Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus), 20581-20599 [E8-6874]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Proposed Rules]
[Pages 20581-20599]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6874]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0008]; [92210-1117-0000 B4]
RIN 1018-AV07


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the San Bernardino Kangaroo Rat 
(Dipodomys merriami parvus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, changes to the 
proposed critical habitat revision, notice of availability of draft 
economic analysis, and amended required determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on our June 19, 2007, proposed revision 
to critical habitat for the San Bernardino kangaroo rat (Dipodomys 
merriami parvus) under the Endangered Species Act of 1973, as amended 
(Act). In this document, we also propose to: Increase the size of 
proposed critical habitat Unit 1 (Santa Ana River Wash), and add two 
new proposed units: Unit 4 (Cable Creek Wash) and Unit 5 (Bautista 
Creek). In total, we are adding approximately 1,579 acres (ac) (638 
hectares (ha)), which are currently designated as critical habitat for 
this subspecies, to our proposed revision to critical habitat. We also 
announce the availability of the draft economic analysis (DEA) of the 
proposed revision of critical habitat and an amended required 
determinations section of the proposal. The DEA estimates potential 
costs attributed to the revised critical habitat designation 
(incremental costs) to be approximately $71.2 million in present value 
terms using a 3 percent discount rate over a 23-year period in areas 
proposed as critical habitat. We are reopening the comment period to 
allow all interested parties an opportunity to comment simultaneously 
on the original proposed revision of critical habitat, the additions to 
revised critical habitat proposed in this document, the associated DEA, 
and the amended required determinations section. Comments previously 
submitted on this rulemaking do not need to be resubmitted, as they 
will be incorporated into the public record and fully considered when 
preparing our final determination.

DATES: We will accept comments received or postmarked on or before May 
16, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV07; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.

We will not accept e-mail or faxes. We will post all comments on http:/
/www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Carlsbad, CA 92011; telephone 760/431-9440; 
facsimile 760/431-5901. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed revision to critical habitat 
for the San Bernardino kangaroo rat published in the Federal Register 
on June 19, 2007 (72 FR 33808), the additions to revised critical 
habitat proposed in this document, the DEA of the proposed revised 
designation, and the amended required determinations provided in this 
document. We will consider information and recommendations from all 
interested parties. We are particularly interested in comments 
concerning:
    (1) The reasons why habitat should or should not be designated as 
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.), 
specifically the benefits of excluding or the benefits of including any 
particular area as critical habitat.
    (2) Specific information on:
     The amount and distribution of San Bernardino kangaroo rat 
habitat,
     Areas occupied by the subspecies at the time of listing 
that contain features essential for the conservation of the subspecies 
we should include in the designation and why, and
     Areas not occupied by the subspecies at the time of 
listing are essential to the conservation of the subspecies and why.

[[Page 20582]]

