may have become available and refined the boundaries
of the proposal to remove lands determined not to be essential to the
conservation of the 15 vernal pool species. We then took into
consideration the potential economic impacts of the designation,
impacts on national security, and other relevant factors such as
partnerships, existing management of the lands being considered, and
the effect of designation on the conservation of the species whose
critical habitat was covered by the designation. Next, we determined
whether the benefits of excluding certain lands from the final
designation of critical habitat for the 15 vernal pool species
outweighed the benefit of including them in the designation, and
whether the specific exclusions would result in the extinction of any
of the species involved. The final rule made two types of exclusions,
lands excluded from the final designation based on economic effects of
the designation and lands excluded due to other considerations. Lands
excluded due to other considerations included lands within specific
National Wildlife Refuges and Fish Hatcheries; Department of Defense
lands; Tribal lands; State Wildlife Areas and Ecological Reserves; and
lands covered by habitat conservation plans or other management plans
that provide a benefit for the species. Lands proposed
[[Page 11143]]
as critical habitat in Butte, Madera, Merced, Sacramento, and Solano
Counties were excluded based on potential economic impacts. Thus, on
July 15, 2003, we made a final determination of critical habitat for
the 15 vernal pool species; the final rule was published in the Federal
Register on August 6, 2003 (68 FR 46684). A total of approximately
744,067 ac (301,114 ha) of land were identified as within the
boundaries of the designated critical habitat for the 15 vernal pool
species.
In January 2004, Butte Environmental Council and several other
organizations filed a complaint alleging that we: (1) Violated both the
Act, and the Administrative Procedure Act (APA) by excluding over 1
million acres from the final designation of critical habitat for the 15
vernal pool species; (2) violated mandatory notice-and-comment
requirements under the Act and APA; and (3) engaged in an unlawful
pattern, practice, and policy by failing to properly consider the
economic impacts of designating critical habitat. On October 28, 2004,
the court signed a Memorandum and Order in that case. The Memorandum
and Order remanded the final designation to the Service in part. In
particular, the court ordered us to: (1) Reconsider the exclusions from
the final designation of critical habitat for the 15 vernal pool
species, with the exception of those lands within the 5 California
counties that were excluded based on potential economic impacts, and
publish a new final determination as to those lands within 120 days;
and (2) reconsider the exclusion of the 5 California counties based on
potential economic impacts and publish a new final determination no
later than July 31, 2005. The court did not alter the August 6, 2003,
final designation.
In order to more completely comply with the court order, on
December 28, 2004, we reopened the comment period for 30 days (69 FR
77700) on the designation, to solicit any new information concerning
the benefits of excluding and including the lands the final rule
excluded on the basis of noneconomic considerations. Comments received
during this 30-day comment period are addressed herein.
This notice addresses the first requirement of the remand--the
reconsideration of the lands excluded for noneconomic considerations
from the final designation of critical habitat for the 15 vernal pool
species. Those lands within the 5 California counties that were
excluded based on potential economic impacts will be addressed through
a future Federal Register document, upon completion of the economic
analysis currently underway.
Table 1 lists each specific area that was excluded from the
proposed designation of critical habitat for the 15 vernal pool
species, based on policy by category and size. The total area shown is
the cumulative critical habitat area for all 15 species. Many of the
critical habitat boundaries for each species overlap and as a result
the actual total critical habitat area would be less.
