Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover, 48094-48098 [05-16149]
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Federal Register / Vol. 70, No. 157 / Tuesday, August 16, 2005 / Proposed Rules
information that will be used in making
a determination whether Cicurina cueva
should be listed as endangered. We
reopened the comment period from May
23 to June 22, 2005 (70 FR 29471), as
additional information from a genetic
analysis and additional survey work for
Cicurina species in southern Travis
County became available near the end of
the original comment period. We were
also expecting a biological evaluation
from the Texas Department of
Transportation (TxDOT) on (SH) State
Highway 45 South that will evaluate
biological effects of proposed highway
construction and how they will avoid or
minimize any negative effects to Flint
Ridge Cave. In addition, we were
expecting a draft Candidate
Conservation Agreement with
Assurances (CCAA) and enhanced
management plan for Cave X from the
Regents School of Austin. These
documents are in progress, and it is our
understanding that they were almost
complete by the June 22, 2005, deadline.
With this document, we are reopening
the public comment period on the 90day finding and initiation of status
review to complete and make available
the results of our peer review on the
report titled, ‘‘Genetic and
morphological analysis of species limits
in Cicurina spiders (Araneae,
Dictynidae) from southern Travis and
northern Hays counties, with emphasis
on Cicurina cueva Gertsch and
relatives’’ and to receive additional
information that was in progress and
almost complete at the time the last
comment period closed including, but
not limited to, TxDOT’s biological
evaluation of SH 45, the Regents
School’s draft CCAA and enhanced
management plan, information from the
City of Austin, and possibly information
from a number of other parties who
requested an extension of the comment
period. This document and the results
of the peer review are available to the
public by contacting the Austin
Ecological Services Office (see
ADDRESSES section above). We believe
these documents may contain
significant information that may affect
our determination of the species’ status
and allowing the comment period to
expire before they are available could
result in hurried and incomplete
comments. We deem these
considerations as sufficient cause to
reopen the comment period. This
reopening of the comment period will
not result in an extension of the courtordered date by which the Service must
make its 12-month finding.
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Public Comments Solicited
Our practice is to make comments,
including names and home addresses of
respondents, available for public review
during regular business hours.
Individual respondents may request that
we withhold their home address, which
we will honor to the extent allowable by
law. If you wish us to withhold your
name or address, you must state this
request prominently at the beginning of
your comments. However, we will not
consider anonymous comments. To the
extent consistent with applicable law,
we will make all submissions from
organizations or businesses, and from
individuals identifying themselves as
representatives or officials of
organizations or businesses, available
for public inspection in their entirety.
Authority: The authority for this action is
the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: August 2, 2005.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 05–16150 Filed 8–15–05; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AT89
Endangered and Threatened Wildlife
and Plants; Proposed Designation of
Critical Habitat for the Pacific Coast
Population of the Western Snowy
Plover
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; notice of
availability of draft economic analysis.
AGENCY:
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
availability of the draft economic
analysis for the proposal to designate
critical habitat for the Pacific coast
distinct population segment of the
western snowy plover (Charadrius
alexandrinus nivosus) under the
Endangered Species Act of 1973 (Act),
as amended. The draft economic
analysis finds that, over the next 20
years, costs associated with western
snowy plover conservation activities are
forecast to range from $272.8 to $645.3
million. In constant dollars, the draft
economic analysis estimates there will
be an economic impact of $514.9 to
$1,222.7 million over the next 20 years.
The greatest economic impact
(approximately 90 to 95 percent of total
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future impact using 3 and 7 percent
discount rates) is expected to occur to
recreation; other activities impacted
include plover management, real estate
development, military base operations,
and gravel extraction. Comments
previously submitted on the December
17, 2004, proposed rule (69 FR 75608)
during the initial comment period need
not be resubmitted as they have been
incorporated into the public record and
will be fully considered in preparation
of the final rule.
DATES: Comments must be submitted
directly to the Service (see ADDRESSES
section) on or before 30 days after
publication of this notice.
ADDRESSES: If you wish to comment on
the proposed rule or draft economic
analysis, you may submit your
comments and materials by any one of
several methods:
1. You may submit written comments
and information by mail or handdelivery to the Arcata Fish and Wildlife
Office, U.S. Fish and Wildlife Service,
1655 Heindon Road, Arcata, California
95521.
2. Written comments may be sent by
facsimile to 707–822–8411.
3. You may send your comments by
electronic mail (e-mail) to
fw8snowyplover@fws.gov. For directions
on how to submit electronic filing of
comments, see the ‘‘Public Comments
Solicited’’ section below.