    (3) Specific information on dispersal areas important for habitat 
connectivity, their role in the conservation of the subspecies, and why 
such areas should or should not be included in the critical habitat 
designation.
    (4) Our revision of criteria used to identify critical habitat, our 
proposed addition of areas to critical habitat Unit 1, and the proposed 
addition of Units 4 and 5 as described in this notice (see Changes to 
Proposed Critical Habitat section below).
    (5) Our proposed exclusions totaling 2,544 ac (1,029 ha) of San 
Bernardino kangaroo rat habitat and whether the benefits of excluding 
these areas would outweigh the benefits of including these areas under 
section 4(b)(2) of the Act (see the Exclusions Under Section 4(b)(2) of 
the Act section of the June 19, 2007, proposed rule (72 FR 33808) for a 
detailed discussion).
    (6) Any areas included in the proposed revision of critical habitat 
that are covered by existing or proposed conservation or management 
plans that we should consider for exclusion from the final designation 
under section 4(b)(2) of the Act. We specifically request information 
on any operative or draft Habitat Conservation Plans for the San 
Bernardino kangaroo rat that have been prepared under section 
10(a)(1)(B) of the Act, as well as any other management or conservation 
plan or agreement that benefits the kangaroo rat or its essential 
physical and biological features.
    (7) Specific information regarding the current status of plan 
implementation for the following management plans: the Woolly-Star 
Preserve Area Management Plans; the Former Norton Air Force Base 
Conservation Management Plan; the Cajon Creek Habitat Conservation 
Management Area Habitat Enhancement and Management Plan; and Western 
Riverside Multiple Species Habitat Conservation Plan.
    (8) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed revised critical 
habitat.
    (9) Information on the extent to which any Federal, State, and 
local environmental protection measures we reference in the DEA may 
have been adopted largely as a result of the subspecies' listing.
    (10) Information on whether the DEA identifies all Federal, State, 
and local costs and benefits attributable to the proposed revision of 
critical habitat, and information on any costs or benefits that we have 
overlooked.
    (11) Information on the economic costs and benefits associated with 
the proposed additions to revised critical habitat announced in this 
document.
    (12) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes likely if we 
designate revised critical habitat.
    (13) Information on whether the DEA correctly assesses the effect 
on regional costs associated with any land use controls that may result 
from the revised designation of critical habitat.
    (14) Information on areas that the revised critical habitat 
designation could potentially impact to a disproportionate degree.
    (15) Any foreseeable economic, national security, or other impacts 
resulting from the proposed revised designation and, in particular, any 
impacts on small entities, and information on the benefits of including 
or excluding areas that exhibit these impacts.
    (16) Information on whether the DEA appropriately identifies all 
costs that could result from the proposed revised designation.
    (17) Information on any quantifiable economic benefits of the 
revised designation of critical habitat.
    (18) Whether the benefits of excluding any particular area outweigh 
the benefits of including that area under section 4(b)(2) of the Act.
    (19) Economic data on the incremental costs of designating any 
particular area as revised critical habitat.
    (20) Whether our approach to designating critical habitat 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.
    If you submitted comments or information on the proposed rule (72 
FR 33808) during the initial comment period from June 19 to August 20, 
2007, or the second comment period from December 11, 2007 to January 
25, 2008 (opened to announce the public hearing held on January 10, 
2008, in San Bernardino, California (72 FR 70284)), please do not 
resubmit them. These comments have been incorporated into the public 
record and will be fully considered in the preparation of our final 
determination.
    You may submit your comments and materials concerning this proposed 
rule and draft economic analysis by one of the methods listed in the 
ADDRESSES section. We will not accept anonymous comments; your comment 
must include your first and last name, city, State, country, and postal 
(zip) code. Finally, we will not consider hand-delivered comments or 
mailed comments that are not received or postmarked, respectively, by 
the date specified in the DATES section.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in addition to the required items 
specified in the previous paragraph, such as your street address, phone 
number, or e-mail address, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so.
    Our final determination concerning revised critical habitat for the 
San Bernardino kangaroo rat will take into consideration all written 
comments we receive, oral or written comments we received at the public 
hearing on January 10, 2008, and any additional information we receive 
during all comment periods. On the basis of public comments, we may, 
during the development of our final determination, find that areas 
proposed are not essential, are appropriate for exclusion under section 
4(b)(2) of the Act, or are not appropriate for exclusion.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Carlsbad Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).
    You may obtain copies of the original proposed revision of critical 
habitat and the DEA on the Internet at https://www.regulations.gov, or 
by contacting the Carlsbad Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    On March 30, 2005, the Pacific Legal Foundation filed suit against 
the Service challenging our failure to provide adequate delineation, 
justification, or sufficient analysis of economic and other impacts in 
the designation of critical habitat for the San Bernardino kangaroo rat 
and 26 other species. On March 23, 2006, a settlement agreement was 
reached requiring the Service to propose to revise critical habitat for 
the San Bernardino kangaroo rat as appropriate. The settlement 
stipulated that on or before June 1, 2007, the Service was required to 
submit for publication to the Federal Register a proposed rule 
regarding any revisions to the designation of critical habitat, and 
that we must submit a final rule for

[[Page 20583]]