Table 1.--Approximate Areas of Critical Habitat Exclusions for the
Vernal Pool Crustaceans and Plants in California and Oregon
------------------------------------------------------------------------
Exclusion area Acres Hectares
------------------------------------------------------------------------
National Wildlife Refuges (NWR) and Fish Hatchery Exclusions
------------------------------------------------------------------------
Sacramento NWR Complex............................ 19,363 7,836
San Francisco Bay NWR............................. 617 250
San Luis NWR Complex.............................. 18,014 7,290
Kern NWR Complex.................................. 4,894 1,980
Coleman Nat. Fish Hatchery........................ 13 5
------------
Total......................................... 42,914 17,367
---------------------------------------------------
Department of Defense Exclusions
------------------------------------------------------------------------
Beale Air Force Base *............................ 10,033 4,060
Travis Air Force Base *........................... 9,651 3,906
Fort Hunter Liggett............................... 16,583 6,711
Camp Roberts...................................... 33,937 13,734
------------
Total......................................... 70,204 28,410
---------------------------------------------------
Tribal Land Exclusions
------------------------------------------------------------------------
Mechoopda Tribe................................... 644 261
------------
Total......................................... 644 261
---------------------------------------------------
State Wildlife Areas (WA) and Ecological Reserve (ER) Exclusions
------------------------------------------------------------------------
Allensworth ER.................................... 1,141 462
Battle Creek WA................................... 637 258
Big Sandy WA...................................... 478 194
Boggs Lake ER..................................... 50 20
Butte Creek Canyon ER............................. 0.4 0.16
Calhoun Cut ER.................................... 3,021 1,223
Carrizo Plains ER................................. 455 184
Dales Lake ER..................................... 754 305
Fagen Marsh ER.................................... 420 170
Grizzly Island WA................................. 10 4
Hill Slough WA.................................... 1,559 631
North Grasslands WA............................... 5 2
Oroville WA....................................... 39 16
Phoenix Field ER.................................. 7 3
[[Page 11144]]
San Joaquin River ER.............................. 278 113
Stone Corral ER................................... 3,074 1,244
Thomes Creek ER................................... 447 181
------------
Total......................................... 12,373 5,007
---------------------------------------------------
Habitat Conservation Plans (HCP) and Cooperatively Managed Land
Exclusions
------------------------------------------------------------------------
Skunk Hollow HCP.................................. 239 97
Western Riverside Multiple Species HCP............ 5,730 2,319
Santa Rosa Plateau Ecological Reserve............. 4,246 1,718
San Joaquin County Multiple Species HCP........... 10 4
------------
Total......................................... 10,224 4,138
------------
Grand Total............................... 136,358 55,182
------------------------------------------------------------------------
* Beale and Travis AFB have approved INRMPs and are not designated
critical habitat based on 4(a)(3)(B) of the Act.
Summary of Comments and Recommendations
In the September 24, 2002, proposed critical habitat designation
(67 FR 59884) and subsequent Federal Register notices concerning the 15
vernal pool species (67 FR 70201 and 68 FR 12336), we requested all
interested parties to submit comments on the specifics of the proposal,
including information related to the critical habitat designation, unit
boundaries, species occurrence information and distribution, land use
designations that may affect critical habitat, potential economic
effects of the proposed designation, benefits associated with critical
habitat designation, potential exclusions and the associated rationale
for the exclusions, and methods used to designate critical habitat.
In the December 28, 2004, reopening of public comment period for
noneconomic exclusions related to critical habitat designation (69 FR
77700), we requested all interested parties to submit comments on the
specifics of the proposal, including information related to amount and
distribution of habitat, essential habitat, rationale for including or
excluding habitat, benefits associated with including or excluding
critical habitat designation, current or planned activities on proposed
critical habitat, and public participation in designating critical
habitat.
We contacted all appropriate State and Federal agencies, county
governments, elected officials, and other interested parties and
invited them to comment. This was accomplished through telephone calls,
letters, and news releases faxed and/or mailed to affected elected
officials, media outlets, local jurisdictions, interest groups and
other interested individuals. In addition, we invited public comment
through the publication of legal notices in numerous newspaper and news
media throughout California and Oregon. In 2002, we provided
notification of the DEA and proposed rule to all interested parties. At
the request of Congressman Cardoza's Office, the Merced County Board of
Supervisors, and the Stanislaus County Board of Supervisors, we held
two public meetings to explain the December 28, 2004, Federal Register
notice regarding the noneconomic exclusions to the public and requested
that they provide comments. We provided contacts where they could
direct questions regarding the proposed designation. We also posted the
associated material on our Sacramento Fish and Wildlife Office internet
site following the publication on December 28, 2004. Additionally, we
made available to the public upon request individual maps of the
noneconomic exclusions.
We received a total of 955 comment letters during the first 3
comment periods, and 17 on the most recent comment period, which ended
on January 27, 2005. Comments were received from Federal, Tribal, State
and local agencies, and private organizations and individuals. We
reviewed all comments received, for this and previous rules, for
substantive issues and new information on the proposed exclusions and
other information regarding the vernal pool plants and vernal pool
crustaceans. Similar comments were grouped into several general issue
categories relating specifically to the proposed critical habitat
determination, the proposed exclusions, and the Draft Economic
Analysis, and are identified below.
Peer Review
For a discussion of the peer review of vernal pool critical habitat
designation, please refer to our August 6, 2003, final designation (68
FR 46684).
State Agencies
For a discussion of the State Agency comments on the vernal pool
critical habitat designation, please refer to our August 6, 2003, final
designation (68 FR 46684).
Other Public Comments and Responses
We address other substantive comments and accompanying information
in the following summary. Relatively minor editing changes and
reference updates suggested by commenters have been incorporated into
this final rule or the final economic analysis, as appropriate.