You may obtain copies of the draft
economic analysis by mail or by visiting
our Web site at https://www.fws.gov/
pacific/sacramento/default.htm. You
may review comments and materials
received, and review supporting
documentation used in preparation of
this proposed rule, by appointment,
during normal business hours, at the
above address.
FOR FURTHER INFORMATION CONTACT:
Michael Long, Field Supervisor, Arcata
Fish and Wildlife Office (telephone
707–822–7201; facsimile 707–822–
8411).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action
resulting from this proposal will be as
accurate and as effective as possible.
Therefore, we solicit comments or
suggestions from the public, other
concerned governmental agencies, the
scientific community, industry, or any
other interested party concerning the
proposed rule and the draft economic
analysis. On the basis of public
comment, during the development of
our final determination, we may find
that areas proposed are not essential, are
appropriate for exclusion under section
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4(b)(2) of the Act, or are not appropriate
for exclusion. We particularly seek
comments concerning:
(1) The reasons why any habitat
should or should not be determined to
be critical habitat as provided by section
4 of the Act, including whether the
benefits of designation will outweigh
benefits of exclusion;
(2) Specific information on the
distribution of the western snowy
plover, the amount and distribution of
the species’ habitat, and which habitat
is essential to the conservation of the
species, and why;
(3) Land-use designations and current
or planned activities in the subject area
and their possible impacts on the
species or proposed critical habitat;
(4) Whether our approach to listing or
critical habitat designation could be
improved or modified in any way to
provide for greater public participation
and understanding, or to assist us in
accommodating public concerns and
comments;
(5) Any foreseeable economic,
environmental, or other impacts
resulting from the proposed designation
of critical habitat or coextensively from
the listing, and in particular, any
impacts on small entities or families;
(6) Whether the draft economic
analysis identifies all State and local
costs. If not, what other costs should be
included;
(7) Whether the draft economic
analysis makes appropriate assumptions
regarding current practices and likely
regulatory changes imposed as a result
of the listing of the species or the
proposed designation of critical habitat;
(8) Whether the draft economic
analysis correctly assesses the effect on
regional costs associated with the
proposed designation;
(9) Whether the proposed designation
will result in disproportionate economic
impacts to specific areas that should be
evaluated for possible exclusion from
the final designation;
(10) Whether the draft economic
analysis appropriately identifies all
costs that could result from the
designation or coextensively from the
listing;
(11) Specific information that would
help us further understand the effects of
designation on small businesses that
depend on recreation and tourism.
Based on the information we receive on
small business that depend on
recreation and tourism, we are
considering excluding areas based on
disproportionate costs from the final
designation per our discretion under
section 4(b)(2) of the Act. We are
specifically seeking comment along
with additional information concerning
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our final determination for these three
areas; and
(12) We are also considering
excluding areas from the final
designation, and are requesting
comments on the benefits of excluding
or including in critical habitat the areas
as discussed in our proposed rule.
Our practice is to make comments,
including names and home addresses of
respondents, available for public review
during regular business hours.
Individual respondents may request that
we withhold their home addresses from
the rulemaking record, which we will
honor to the extent allowable by law.
There also may be circumstances in
which we would withhold from the
rulemaking record a respondent’s
identity, as allowable by law. If you
wish us to withhold your name and/or
address, you must state this
prominently at the beginning of your
comment. However, we will not
consider anonymous comments. We
will make all submissions from
organizations or businesses, and from
individuals identifying themselves as
representatives or officials of
organizations or businesses, available
for public inspection in their entirety.
Comments and materials received will
be available for public inspection, by
appointment, during normal business
hours at the above address.
If you wish to comment, you may
submit your comments and materials
concerning this proposal by any one of
several methods (see ADDRESSES
section). Please submit electronic
comments to fw8snowyplover@fws.gov
in ASCII file format and avoid the use
of special characters or any form of
encryption. Please also include ‘‘Attn:
Western snowy plover’’ in your e-mail
subject header and your name and
return address in the body of your
message. If you do not receive a
confirmation from the system that we
have received your Internet message,
contact us directly by calling our Arcata
Fish and Wildlife Office at phone
number 707–822–7201. Please note that
the e-mail address
fw8snowyplover@fws.gov will be closed
out at the termination of the public
comment period.