publication to the Federal Register on or before June 1, 2008. On June 
19, 2007, we published a proposed rule to revise critical habitat for 
the San Bernardino kangaroo rat (72 FR 33808), identifying 
approximately 9,079 ac (3,674 ha) in Riverside and San Bernardino 
Counties, California, that meet the definition of critical habitat for 
this subspecies. Of this, we proposed to exclude approximately 2,544 ac 
(1,029 ha) of non-Federal land covered by the Woolly-Star Preserve Area 
Management Plans, the Former Norton Air Force Base Conservation 
Management Plan, the Cajon Creek Habitat Conservation Management Area 
Habitat Enhancement and Management Plan, and the Western Riverside 
County Multiple Species Habitat Conservation Plan from the final 
designation under section 4(b)(2) of the Act (see 72 FR 33808, 
``Exclusions Under Section 4(b)(2) of the Act'' section of the June 19, 
2007, proposed revision to critical habitat for details).
    Section 3 of the Act defines critical habitat as (i) The specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographical area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. If 
the proposed rule is made final, section 7 of the Act will prohibit 
destruction or 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, 
under section 7(a)(2) of the Act.
    Under section 4(b)(2) of the Act, we may exclude an area from 
critical habitat if we determine that the benefits of such exclusion 
outweigh the benefits of including that particular area as critical 
habitat, unless failure to designate that specific area as critical 
habitat will result in the extinction of the species. We may exclude an 
area from designated critical habitat based on economic impacts, 
national security, or any other relevant impact.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. We have prepared a DEA of the June 
19, 2007, proposed revision of critical habitat for the San Bernardino 
kangaroo rat (72 FR 33808). The DEA does not analyze potential economic 
impacts associated with the proposed additions to revised critical 
habitat announced in this document; however, an addendum to the DEA 
will be prepared for those areas. A final economic analysis will 
address all areas designated as revised critical habitat.
    The intent of the DEA is to quantify the baseline and incremental 
economic impacts of all potential conservation efforts for the San 
Bernardino kangaroo rat. Baseline impacts include the potential 
economic impacts of all actions relating to the conservation of the San 
Bernardino kangaroo rat, including costs associated with sections 4, 7, 
and 10 of the Act, as well as those attributable to past efforts to 
conserve currently designated critical habitat. Baseline impacts also 
include the economic impacts of protective measures taken as a result 
of other Federal, State, and local laws that aid habitat conservation 
in the study area. Incremental impacts are those potential future 
economic impacts of conservation actions relating to the revised 
designation of critical habitat; these would not be expected to occur 
but for the designation of critical habitat.
    For the purposes of the economic analysis and assessing effects on 
development, the proposed revised critical habitat was divided into 
upland and lowland areas. Lowland areas are occupied by the San 
Bernardino kangaroo rat year-round, at high densities of individuals. 
Because this is such a narrow endemic subspecies found in very few 
locations, any adverse modification decision would likely be coincident 
to a jeopardy determination for the same action. Thus, potential 
economic impacts from conservation efforts that may be necessary to 
avoid adverse modification of critical habitat within lowland areas are 
considered co-extensive with the impacts of the listing of the San 
Bernardino kangaroo rat and, for the purposes of the economic analysis, 
are considered to be baseline impacts of the revised designation.
    The general conservation role of critical habitat designated within 
the upland habitat areas is to act as refuge for the San Bernardino 
kangaroo rat during flooding events that inundate the low-lying 
alluvial fans (i.e., the lowlands), which this subspecies usually 
occupies. Conservation efforts not otherwise necessary to avoid 
jeopardy to the San Bernardino kangaroo rat may be required in upland 
areas designated as critical habitat to ensure that the conservation 
role and functional ability of the areas are conserved. Therefore, 
incremental costs may be incurred in upland areas designated as 
critical habitat, as it is reasonable to expect that the Service may 
recommend avoidance and minimization efforts in such upland areas (up 
to and including complete avoidance) specifically to avoid the 
destruction or adverse modification of the critical habitat. Thus, for 
purposes of the economic analysis, potential economic impacts of 
conservation efforts that may result in reduced or no development in 
the upland areas designated as critical habitat are considered 
incremental impacts of the revised designation.
    Baseline economic impacts are those impacts that result from 
listing and other conservation efforts for the San Bernardino kangaroo 
rat, including past costs incurred due to the existing designation of 
critical habitat. Baseline economic impacts consist of impacts to water 
conservation efforts and impacts due to potential constraints on 
development. Past baseline impacts total $14.5 million in present value 
terms using a 3 percent discount rate. Future baseline impacts are 
estimated to be $243.9 million in present value terms using a 3 percent 
discount rate over a 23-year period from 2008 to 2030, or $15.2 million 
annualized. Stated in other terms, these future baseline impacts are 
estimated to be approximately $342 million ($14.9 million annualized) 
in undiscounted dollars or approximately $145.8 million ($79.6 million 
annualized) in present value terms using a 7 percent discount rate.
    The vast majority of incremental impacts attributed to the proposed 
revised critical habitat designation are due to potential constraints 
on development within upland areas. The projected number of housing 
units in upland areas of proposed revised critical habitat is 847. 
Assuming the potential constraints on development in the upland areas 
result in complete avoidance of these areas, the DEA estimates 
potential incremental economic impacts in areas proposed as revised 
critical habitat over a 23-year period from 2008 to 2030 to be $71.2 
million in present value terms ($4.3 million annualized), using a 3 
percent discount rate. These impacts are estimated to be approximately 
$99.6 million ($4.3 million annualized) in undiscounted dollars or 
approximately