Issue 1--Habitat and Species-Specific Information
Comment 1: One commenter suggested that created vernal pool habitat
should not be used as a method of mitigation for impacts to existing
vernal pool habitat.
Our Response: Preservation of naturally occurring vernal pool
complexes remains a key component to conservation for vernal pool
species. In designating critical habitat areas we evaluated the
importance of including created vernal pool habitat within the
designated areas. We have determined that created vernal pool areas do
provide essential habitat for many of the vernal pool species and are a
key component toward their conservation.
Comment 2: The military, notably the California Army National
Guard,
[[Page 11145]]
specifically Camp Roberts and Fort Hunter Liggett, and the U.S. Air
Force, specifically Beale Air Force Base and Travis Air Force Base,
requested that critical habitat not be designated on the four bases. In
addition, the Solano County Board of Supervisors requested that Travis
Air Force Base, in particular, not be included in critical habitat
designation. Another commenter had concerns that vernal pool habitat
for federally listed vernal pool species within Travis Air Force Base
was not adequately protected from military activities that occur on the
base. This commenter requested that vernal pool habitat within Travis
Air Force Base be designated as critical habitat.
Our Response: The two Air Force Bases have approved INRMPs and were
excluded through section 4(a)(3)(B) of the Act. The two Army National
Guard Reserves Bases were excluded through section 4(b)(2) of the Act,
since the benefits of excluding outweigh the benefits of including
those vernal pool areas within the designation. For a summary of our
comments regarding the exclusion of lands occupied by these bases,
please refer to our August 6, 2003, final designation (68 FR 46684) and
the Exclusions section below. No significant changes to vernal pool
habitat and the management of this habitat have occurred since these
military bases were evaluated for exclusion from critical habitat
designation in the August 6, 2003, final rule. All of these bases have
draft or final Integrated Natural Resource Management Plans (INRMPs)
and the Service has completed or is currently working on consultations
on these through the section 7 consultation process. We recognize that
the military is implementing measures to conserve existing locations of
federally listed vernal pool species and the habitat they occupy. In
addition, section 4(b)(2) of the Act requires that the Secretary of the
Interior designate or revise critical habitat based upon the best
scientific and commercial data available, after taking into
consideration the economic impact, impact to national security, and any
other relevant impact of specifying any particular area as critical
habitat. The Secretary may exclude any area from critical habitat if
she determines that the benefit of such exclusion outweighs the
benefits of specifying such area as part of the critical habitat,
unless the failure to designate such area as critical habitat will
result in the extinction of the species concerned.
Comment 3: Travis Air Force Base stated that in the August 6, 2003,
final designation (68 FR 46684) we indicated that the exclusion acreage
at Travis AFB is 9,651 acres. Travis AFB stated that the correct
acreage is 5,128 acres of fee owned land and 1,255 acres in lesser
interests, such as easements and rights of way.
Response: The acreage figures identified in the proposed rule
issued on December 27, 2004 (69 FR 77700), reflected the accumulated
critical habitat total for each of the species within the Travis Air
Force boundary. As a result the total acreage identified was higher.
Comment 4: One commenter stated that critical habitat has to be
occupied by the species at the time the species is listed, needs to
contain the features essential to the conservation of the species, and
may require special management considerations or protections. This
commenter stated that that the 10 acres under discussion in the San
Joaquin County Multiple Species Habitat Conservation Plan should
continue to be excluded because this area is already afforded special
management considerations or protections.
Our Response: We agree that this area is already under special
management consideration and afforded protection by virtue of the San
Joaquin County Multi-Species Habitat Conservation and Open Space Plan
and have excluded the area covered under this HCP from this
designation. For further discussion on the legal definition of critical
habitat, refer to our August 6, 2003, final rule (68 FR 46684).
Comment 5: During the comment period for the proposed rule (67 FR
59884) and the December 28, 2004, proposed rule (69 FR 77700), the
Mechoopda Tribe requested the exclusion of their land in Butte County
from critical habitat designation. The Mechoopda Tribe's Environmental
Department stated that they have implemented measures through a
comprehensive management plan to further the protection and
conservation of vernal pool ecosystems on their land.
Our Response: As a result of meeting with the Tribe and discussing
the details of their management plan, we have determined that it is
appropriate to exclude the Mechoopda lands from the current
designation. We recognize that the Tribe is implementing measures to
conserve existing locations of federally listed vernal pool species and
the habitat they occupy. In addition, we note that under the tribe's
existing management, vernal pool complexes have remained intact and
able to support the species that rely on them. For a more detailed
discussion summary of our comments regarding the exclusion of lands
occupied by the Tribe and a more detailed description of the Tribe's
voluntary measures to benefit the conservation of listed species,
please refer to the discussion later in this rule.