Background
On December 17, 2004 (69 FR 75608),
we proposed to designate as critical
habitat a total of approximately 17,299
acres (ac) (7,001 hectares (ha)) within 35
units along the coasts of California,
Oregon, and Washington. In developing
this proposal, we evaluated those lands
determined to contain habitat features
essential to the conservation of the
Pacific coast population of the western
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snowy plover to ascertain if any specific
areas are appropriate for exclusion from
critical habitat pursuant to section
4(b)(2) of the Act. Section 4(b)(2)
requires us to take into account
economic and other impacts resulting
from designation, and allows us to
exclude areas with essential habitat
features if the benefits of exclusion
outweigh those of designation.
Additionally, the newly amended
section 4(a)(3) requires exclusion of
military lands subject to an Integrated
Natural Resources Management Plan
(INRMP) that benefits the species. We
have excluded several units based on
these provisions. Additionally, we have
considered, but are not proposing,
several areas that were either
unoccupied at the time of listing (1993)
or are unoccupied now.
For a discussion of previous Federal
actions regarding the Pacific coast
population of the western snowy plover,
please see the December 7, 1999, final
rule (64 FR 68508) and December 17,
2004, proposed rule (69 FR 75608) to
designate critical habitat for the Pacific
coast population of the western snowy
plover. The December 7, 1999, final rule
was remanded and partially vacated by
the United States District Court for the
District of Oregon on July 2, 2003, in
order for us to conduct a new analysis
of economic impacts (Coos County
Board of County Commissioners et al. v.
Department of the Interior et al., CV 02–
6128, M. Hogan). The court set a
deadline of December 1, 2004, for
submittal of a new proposed critical
habitat designation to the Federal
Register. The court-established deadline
for submittal of the final designation is
September 20, 2005.
Critical habitat identifies specific
areas that are essential to the
conservation of a listed species and that
may require special management
considerations or protection. If the
proposed rule is made final, section 7 of
the Act will prohibit adverse
modification of critical habitat by any
activity funded, authorized, or carried
out by any Federal agency. Federal
agencies proposing actions affecting
areas designated as critical habitat must
consult with us on the effects of their
proposed actions, pursuant to section
7(a)(2) of the Act.
Section 4 of the Act requires that we
consider economic and other relevant
impacts prior to making a final decision
on what areas to designate as critical
habitat. We are announcing the
availability of a draft economic analysis
for the proposal to designate certain
areas as critical habitat for the Pacific
coast population of the western snowy
plover. We may revise the proposal, or
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its supporting documents, to
incorporate or address new information
received during the comment period. In
particular, we may exclude an area from
critical habitat if we determine that the
benefits of excluding the area outweigh
the benefits of including the area as
critical habitat, provided such exclusion
will not result in the extinction of the
species.
Costs related to conservation activities
for the proposed western snowy plover
critical habitat pursuant to sections 4, 7,
and 10 of the Act are estimated to be
approximately $272.8 to $645.3 million
over the next 20 years on a present
value basis. In constant dollars, the draft
economic analysis estimates there will
be an economic impact of $514.9 to
$1,222.7 million expressed in constant
dollars over the next 20 years. The
activities affected by plover protection
may include recreation, plover
management, real estate development,
military base operations, and gravel
extraction. Over three quarters of all
future costs are associated with five
central and southern California units,
which include the following: Monterey
to Moss Landing (CA–12C), Pismo
Beach/Nipomo (CA–16), Morro Bay
Beach (CA–15C), Jetty Road to Aptos
(CA–12A), and Silver Strand (CA–27C).
For further information, see the draft
economic analysis; exhibits ES–6 and
ES–7 provide detailed cost information
for all activities on a unit-by-unit basis.
Required Determinations—Amended
Regulatory Planning and Review
In accordance with Executive Order
12866, this document is a significant
rule because it may raise novel legal and
policy issues. However, based on our
draft economic analysis, it is not
anticipated that the proposed
designation of critical habitat for the
Pacific coast population of the western
snowy plover will result in an annual
effect on the economy of $100 million
or more or affect the economy in a
material way. Due to the timeline for
publication in the Federal Register, the
Office of Management and Budget
(OMB) has not formally reviewed the
proposed rule or accompanying draft
economic analysis.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
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a regulatory flexibility analysis that
describes the effect of the rule on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of an agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. In our proposed rule we
withheld our determination of whether
this designation would result in a
significant effect as defined under
SBREFA until we completed our draft
economic analysis of the proposed
designation so that we would have the
factual basis for our determination.
According to the Small Business
Administration (SBA), small entities
include small organizations, such as
independent nonprofit organizations,
and small governmental jurisdictions,
including school boards and city and
town governments that serve fewer than
50,000 residents, as well as small
businesses (13 CFR 121.201). Small
businesses include manufacturing and
mining concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts to these
small entities are significant, we
considered the types of activities that
might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term significant economic
impact is meant to apply to a typical
small business firm’s business
operations.