[[Page 20584]]

$48.8 million ($26.3 million annualized) in present value terms using a 
7 percent discount rate. A very small portion of incremental effects 
are attributed to water conservation activities in upland areas, 
approximately $90 annualized at a 3 percent discount rate. No 
incremental economic impacts are expected in areas proposed for 
exclusion from the revised critical habitat. The potential economic 
impacts in these areas are all considered to be baseline impacts (refer 
to Appendix A in DEA).
    The economic analysis considers both economic efficiency and 
distributional effects. In the case of habitat conservation, efficiency 
effects generally reflect the ``opportunity costs'' associated with the 
commitment of resources to comply with habitat protection measures 
(such as lost economic opportunities associated with restrictions on 
land use). The economic analysis also addresses how potential economic 
impacts are likely to be distributed, including an assessment of any 
local or regional impacts of habitat conservation and the potential 
effects of conservation activities on government agencies, private 
businesses, and individuals. The analysis measures lost economic 
efficiency associated with residential and commercial development and 
public projects and activities, such as economic impacts on water 
management and transportation projects, Federal lands, small entities, 
and the energy industry. This information can be used by the decision-
makers to assess whether the effects of the revised designation might 
unduly burden a particular group or economic sector.
    Finally, the economic analysis looks retrospectively at costs that 
have been incurred since the date we listed the San Bernardino kangaroo 
rat as endangered (September 24, 1998; 63 FR 51005), and considers 
those costs that may occur in the years following the revised 
designation of critical habitat, with the timeframes for this analysis 
varying by activity. The baseline and incremental economic impacts of 
potential conservation efforts for the San Bernardino kangaroo rat are 
associated with the following activities: (1) Water conservation, (2) 
flood control, (3) urban development, (4) sand and gravel mining, (5) 
agricultural activities, and (6) off-road vehicle activities.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as on all aspects of the proposed rule, the 
additions to revised critical habitat proposed in this document, and 
our amended required determinations. The final designation may differ 
from the proposed rule based on new information we receive during the 
public comment periods. Our supporting record will reflect any new 
information used in making the final designation. 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 
revised critical habitat, provided such exclusion will not result in 
the extinction of the subspecies.