Comment 6: The Bureau of Land Management (BLM) requested that
critical habitat not be designated on the Carrizo Plains National
Monument due to current management and protection of vernal pool
resources within BLM's jurisdiction.
Our Response: The BLM's management plan implements measures to
conserve existing locations of federally listed vernal pool species and
their habitat. The Service is currently consulting on this plan through
the section 7 consultation process. If we determine that the lands of
the Carrizo Plains National Monument merits exclusion, we will solicit
additional comments on such an exclusion when we reopen the comment
period for the draft economic analysis in the spring of 2005. Those
comments and any comments already received will be fully considered
before sending a final rule to the Federal Register.
Comment 7: The Placer County Board of Supervisors stated that
Critical Habitat Unit 12 for the vernal pool fairy shrimp should be
excluded from designation because the Placer Legacy Habitat
Conservation Plan, which is currently under development, will provide
adequate protection of federally listed vernal pool species in this
region. The Board of Supervisors stated that because the Placer Legacy
HCP is similar to other HCPs, such as the Western Riverside Multiple
Species HCP, and would provide for the conservation of vernal pools and
listed vernal pool crustaceans, the Placer Legacy HCP should therefore
similarly be excluded from critical habitat designation.
Our Response: The scope of this notice was to seek comments on
those areas previously excluded for noneconomic reasons. However, we
will consider all comments we receive and if additional proposed
exclusions result from those comments, we will solicit additional
comments on exclusions when we re-open the comment period for the draft
economic analysis in the spring of 2005. Those comments and any
comments already received will be fully considered before sending a
final rule to the Federal Register.
Comment 8: One commenter stated that the existing designation of
critical habitat for vernal pool species should be expanded.
Specifically, areas adjacent to the Santa Rosa Plateau Ecological
Reserve should be considered for critical habitat designation because
[[Page 11146]]
these areas, as well as areas within the ER, are threatened by runoff
from development on adjacent unprotected lands.
Our Response: The area proposed as critical habitat within the
Santa Rosa Plateau Ecological Reserve has been excluded, as part of the
Western Riverside MSHCP, under 4(b)(2) of the Act. In our original
proposal we proposed to designate only those areas essential to the
conservation of the vernal pool fairy shrimp and the vernal pool
complexes in which it occurs. In our mapping of the area we believe we
captured those areas, which were essential to maintain water quality
and hydrology of the vernal pools and vernal pool complexes within the
proposed unit. We determined that areas outside the proposed designated
areas were not essential for the conservation of the species or its
habitat. In addition, the scope of this notice was to seek comments on
those areas previously excluded for noneconomic reasons. We will
solicit additional comments on exclusions when we reopen the comment
period for the draft economic analysis in the spring of 2005. Those
comments and any comments already received will be fully considered
before sending a final rule to the Federal Register.
Comment 9: One commenter requested that lands covered in the Skunk
Hollow vernal pool basin should continue to be excluded, and if
critical habitat designation is necessary, it should only include the
136-acre Barry Jones Wetland Mitigation Bank.
Our Response: This area is already under special management
considerations and afforded protection as part of the Western Riverside
County MSHCP. Therefore, we have determined that it would be
appropriate to exclude the area covered under this HCP from this
designation. For more detail on our reasons for exclusions please refer
to the specific discussion in this rule.
Comment 10: Two commenters stated that the Western Riverside
Multiple Species HCP is not designed to adequately review environmental
effects on unprotected vernal pool habitats in this area.
Our Response: Critical habitat is only one of many conservation
tools for federally listed species. HCPs are one of the most important
tools for conserving habitat and reconciling economic land use with the
conservation of listed species on non-Federal lands. Designation of
critical habitat does not afford protection to species or habitat
unless there is a federal nexus, lands protected under HCPs are
protected regardless of the designation of critical habitat. Section
4(b)(2) allows us to exclude from critical habitat designation areas
where the benefits of exclusion outweigh the benefits of designation,
provided the exclusion will not result in the extinction of the
species. We believe that in most instances, the benefits of excluding
HCPs from critical habitat designations will far outweigh the benefits
of including them. For this designation, we find that the benefits of
exclusion outweigh the benefits of inclusion for the Western Riverside
MSHCP issued for the covered federally listed species. In particular,
Section 10(a)(1)(B) of the Act states that HCPs must meet issuance
criteria, including minimizing and mitigating any take of the listed
species covered by the permit to the maximum extent practicable, and
that the taking must not appreciably reduce the likelihood of the
survival and recovery of the species in the wild.