To determine if the proposed
designation of critical habitat for the
Pacific coast population of the western
snowy plover would affect a substantial
number of small entities, we considered
the number of small entities affected
within particular types of economic
activities (e.g., recreation, residential
and related development, and
commercial gravel mining). We
considered each industry or category
individually to determine if certification
is appropriate. In estimating the
numbers of small entities potentially
affected, we also considered whether
their activities have any Federal
involvement; some kinds of activities
are unlikely to have any Federal
involvement and so will not be affected
by the designation of critical habitat.
Designation of critical habitat only
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affects activities conducted, funded,
permitted or authorized by Federal
agencies; non-Federal activities are not
affected by the designation.
If this proposed critical habitat
designation is made final, Federal
agencies must consult with us if their
activities may affect designated critical
habitat. Consultations to avoid the
destruction or adverse modification of
critical habitat would be incorporated
into the existing consultation process.
In our draft economic analysis of this
proposed designation, we evaluated the
potential economic effects on small
business entities and small governments
resulting from conservation actions
related to the listing of this species and
proposed designation of its critical
habitat. We evaluated small business
entities in five categories: Habitat and
plover management activities, beachrelated recreation activities, residential
and related development, activities on
military lands, and commercial mining.
Of these five categories, impacts of
plover conservation to habitat and
plover management, and activities on
military lands are not anticipated to
affect small entities as discussed in
Appendix A of our draft economic
analysis. The following summary of the
information contained in Appendix A of
the draft economic analysis provides the
basis for our determination.
On the basis of our analysis of
western snowy plover conservation
measures, we determined that this
proposed designation of critical habitat
for the western snowy plover would
result in potential economic effects to
recreation. Section 4 of the draft
economic analysis discusses impacts of
restrictions on recreational activity at
beaches containing potential critical
habitat for the plover. Individual
recreators may experience welfare losses
as a result of foregone or diminished
trips to the beach. If fewer trips are
taken by recreators, then some local
businesses serving these visitors may be
indirectly affected. The scope of our
analysis makes identification of the
exact businesses that may be affected
difficult. Presently, we do not believe
that this proposed designation will have
an effect on a substantial number of
small businesses and would also not
result in a significant effect to impacted
small businesses; however, we are
requesting additional information on the
effects of this proposed designation for
our determination in our final rule.
For development activities, a detailed
analysis of impacts to these activities is
presented in Section 5 of the draft
economic analysis. For this analysis, we
determined that two development
projects occurring within the potential
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critical habitat are expected to incur
costs associated with plover
conservation efforts. One of these
projects is funded by Humboldt County,
which does not qualify as a small
government, and is therefore not
relevant to this small business analysis.
The economic impact to the one project
that qualifies as a small business is
estimated to be 2.5 percent of the tax
revenue. Because only one small
business is estimated to be impacted by
this proposal and only 2.5 percent of
revenues are estimated to be incurred,
we have determined that this proposed
designation will not have an effect on a
substantial number of small businesses.
For gravel mining activities, we have
determined that five gravel mining
companies exist within Unit CA–4D of
the proposed designation of critical
habitat. We determined that the
annualized impact from plover
conservation activities to these small
businesses was approximately 0.5
percent of the total sales of these five
mining companies. From this analysis,
we have determined that this proposed
designation would also not result in a
significant effect to the annual sales of
these small businesses impacted by this
proposed designation.
Based on this data we have
determined that this proposed
designation would not affect a
substantial number of small businesses
involved in residential and related
development and commercial gravel
mining. Further, we have determined
that this proposed designation would
also not result in a significant effect to
the annual sales of those small
businesses impacted by this proposed
designation. We also believe that this
proposed designation would not affect a
substantial number of small businesses
involved in recreation and would not
result in a significant effect to these
businesses; however, we request further
information on the impacts of this
proposed designation to this economic
sector for our final rulemaking. As such,
we are certifying that this proposed
designation of critical habitat would not
result in a significant economic impact
on a substantial number of small
entities. Please refer to Appendix A of
our draft economic analysis of this
designation for a more detailed
discussion of potential economic
impacts to small business entities.
Executive Order 13211
On May 18, 2001, the President issued
Executive Order (E.O.) 13211 on
regulations that significantly affect
energy supply, distribution, and use.