Changes to Proposed Revised Critical Habitat

Criteria Used To Identify Critical Habitat

    In this document, we are advising the public of revisions we made 
to the criteria we used to identify critical habitat (as described in 
the June 19, 2007, proposed rule (72 FR 33808)). During the first and 
second comment periods for the proposed rule, we received significant 
comments from the public, including biologists familiar with the San 
Bernardino kangaroo rat, which lead us to reevaluate and revise the 
criteria used to identify critical habitat. Below, we present our 
revised ``Criteria Used To Identify Critical Habitat'' section, which 
replaces the ``Criteria Used To Identify Critical Habitat'' section 
provided in the June 19, 2007, proposed rule.
    We are proposing to designate critical habitat for the San 
Bernardino kangaroo rat in areas we have determined to be occupied by 
the subspecies at the time of listing, and that contain the physical 
and biological features essential to the conservation of the 
subspecies. The physical and biological features are those primary 
constituent elements (PCEs) laid out in a specific spatial arrangement 
and quantity to support the life history functions essential for the 
conservation of this subspecies. Some designated lands contain all PCEs 
and support multiple life processes. Some lands contain only a portion 
of the PCEs necessary to support the particular biological value of 
that habitat to this subspecies.
    We define occupied habitat as: (a) Those areas containing 
occurrence data prior to listing (1980 to 1998); (b) those areas 
containing occurrence data since the time of listing (1998 to present); 
and (c) areas adjacent to and between occurrence points that maintain 
habitat connectivity in one continuous patch of suitable habitat. As 
discussed in the Background section of the June 19, 2007, proposed rule 
(72 FR 33808), occurrences discovered since the listing of the 
subspecies in 1998 are within areas considered to be occupied by the 
subspecies at the time of listing (Santa Ana River, Lytle/Cajon Creek, 
and San Jacinto River washes).
    In this proposed designation, we have focused primarily on core 
populations (i.e., areas where the subspecies has been repeatedly 
detected through live trapping) in undisturbed habitat in the Santa Ana 
River, Lytle/Cajon Creeks, and the San Jacinto River washes. We believe 
that protecting these three largest core populations is necessary for 
the conservation of the species. Protecting small, isolated, peripheral 
populations in areas of degraded habitat and those areas devoid of 
fluvial processes where detection of San Bernardino kangaroo rat has 
been sporadic is not essential for recovery as these populations are 
likely unsustainable. In defining core population boundaries, we 
included areas demographically disconnected from the three largest 
populations, but which may provide the subspecies with protection 
against demographically stochastic events (e.g., flooding in excess of 
a 100-year storm event that removes flood-plain terrace habitat, 
earthquakes, fires followed by erosion of adjacent slopes that bury 
occupied habitat) which could cause local extinctions in the larger 
units. These areas are occupied by the subspecies and likely contain 
self-sustaining populations, relatively undisturbed alluvial scrub 
habitat with largely unimpeded fluvial dynamics, the PCEs identified 
for the subspecies, and are important for the long-term conservation of 
the subspecies.
    Utilizing 2005 aerial imagery and occurrence data to determine 
areas of occupancy, we delineated critical habitat on maps to include 
occupied, non-degraded alluvial fans, washes, floodplains, and adjacent 
upland areas containing the PCEs required by the San Bernardino 
kangaroo rat. We then made site visits with biologists considered to be 
experts on this subspecies and its habitat to confirm the presence of 
PCEs in the areas delineated on the maps. Areas determined not to 
contain any of the PCEs are not proposed as critical habitat. Because 
of the importance of upland habitat as a source of animals to 
repopulate wash areas following flood events, we include upland habitat 
containing one or more PCEs, and adjacent to occupied wash habitat in 
this proposed designation.
    When determining the critical habitat boundaries, we made every 
effort to avoid including developed areas such as buildings, paved 
areas, and other structures that lack PCEs for the San Bernardino 
kangaroo rat. Areas

[[Page 20585]]

currently being used for sand/gravel mining operations (e.g., pits, 
staging areas) do not contain the physical and biological features 
essential to the conservation of the San Bernardino kangaroo rat. The 
scale of the maps prepared under the parameters for publication within 
the Code of Federal Regulations may not reflect the exclusion of such 
developed areas. Any developed structures and the land under them 
inadvertently left inside critical habitat boundaries shown on the maps 
of this proposed critical habitat have been excluded by text in this 
rule and would not be designated as critical habitat. Therefore, 
Federal actions limited to these areas would not trigger section 7 
consultation, unless they may affect the subspecies or physical and 
biological features in adjacent critical habitat.

Areas Proposed as Critical Habitat

    In this document, we are proposing additional revisions to the area 
of critical habitat described in the June 19, 2007, proposed rule (72 
FR 33808). During the first and second comment periods for the proposed 
rule, we received significant comments from the public, including 
biologists familiar with the San Bernardino kangaroo rat, on areas that 
are essential to the subspecies and should be included in the 
designation. As a result of these comments, new information received, 
and revision of the criteria used to identify critical habitat, we 
reevaluated the following areas: Mill Creek, Plunge Creek (including 
areas providing habitat connectivity of the Plunge Creek wash with the 
Santa Ana River wash), Cable Creek wash, and Bautista Creek. All of 
these areas are currently designated as critical habitat for the San 
Bernardino kangaroo rat (see 50 CFR 17.95(a); 67 FR 19812, April 23, 
2002); however, we did not propose these areas as critical habitat in 
the June 19, 2007, proposed revision to critical habitat (73 FR 33808). 
Below we describe each area we reevaluated, explain why we did not 
include the area in the 2007 proposed rule, and explain why we are now 
proposing the area for inclusion in the revised designation of critical 
habitat.