Comment 11: Congressman Dennis Cardoza and one other commenter
concurred with our previous noneconomic exclusions of lands from
designation of critical habitat. In addition, they further stated that
all lands with conservation easements that are managed for the
protection of listed vernal pool species should also be excluded from
vernal pool critical habitat designation.
Our Response: The scope of this notice was to seek comments on
those areas previously excluded for non-economic reasons. We will
consider comments requesting additional exclusions and will propose any
additional exclusions with opportunity for comments when we reopen the
comment period for the draft economic analysis in the spring of 2005.
Those comments, and any comments already received, will be fully
considered before sending a final rule to the Federal Register.
Comment 12: Commenters associated with California Native Plant
Society (CNPS) and Butte Environmental Council stated that lands
excluded for policy and noneconomic reasons are essential to the
survival and recovery of endangered vernal pool species, and therefore
should be designated as vernal pool critical habitat. CNPS emphasized
that vernal pool habitat on Department of Defense lands should be
included in the designation of vernal pool critical habitat.
Our Response: There is minimal benefit from designating critical
habitat for the vernal pool species within areas that are currently
excluded because these lands, such as State-owned Wildlife Areas,
Ecological Reserves, National Fish and Wildlife Refuges and Hatcheries,
are already managed for the conservation of wildlife. HCPs that have
been excluded from the rule for the same reason, they are already
managed for conservation under Section 10(a)(1)(B) of the Act, which
states that HCPs must meet issuance criteria, including minimizing and
mitigating any take of the listed species covered by the permit to the
maximum extent practicable, and that the taking must not appreciably
reduce the likelihood of the survival and recovery of the species in
the wild. Furthermore, an HCP application must itself be consulted
upon. While this consultation will not look specifically at the issue
of adverse modification to critical habitat, unless critical habitat
has already been designated in the proposed plan area, it will
determine if the HCP permit would jeopardize the species in the plan
area. In addition, protections afforded by HCPs, management plans, and
other landscape management programs go beyond any protections provided
by a critical habitat designation. A critical habitat designation only
protects areas that are subject to a federal action. HCPs and other
management plans are not dependent on federal action to provide species
protection.
In response to the CNPS concerns regarding exclusions of Department
of Defense lands, section 4(b)(2) of the Act requires that the
Secretary of the Interior shall designate or revise critical habitat
based upon the best scientific and commercial data available, after
taking into consideration the economic impact, impact to national
security, and any other relevant impact of specifying any particular
area as critical habitat. The Secretary may exclude any area from
critical habitat if she determines that the benefit of such exclusion
outweighs the benefits of specifying such area as part of the critical
habitat, unless the failure to designate such area as critical habitat
will result in the extinction of the species concerned. The two AFBs
were not eligible for designation through operation of section
4(a)(3)(B) of the Act as they had approved INRMPs, which provided for
the conservation of the species. The two ANGR bases were excluded
through section 4(b)(2) of the Act, since the benefits of excluding
outweigh the benefits of including those vernal pool areas within the
designation. For a detailed discussion of our noneconomic exclusion
analysis used in our final designation of critical habitat for the 15
vernal pool species, please refer to our August 6, 2003, final
designation (68 FR 46684) and in the Exclusions section below.
Comment 13: One commenter stated that prior designations and
economic analyses do not properly account for the
[[Page 11147]]
recovery standard and the mitigation requirements expressed by the
court in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service,
378 F.3d 1059, 1070 (9th Cir. 2004). This commenter stated that certain
areas within Critical Habitat Unit 12 in western Placer County should
be excluded, specifically the Placer Vineyards site and the Rioso
property, because the Primary Constituent Elements (PCEs) are absent.
They also stated, along with an additional commenter, that other areas
outside this critical habitat unit should actually be included because
PCEs are present.
Our Response: With regard to including additional areas for
critical habitat designation, the scope of this notice was to reexamine
our previous noneconomic exclusions and to more fully explain our
rationale for any noneconomic exclusions we make subsequent to the re-
examination. We will consider all comments received, and if we propose
additional exclusions for non-economic reasons or any other reason, we
will propose those exclusions and solicit additional comments when we
reopen the comment period for the draft economic analysis in the spring
of 2005. Those comments and any comments already received will be fully
considered before sending a final rule to the Federal Register. We will
be considering the impact of the recent 9th Circuit decision (Gifford
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059,
1070 (9th Cir. 2004)) in the economic analysis conducted for this final
rule.