E.O. 13211 requires agencies to prepare
Statements of Energy Effects when
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undertaking certain actions. The
proposed rule is considered a significant
regulatory action under E.O. 12866 due
to it potentially raising novel legal and
policy issues, but it is not expected to
significantly affect energy supplies,
distribution, or use. Appendix A of the
draft economic analysis provides a
detailed discussion and analysis of this
determination. The draft economic
analysis determines that none of the
impacts of this proposed designation are
relevant to energy supply, distribution,
or use. Therefore we have determined
that this proposed designation is not
likely to produce ‘‘a significant adverse
effect’’ as a result of western snowy
plover conservation activities.
Therefore, this action is not a significant
action and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501),
the Service makes the following
findings:
(a) This rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
tribal governments, or the private sector,
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or tribal
governments,’’ with two exceptions. It
excludes ‘‘a condition of federal
assistance.’’ It also excludes ‘‘a duty
arising from participation in a voluntary
Federal program,’’ unless the regulation
‘‘relates to a then-existing Federal
program under which $500,000,000 or
more is provided annually to State,
local, and tribal governments under
entitlement authority,’’ if the provision
would ‘‘increase the stringency of
conditions of assistance’’ or ‘‘place caps
upon, or otherwise decrease, the Federal
Government’s responsibility to provide
funding’’ and the State, local, or tribal
governments ‘‘lack authority’’ to adjust
accordingly. (At the time of enactment,
these entitlement programs were:
Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation
State Grants; Foster Care, Adoption
Assistance, and Independent Living;
Family Support Welfare Services; and
Child Support Enforcement.) ‘‘Federal
private sector mandate’’ includes a
regulation that ‘‘would impose an
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enforceable duty upon the private
sector, except (i) a condition of Federal
assistance; or (ii) a duty arising from
participation in a voluntary Federal
program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal Government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. Non-Federal
entities that receive Federal funding,
assistance, permits, or otherwise require
approval or authorization from a Federal
agency for an action may be indirectly
impacted by the designation of critical
habitat. However, the legally binding
duty to avoid destruction or adverse
modification of critical habitat rests
squarely on the Federal agency.
Furthermore, to the extent that nonFederal entities are indirectly impacted
because they receive Federal assistance
or participate in a voluntary Federal aid
program, the Unfunded Mandates
Reform Act would not apply; nor would
critical habitat shift the costs of the large
entitlement programs listed above on to
State governments.
(b) The economic analysis discusses
potential impacts of critical habitat
designation for the western snowy
plover including administrative costs,
water management activities, oil and gas
activities, concentrated animal feeding
operations, agriculture, and
transportation. The analysis estimates
that costs of the rule could range from
$272.8 to $645.3 million over the next
20 years. In constant dollars, the draft
economic analysis estimates there will
be an economic impact of $514.9 to
$1,222.7 million over the next 20 years.
Recreational activities are expected to
experience the greatest economic
impacts related to western snowy plover
conservation activities. Impacts on
small governments are not anticipated.
For example, costs to recreators would
not be expected to be passed on to
entities that qualify as small
governments. Consequently, for the
reasons discussed above, we do not
believe that the designation of critical
habitat for the western snowy plover
will significantly or uniquely affect
small government entities. As such, a
Small Government Agency Plan is not
required.
Takings
In accordance with Executive Order
12630 (‘‘Government Actions and
Interference with Constitutionally
Protected Private Property Rights’’), we
have analyzed the potential takings
implications of proposing critical
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habitat for western snowy plover.
Critical habitat designation does not
affect landowner actions that do not
require Federal funding or permits, nor
does it preclude development of habitat
conservation programs or issuance of
incidental take permits to permit actions
that do require Federal funding or
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permits to go forward. In conclusion,
the designation of critical habitat for the
western snowy plover does not pose
significant takings implications.
Authority
The authority for this action is the
Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
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Dated: August 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 05–16149 Filed 8–15–05; 8:45 am]
BILLING CODE 4310–55–P
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[Federal Register Volume 70, Number 157 (Tuesday, August 16, 2005)]
[Proposed Rules]
[Pages 48094-48098]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-16149]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT89
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Pacific Coast Population of the
Western Snowy Plover
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; notice of availability of draft economic
analysis.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
availability of the draft economic analysis for the proposal to
designate critical habitat for the Pacific coast distinct population
segment of the western snowy plover (Charadrius alexandrinus nivosus)
under the Endangered Species Act of 1973 (Act), as amended. The draft
economic analysis finds that, over the next 20 years, costs associated
with western snowy plover conservation activities are forecast to range
from $272.8 to $645.3 million. In constant dollars, the draft economic
analysis estimates there will be an economic impact of $514.9 to
$1,222.7 million over the next 20 years. The greatest economic impact
(approximately 90 to 95 percent of total future impact using 3 and 7
percent discount rates) is expected to occur to recreation; other
activities impacted include plover management, real estate development,
military base operations, and gravel extraction. Comments previously
submitted on the December 17, 2004, proposed rule (69 FR 75608) during
the initial comment period need not be resubmitted as they have been
incorporated into the public record and will be fully considered in
preparation of the final rule.