Mill Creek

    Mill Creek flows into and joins the Santa Ana River wash (Unit 1) 
in the eastern side of the unit. We did not include the Mill Creek area 
in the 2007 proposed rule (72 FR 33808), although we indicated that it 
was considered important to the subspecies by contributing fluvial 
dynamics to the Santa Ana River wash. At the time of the proposed 
revised rule, we had limited survey data indicating Mill Creek was 
sparsely occupied by the San Bernardino kangaroo rat. Furthermore, we 
determined this area contained large expanses of unsuitable habitat. As 
such, we did not include the majority of lower Mill Creek in the June 
19, 2007 proposed revision to critical habitat.
    During the public comment period, we received a number of comments 
highlighting the importance of Mill Creek as an area not only occupied 
by the San Bernardino kangaroo rat connected to and contiguous with the 
core population in the Santa Ana wash, but also containing the physical 
and biological features necessary for the long-term conservation of 
this subspecies. Upon receiving comments from the public about Mill 
Creek, we reevaluated our data in this area. Evidence of extensive 
burrowing activity observed by Service biologists indicates this area 
is occupied by kangaroo rats, and live-trapping confirms that Mill 
Creek is occupied by the San Bernardino kangaroo rat subspecies. We 
agree that the reach of Mill Creek occupied by the San Bernardino 
kangaroo rat to its confluence with the Santa Ana River is important to 
the recovery of the subspecies as it is the only large stretch of 
contiguous, occupied habitat for the San Bernardino kangaroo rat within 
Unit 1 that is not fragmented by development (e.g., roads, aggregate 
mining pits). Further, we agree that the habitat at Mill Creek is 
connected to and contiguous with habitat supporting the core population 
in Unit 1, and therefore, San Bernardino kangaroo rats inhabiting Mill 
Creek are part of the Santa Ana River wash core population.
    We also received comments about the importance of Mill Creek as a 
source of sediment through natural fluvial dynamics to the majority of 
the Santa Ana River wash (Unit 1). Existing infrastructure (e.g., 
levees, culverts, concrete-lined channels, bridge abutments and other 
fill) affects the function of the Santa Ana River and its tributaries 
within the historic and current range of this subspecies. As a result, 
the historic flood plain dynamics within the upper Santa Ana River 
watershed have been permanently altered (MEC 2000, pp. 175-176). 
Periodic flooding provides natural scour and sediment deposition, 
decreases vegetation density and cover, and naturally maintains the 
alluvial sage scrub that supports this subspecies. Mill Creek is the 
only remaining source of alluvial sediments remaining within Unit 1 
that has not been significantly altered by flood control structures, 
water diversions, or other activities. Although the Santa Ana River is 
incised just downstream from its confluence with Mill Creek, the flood 
plain elevations downstream (e.g., downstream of Opal Street in 
Mentone) allow overbank scour and sediment deposition during even 
small-to moderate-intensity storms. The periodic deposition of 
sediments from Mill Creek helps to naturally maintain the soil and 
alluvial fan sage scrub (i.e., the PCEs upon which the survival and 
recovery of the San Bernardino kangaroo rat in Unit 1 depend) within 
critical habitat along the Santa Ana River as suitable habitat to 
support the core population of San Bernardino kangaroo rats within this 
unit. Because of the importance of Mill Creek, we are proposing to 
include 388 ac (157 ha) of Mill Creek in the revision to critical 
habitat for proposed Unit 1. This area is currently designated as 
critical habitat as part of Unit 1 (see 50 CFR 17.95(a); 67 FR 19812, 
April 23, 2002).

Plunge Creek

    Plunge Creek is located north of the main stem of the Santa Ana 
River in Unit 1 and is largely isolated from the core population of San 
Bernardino kangaroo rats in the wash by sand and gravel mining 
operations. A portion of Plunge Creek was included in the June 19, 
2007, proposed revision to critical habitat, but no critical habitat 
connection between this area of Plunge Creek and other portions of 
proposed Unit 1 was included in the proposal. We did not propose 
revised critical habitat connecting Plunge Creek to other critical 
habitat areas in proposed Unit 1 because, although lands in this area 
are managed by the Bureau of Land Management (BLM), the BLM is 
considering the revision of their South Coast Resource Management Plan 
and an exchange of land within their existing Area of Critical 
Environmental Concern (ACEC) for lands that are privately owned within 
the Santa Ana River wash. Should this exchange occur, we anticipate 
that the Upper Santa Ana River Habitat Conservation Plan (USAR HCP, 
also known as ``Plan B'') would put forward. The land exchange would be 
done to facilitate aggregate mining, water conservation, roadway 
improvements, and other activities in areas that are now within the 
ACEC, while other, less-disturbed habitat areas for the San Bernardino 
kangaroo rat would be conserved through the implementation of the USAR 
HCP. Although we have been working with the BLM and associated 
stakeholders on the land exchange for many years, we have not yet been 
asked by the BLM to formally consult with them on this