Comment 14: One commenter requested that the Service incorporate
results from Dr. Bob Holland's recent work regarding biogeographic
distribution of vernal pool species in relation to their edaphic (soil
related) requirements. The commenter also requested that the Service
link critical habitat designation to recovery plans as long as critical
habitat deadlines are enforced.
Our Response: It is the goal of the Service to utilize the most
recent scientific information available. In the development of this
designation, we contacted numerous species experts and other members of
the scientific community, including Dr. Holland. In developing critical
habitat designations, we analyze all pertinent scientific and
commercial information available to make our final determinations. This
information would include any scientific information that was used in
the development of recovery plans for the specific species. In the case
of the 15 vernal pool species, we used, among other sources of
information, scientific information gathered during the recovery
planning process. On November 18, 2004, the draft Vernal Pool Recovery
Plan for Vernal Pool Ecosystems in California and Southern Oregon was
published in the Federal Register (69 FR 67601). We used the scientific
information compiled in the draft recovery plan in this final
determination; however, we will re-examine the designation in light of
any significant information should we become aware of such information
and make a final determination by July 31, 2005.
Issue 2--Costs and Regulatory Burden
Comment 15: The military, notably the California Army National
Guard, specifically Camp Roberts and Fort Hunter Liggett, and the U.S.
Air Force, specifically Beale Air Force Base, requested that critical
habitat be excluded on the four bases. Designation of critical habitat
would increase the costs and regulatory requirements and hamper the
military from carrying out its mission objectives for the bases.
Designation of critical habitat would adversely affect national
security by diminishing the military's ability to support realistic and
effective military operations.
Our Response: We have not designated critical habitat on two AFBs
based on section 4(a)(3)(B) of the Act and excluded the two Army Bases
from final designation of critical habitat pursuant to section 4(b)(2)
of the Act. Please refer to the Relationship of Critical Habitat to
Military Lands section of this final rule for a detailed discussion of
our rationale for not including or excluding these military bases
pursuant to section 4(a)(3)(B) or 4(b)(2) of the Act.
Comment 16: The Placer County Board of Supervisors and one other
commenter stated that critical habitat designation within the County
places a disproportionate amount of the regulatory burden on western
Placer County. Western Placer County contains the infrastructure to
support the majority of the projected growth within the entire County
and, therefore, growth in this portion of the County would be hindered
by the regulatory burden of the designation of critical habitat.
Our Response: The scope of this notice and resulting analysis was
to seek comment on the noneconomic exclusions previously excluded in
our final determination of critical habitat (68 FR 46684). We will be
conducting a new economic analysis and will finalize economic
exclusions in the final rule in July 2005. This comment will also be
addressed at that time.
Comment 17: One commenter suggested that the National Wildlife
Refuges, State Wildlife Areas, and Ecological Reserves all provide
economic benefits from wildlife viewing, photography, hunting, and
fishing. The Commenter requested that the Service quantify these
benefits using visitation records as part of the Service's re-
evaluation of special lands exclusions.
Our Response: We agree that National Wildlife Refuges, State
Wildlife Areas and Ecological Reserves provide benefits in the form of
recreational opportunities. However, these benefits will remain
regardless of whether these areas are designated as critical habitat.
These benefits are not due to a critical habitat designation, rather,
they result from the legal authorities establishing these areas, such
as the National Wildlife Refuge System Administration Act, the Refuge
Recreation Act, and other authorities, all of which are independent of
critical habitat designations.
Issue 3--Procedural Concerns
Comment 18: One commenter stated that the 30-day comment period for
the proposed rule violated 50 CFR 424.16(c)(2) and requested that we
extend the comment period on the re-evaluation of noneconomic
exclusions for a total or 60 days to allow for additional outreach to
interested parties.
Our Response: An additional public comment period of at least 30
days will open once the draft economic analysis has been completed
prior to the finalization of the rule in July.
Comment 19: One commenter stated that the maps of the lands being
considered for removal from the exempt status were not readily
available and accessible to the public in a timely manner.
Our Response: Maps and Geographic Information System (GIS) maps of
the final designation published in August of 2003 (68 FR 46684) were
available through our Sacramento and Regional Web sites as identified
in the proposed rule (69 FR 77700). Specific maps identifying the
exclusion areas and any other information requested by the public were
made available upon request on an individual basis. Because this
rulemaking is subject to a court-imposed deadline, the accelerated
schedules of this designation as well as budget and staffing
constraints had left us with a limited amount of time and resources to
post maps for the December 28, 2004, Federal Register document
specifically identifying each exclusion area.