DATES: Comments must be submitted directly to the Service (see
ADDRESSES section) on or before 30 days after publication of this
notice.
ADDRESSES: If you wish to comment on the proposed rule or draft
economic analysis, you may submit your comments and materials by any
one of several methods:
1. You may submit written comments and information by mail or hand-
delivery to the Arcata Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 1655 Heindon Road, Arcata, California 95521.
2. Written comments may be sent by facsimile to 707-822-8411.
3. You may send your comments by electronic mail (e-mail) to
fw8snowyplover@fws.gov. For directions on how to submit electronic
filing of comments, see the ``Public Comments Solicited'' section
below.
You may obtain copies of the draft economic analysis by mail or by
visiting our Web site at https://www.fws.gov/pacific/sacramento/
default.htm. You may review comments and materials received, and review
supporting documentation used in preparation of this proposed rule, by
appointment, during normal business hours, at the above address.
FOR FURTHER INFORMATION CONTACT: Michael Long, Field Supervisor, Arcata
Fish and Wildlife Office (telephone 707-822-7201; facsimile 707-822-
8411).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning the proposed rule and the draft economic analysis. On
the basis of public comment, during the development of our final
determination, we may find that areas proposed are not essential, are
appropriate for exclusion under section
[[Page 48095]]
4(b)(2) of the Act, or are not appropriate for exclusion. We
particularly seek comments concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefits of designation will outweigh benefits of
exclusion;
(2) Specific information on the distribution of the western snowy
plover, the amount and distribution of the species' habitat, and which
habitat is essential to the conservation of the species, and why;
(3) Land-use designations and current or planned activities in the
subject area and their possible impacts on the species or proposed
critical habitat;
(4) Whether our approach to listing or critical habitat designation
could be improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments;
(5) Any foreseeable economic, environmental, or other impacts
resulting from the proposed designation of critical habitat or
coextensively from the listing, and in particular, any impacts on small
entities or families;
(6) Whether the draft economic analysis identifies all State and
local costs. If not, what other costs should be included;
(7) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and likely regulatory changes
imposed as a result of the listing of the species or the proposed
designation of critical habitat;
(8) Whether the draft economic analysis correctly assesses the
effect on regional costs associated with the proposed designation;
(9) Whether the proposed designation will result in
disproportionate economic impacts to specific areas that should be
evaluated for possible exclusion from the final designation;
(10) Whether the draft economic analysis appropriately identifies
all costs that could result from the designation or coextensively from
the listing;
(11) Specific information that would help us further understand the
effects of designation on small businesses that depend on recreation
and tourism. Based on the information we receive on small business that
depend on recreation and tourism, we are considering excluding areas
based on disproportionate costs from the final designation per our
discretion under section 4(b)(2) of the Act. We are specifically
seeking comment along with additional information concerning our final
determination for these three areas; and
(12) We are also considering excluding areas from the final
designation, and are requesting comments on the benefits of excluding
or including in critical habitat the areas as discussed in our proposed
rule.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please submit electronic comments to fw8snowyplover@fws.gov
in ASCII file format and avoid the use of special characters or any
form of encryption. Please also include ``Attn: Western snowy plover''
in your e-mail subject header and your name and return address in the
body of your message. If you do not receive a confirmation from the
system that we have received your Internet message, contact us directly
by calling our Arcata Fish and Wildlife Office at phone number 707-822-
7201. Please note that the e-mail address fw8snowyplover@fws.gov will
be closed out at the termination of the public comment period.
Background
On December 17, 2004 (69 FR 75608), we proposed to designate as
critical habitat a total of approximately 17,299 acres (ac) (7,001
hectares (ha)) within 35 units along the coasts of California, Oregon,
and Washington. In developing this proposal, we evaluated those lands
determined to contain habitat features essential to the conservation of
the Pacific coast population of the western snowy plover to ascertain
if any specific areas are appropriate for exclusion from critical
habitat pursuant to section 4(b)(2) of the Act. Section 4(b)(2)
requires us to take into account economic and other impacts resulting
from designation, and allows us to exclude areas with essential habitat
features if the benefits of exclusion outweigh those of designation.