[[Page 11148]]
Comment 20: One commenter stated that the Interior Secretary should
not use broad discretion to override critical habitat designation
decisions that are made by Service biologists, as exemplified by the
proposed special lands exemptions, because it opens the door for
political manipulation. The commenter noted that economic factors are
important and relevant, but should not be allowed to impede recovery,
particularly when interim analysis fails to quantify benefits. In
addition, this commenter stated that biology, rather than politics,
should be the driving force behind critical habitat designation.
Our Response: Section 4(b)(2) of the Act requires us to designate
critical habitat on the basis of the best scientific and commercial
information available, and to consider the economic and other relevant
impacts of designating a particular area as critical habitat. We may
exclude areas from critical habitat upon a determination that the
benefits of exclusions outweigh the benefits of specifying such areas
as critical habitat. The Congressional record is clear that Congress
contemplated occasions where the Secretary could exclude the entire
designation. In addition, the discretion that Congress anticipated
would be exercised in Section 4(b)(2) of the Act is extremely broad.
``The consideration and weight given to any particular impact is
completely within the secretary's discretion'' (Congressional Research
Service 1982). We cannot exclude areas from critical habitat when the
exclusion will result in the extinction of the species concerned. We
will be analyzing the economic costs associated with the proposed
designation and re-evaluate the economic exclusions based on the new
analysis when it becomes available. The public will have an opportunity
to comment on the analysis at that time.
Summary of Changes From the Previous Final Rule
In development of the original final designation of critical
habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants
in California and Southern Oregon, significant revisions to the
proposed critical habitat designation were made based on review of
public comments received on the proposed designation, the Draft
Economic Analysis (DEA), and further evaluation of existing protection
on lands proposed as critical habitat. These revisions relied on legal
authorities and requirements provided in the Act. This re-evaluation of
those exclusions relies on the same legal authorities.
In analyzing the proposed exclusions, we contacted representatives
from State Wildlife Areas and Ecological Reserves, the four military
bases, and the Mechoopda Tribe to verify that no significant changes to
vernal pool habitat or their management have occurred since the August
6, 2003, final rule. After reviewing the public comments received and
the previously proposed and final designations of critical habitat for
the 4 vernal pool crustaceans and 11 vernal pool plants in California
and southern Oregon, we find that the noneconomic exclusions were based
on the best available science and that the benefits of excluding these
areas outweighs the benefits of inclusion. As a result we have
determined that no significant boundary changes to the noneconomic
exclusions should occur to the August 6, 2003, final rule (68 FR
46684). Where we have received new information was included in our
reanalysis. In addition, we have expanded our discussion of the
analysis conducted on each of the exclusions.
Critical Habitat
This rule focuses on the reanalysis and evaluation of the non-
economic exclusions from critical habitat. For that reason, much of the
August 6, 2003, final rule describing the basis for designation is
unchanged. Accordingly, for all discussions other than those related to
non-economic exclusions we refer you to the August 6, 2003, final
designation (68 FR 46684).
On the basis of the final economic analysis and other relevant
impacts, as outlined under section 4(b)(2) of the Act, and the economic
effects associated with this rule, certain exclusions were made to our
final designation. The Service will be reanalyzing the economic effects
of the critical habitat designation over the entire designation. Our
original rule excluded five Counties: Butte, Madera, Merced,
Sacramento, and Solano Counties. That exclusion was based on a
comparison of the economic effects of the designation among the
counties, and excluded those with relatively higher effects. At the
time, the economic effects were aggregated on a countywide basis, which
limited our ability to make exclusions on anything less than a county-
level. Pursuant to the October 28, 2004, court order, the Service is
reanalyzing the economic effects of the entire designation and will
make its final critical habitat designation and any economic exclusions
based on this more detailed analysis. A Federal Register notice
announcing the availability of the draft economic analysis will be
published and the public will have the opportunity to comment on the
document.
Section 4(a)(3)(B) of the Act
Section 318 of fiscal year 2004 the National Defense Authorization
Act (Public Law No. 108-136) amended the Endangered Species Act to
address the relationship of Integrated Natural Resources Management
Plans (INRMPs) to critical habitat by adding a new section 4(a)(3)(B).
This provision prohibits the Service from designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are subject
to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary of the Interior determines in writing that such
plan provides a benefit to the species for which critical habitat is
proposed for designation.
This provision was added subsequent to our final designation of
critical habitat in 2003. However, its provisions apply to this
designation. Accordingly the Service does not have the authority to
designate Beale Air Force Base or Travis Air Force Base as those
facilities have existing INRMPs that provide a benefit to the species.
Noneconomic Exclusions Under Section 4(b)(2) of the Act
As noted earlier, section 4(b)(2) of the Act states that critical
habitat shall be designated, and revised, on the basis of the best
available scientific data after taking into consideration the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. An area may be
excluded from critical habitat if it is determined that the benefits of
exclusion outweigh the benefits of specifying a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species. The following
paragraphs will provide detail as to the basis for the non-economic
exclusions that we have analyzed and found appropriate.
A total of approximately 1,184,513 ac (479,356 ha) of land falls
within the boundaries of designated critical habitat of those lands we
propose to exclude:
Lands within the boundaries of Habitat Conservation Plans,
National Wildlife Refuge lands and National fish hatchery
lands (33,097 ac (13,394 ha)),
State lands within ecological reserves and wildlife
management areas (20,933 ac (8,471 ha)),
Department of Defense lands within Fort Hunter Liggett
Army installation (16,583 ac (6,711 ha)),
Tribal lands managed by the Mechoopda Tribe (644 ac (261
ha)),
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The Santa Rosa Plateau Ecological Reserve (10,200 ac
(4,128 ha)) from the final designation.
Habitat Conservation Plans
(1) Benefits of Inclusion
The benefits of including HCPs or NCCP/HCPs in critical habitat are
small to nonexistent. The principal benefit of any designated critical
habitat is that federally funded or authorized activities in such
habitat that may affect it require consultation under section 7 of the
Act. Such consultation would ensure that adequate protection is
provided to avoid adverse modification of critical habitat. An HCP
application must be itself consulted upon. While this consultation will
not look specifically at the issue of adverse modification to critical
habitat, unless critical habitat has already been designated within the
proposed plan area, it will determine if the HCP jeopardizes the
species in the plan area. Therefore, any federal activity that is
consistent with the terms of the HCP and IA would be very unlikely to
have an effect on the primary constituent elements of habitat that
would otherwise be designated as critical habitat would not serve the
intended conservation role for the species.
HCPs/NCCPs are already designed to ensure the long-term survival of
covered species within the entire plan area rather than just those
areas with a federal nexus. Where we have approved HCPs or NCCP/HCPs,
lands will normally be protected in reserves and other conservation
lands by the terms of the HCPs or NCCP/HCPs and their Implementing
Agreements (IAs). These HCPs or NCCP/HCPs and IAs include management
measures and protections for conservation lands designed to protect,
restore, and enhance their value as habitat for covered species and
provide the same benefits for any species that relies on the same
ecosystems.
Another possible benefit to including these lands is that the
designation of critical habitat can serve to educate landowners and the
public regarding the potential conservation value of an area. This may
focus and contribute to conservation efforts by other parties by
clearly delineating areas of high conservation value for certain
species. However in the case of HCCP/NCCPs the public notice and
comment and final publication in the Federal Register of the final
provisions provide virtually the same notice as a critical habitat
designation.
Because of the above, we conclude that any benefits that accrue to
habitat in an HCP from a critical habitat designation are small to non-
existant.
(2) Benefits of Exclusion
The benefits of excluding HCPs from critical habitat are
significant. In an approved HCP, lands that might ordinarily be
identified as critical habitat for covered species will normally be
protected in reserves and other conservation lands by the terms of the
HCP and its associated implementing agreement (IA). Since these large
regional HCPs address land use within the plan boundaries, habitat
issues within the plan boundaries have been addressed in the HCP and
the consultation on its associated permit. In the consultation we are
required to if the action jeopardizes the listed species. In the case
of critical habitat we analyze whether the function of the habitat for
recovery of the species will be reduced or eliminated by the proposed
action.
Designating these areas will likely have an adverse impact on the
partnerships that we have developed with the local jurisdiction(s) and
project proponents in the development of the HCP and NCCP/HCP, and in
the management of the other excluded areas to benefit the species.
Excluding these areas will promote future partnerships, and avoid
duplicative regulatory burden on cooperating parties. We have received
substantial comments from various parties in comment periods on this
and many other critical habitat rules that those regulatory burdens can
be significant to private and public parties. In part, it is to avoid
the regulatory costs associated with project-by-project consultations
that provides an incentive for private landowners to enter into HCPs.
The Service achieves far more conservation when entire regions can be
subject to the HCP permit issuance standards instead of just projects
with a federal nexus. Failure to exclude HCPs from critical habitat
removes any incentive for landowners to voluntarily participate in HCPs
and thus removes any protection for lands with no federal nexus.
San Joaquin County Multiple Species Habitat Conserva