Additionally, the newly amended section 4(a)(3) requires exclusion of
military lands subject to an Integrated Natural Resources Management
Plan (INRMP) that benefits the species. We have excluded several units
based on these provisions. Additionally, we have considered, but are
not proposing, several areas that were either unoccupied at the time of
listing (1993) or are unoccupied now.
For a discussion of previous Federal actions regarding the Pacific
coast population of the western snowy plover, please see the December
7, 1999, final rule (64 FR 68508) and December 17, 2004, proposed rule
(69 FR 75608) to designate critical habitat for the Pacific coast
population of the western snowy plover. The December 7, 1999, final
rule was remanded and partially vacated by the United States District
Court for the District of Oregon on July 2, 2003, in order for us to
conduct a new analysis of economic impacts (Coos County Board of County
Commissioners et al. v. Department of the Interior et al., CV 02-6128,
M. Hogan). The court set a deadline of December 1, 2004, for submittal
of a new proposed critical habitat designation to the Federal Register.
The court-established deadline for submittal of the final designation
is September 20, 2005.
Critical habitat identifies specific areas that are essential to
the conservation of a listed species and that may require special
management considerations or protection. If the proposed rule is made
final, section 7 of the Act will prohibit adverse modification of
critical habitat by any activity funded, authorized, or carried out by
any Federal agency. Federal agencies proposing actions affecting areas
designated as critical habitat must consult with us on the effects of
their proposed actions, pursuant to section 7(a)(2) of the Act.
Section 4 of the Act requires that we consider economic and other
relevant impacts prior to making a final decision on what areas to
designate as critical habitat. We are announcing the availability of a
draft economic analysis for the proposal to designate certain areas as
critical habitat for the Pacific coast population of the western snowy
plover. We may revise the proposal, or
[[Page 48096]]
its supporting documents, to incorporate or address new information
received during the comment period. In particular, we may exclude an
area from critical habitat if we determine that the benefits of
excluding the area outweigh the benefits of including the area as
critical habitat, provided such exclusion will not result in the
extinction of the species.
Costs related to conservation activities for the proposed western
snowy plover critical habitat pursuant to sections 4, 7, and 10 of the
Act are estimated to be approximately $272.8 to $645.3 million over the
next 20 years on a present value basis. In constant dollars, the draft
economic analysis estimates there will be an economic impact of $514.9
to $1,222.7 million expressed in constant dollars over the next 20
years. The activities affected by plover protection may include
recreation, plover management, real estate development, military base
operations, and gravel extraction. Over three quarters of all future
costs are associated with five central and southern California units,
which include the following: Monterey to Moss Landing (CA-12C), Pismo
Beach/Nipomo (CA-16), Morro Bay Beach (CA-15C), Jetty Road to Aptos
(CA-12A), and Silver Strand (CA-27C). For further information, see the
draft economic analysis; exhibits ES-6 and ES-7 provide detailed cost
information for all activities on a unit-by-unit basis.
Required Determinations--Amended
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, based on our draft economic analysis, it is not anticipated
that the proposed designation of critical habitat for the Pacific coast
population of the western snowy plover will result in an annual effect
on the economy of $100 million or more or affect the economy in a
material way. Due to the timeline for publication in the Federal
Register, the Office of Management and Budget (OMB) has not formally
reviewed the proposed rule or accompanying draft economic analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. In our proposed rule
we withheld our determination of whether this designation would result
in a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the Pacific coast population of the western snowy plover would affect a
substantial number of small entities, we considered the number of small
entities affected within particular types of economic activities (e.g.,
recreation, residential and related development, and commercial gravel
mining). We considered each industry or category individually to
determine if certification is appropriate. In estimating the numbers of
small entities potentially affected, we also considered whether their
activities have any Federal involvement; some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
the designation of critical habitat. Designation of critical habitat
only affects activities conducted, funded, permitted or authorized by
Federal agencies; non-Federal activities are not affected by the
designation.
If this proposed critical habitat designation is made final,
Federal agencies must consult with us if their activities may affect
designated critical habitat. Consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
existing consultation process.
In our draft economic analysis of this proposed designation, we
evaluated the potential economic effects on small business entities and
small governments resulting from conservation actions related to the
listing of this species and proposed designation of its critical
habitat. We evaluated small business entities in five categories:
Habitat and plover management activities, beach-related recreation
activities, residential and related development, activities on military
lands, and commercial mining. Of these five categories, impacts of
plover conservation to habitat and plover management, and activities on
military lands are not anticipated to affect small entities as
discussed in Appendix A of our draft economic analysis. The following
summary of the information contained in Appendix A of the draft
economic analysis provides the basis for our determination.
On the basis of our analysis of western snowy plover conservation
measures, we determined that this proposed designation of critical
habitat for the western snowy plover would result in potential economic
effects to recreation. Section 4 of the draft economic analysis
discusses impacts of restrictions on recreational activity at beaches
containing potential critical habitat for the plover. Individual
recreators may experience welfare losses as a result of foregone or
diminished trips to the beach. If fewer trips are taken by recreators,
then some local businesses serving these visitors may be indirectly
affected. The scope of our analysis makes identification of the exact
businesses that may be affected difficult. Presently, we do not believe
that this proposed designation will have an effect on a substantial
number of small businesses and would also not result in a significant
effect to impacted small businesses; however, we are requesting
additional information on the effects of this proposed designation for
our determination in our final rule.
For development activities, a detailed analysis of impacts to these
activities is presented in Section 5 of the draft economic analysis.
For this analysis, we determined that two development projects
occurring within the potential
[[Page 48097]]
critical habitat are expected to incur costs associated with plover
conservation efforts. One of these projects is funded by Humboldt
County, which does not qualify as a small government, and is therefore
not relevant to this small business analysis. The economic impact to
the one project that qualifies as a small business is estimated to be
2.5 percent of the tax revenue. Because only one small business is
estimated to be impacted by this proposal and only 2.5 percent of
revenues are estimated to be incurred, we have determined that this
proposed designation will not have an effect on a substantial number of
small businesses.
For gravel mining activities, we have determined that five gravel
mining companies exist within Unit CA-4D of the proposed designation of
critical habitat. We determined that the annualized impact from plover
conservation activities to these small businesses was approximately 0.5
percent of the total sales of these five mining companies. From this
analysis, we have determined that this proposed designation would also
not result in a significant effect to the annual sales of these small
businesses impacted by this proposed designation.
Based on this data we have determined that this proposed
designation would not affect a substantial number of small businesses
involved in residential and related development and commercial gravel
mining. Further, we have determined that this proposed designation
would also not result in a significant effect to the annual sales of
those small businesses impacted by this proposed designation. We also
believe that this proposed designation would not affect a substantial
number of small businesses involved in recreation and would not result
in a significant effect to these businesses; however, we request
further information on the impacts of this proposed designation to this
economic sector for our final rulemaking. As such, we are certifying
that this proposed designation of critical habitat would not result in
a significant economic impact on a substantial number of small
entities. Please refer to Appendix A of our draft economic analysis of
this designation for a more detailed discussion of potential economic
impacts to small business entities.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. The proposed rule is
considered a significant regulatory action under E.O. 12866 due to it
potentially raising novel legal and policy issues, but it is not
expected to significantly affect energy supplies, distribution, or use.
Appendix A of the draft economic analysis provides a detailed
discussion and analysis of this determination. The draft economic
analysis determines that none of the impacts of this proposed
designation are relevant to energy supply, distribution, or use.
Therefore we have determined that this proposed designation is not
likely to produce ``a significant adverse effect'' as a result of
western snowy plover conservation activities. Therefore, this action is
not a significant action and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. (At the
time of enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) The economic analysis discusses potential impacts of critical
habitat designation for the western snowy plover including
administrative costs, water management activities, oil and gas
activities, concentrated animal feeding operations, agriculture, and
transportation. The analysis estimates that costs of the rule could
range from $272.8 to $645.3 million over the next 20 years. In constant
dollars, the draft economic analysis estimates there will be an
economic impact of $514.9 to $1,222.7 million over the next 20 years.
Recreational activities are expected to experience the greatest
economic impacts related to western snowy plover conservation
activities. Impacts on small governments are not anticipated. For
example, costs to recreators would not be expected to be passed on to
entities that qualify as small governments. Consequently, for the
reasons discussed above, we do not believe that the designation of
critical habitat for the western snowy plover will significantly or
uniquely affect small government entities. As such, a Small Government
Agency Plan is not required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical
[[Page 48098]]
habitat for western snowy plover. Critical habitat designation does not
affect landowner actions that do not require Federal funding or
permits, nor does it preclude development of habitat conservation
programs or issuance of incidental take permits to permit actions that
do require Federal funding or permits to go forward. In conclusion, the
designation of critical habitat for the western snowy plover does not
pose significant takings implications.
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: August 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-16149 Filed 8-15-05; 8:45 am]
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