[[Page 20586]]

action. However, during collaboration with the BLM and stakeholders in 
the USAR HCP, we had considered areas where future mining may be 
proposed, and determined in our June 19, 2007, proposed revision to 
critical habitat that these areas should not be included in the 
proposed revision at that time.
    We received significant comment from the public highlighting the 
importance of Plunge Creek to the conservation of the San Bernardino 
kangaroo rat. Commenters were concerned that proposed revision to 
critical habitat around Plunge Creek (which is north of existing and 
proposed mining pits) did not connect to critical habitat in the Santa 
Ana River mainstem south of these pits. Plunge Creek is extensively 
modified upstream of Greenspot Road by levees and the bridge crossing 
the creek on Greenspot Road, and the creek at Orange Street is 
completely channelized and diverted from its historic connection with 
the Santa Ana River. However, significant sediment deposition occurs 
immediately downstream of the Greenspot Road bridge and provides for 
habitat renewal in portions of the adjacent Woolly-Star Preserve Area 
and the reach of Plunge Creek from Greenspot Road to its diversion at 
Orange Street. This area of relatively undisturbed alluvial scrub is 
known to be occupied by the San Bernardino kangaroo rat. Commenters, 
including biologists familiar with the San Bernardino kangaroo rat, 
stated that it is important for the persistence of the subspecies in 
Unit 1 that the demographic and genetic connectivity of populations in 
Plunge Creek and the Santa Ana wash be conserved. We agree that without 
a habitat connection in Unit 1 to provide for demographic and genetic 
exchange between San Bernardino kangaroo rats in Plunge Creek and the 
main stem area, the population of San Bernardino kangaroo rat in Plunge 
Creek is at risk of local extirpation. Due to the importance of Plunge 
Creek and connectivity to the remainder of the unit, we are now 
proposing to include approximately 265 ac (107 ha) of habitat that was 
occupied at the time of listing and currently occupied in proposed Unit 
1. This additional area, which contains the physical and biological 
features essential to the conservation of the subspecies, would allow 
for connectivity of Plunge Creek and the core population in the Santa 
Ana River wash. This area is currently designated as critical habitat 
as part of Unit 1 (see 50 CFR 17.95(a); 67 FR 19812, April 23, 2002).

Cable Creek Wash

    The Cable Creek wash is located northeast of the Lytle/Cajon Creek 
wash (within current Unit 2) on the opposite side of Interstate 215 (I-
215). This wash, although occupied, is isolated from proposed Unit 2 by 
I-215, flood control structures, and other development. Cable Creek is 
channelized where it approaches the freeway. The concrete channel 
eventually crosses underneath the I-215 to flow into the Lytle/Cajon 
wash, but the channel precludes the movement of individual San 
Bernardino kangaroo rats between these areas. Hence, any genetic or 
demographic connection between San Bernardino kangaroo rats in Cable 
Creek wash and the Lytle/Cajon wash is likely minimal to non-existent. 
We did not propose the Cable Creek wash in the June 19, 2007, proposed 
revision to critical habitat because of the disconnect between this 
population at Cable Creek and the larger population of San Bernardino 
kangaroo rats at Lytle/Cajon Creek.
    During the comment periods for the San Bernardino kangaroo rat 
proposed critical habitat revision, we received significant comment 
from the public about Cable Creek wash. Commenters stated that this 
wash contains the essential physical and biological features, and 
retains fluvial dynamics, and is one of the few areas of occupied San 
Bernardino kangaroo rat habitat within the remaining range of the 
subspecies. Further, this area appears to be large enough to support a 
population of San Bernardino kangaroo rats indefinitely, despite its 
disconnection from the core population in the Lytle/Cajon Creek wash. 
We agree that Cable Creek contains quality San Bernardino kangaroo rat 
habitat and the repeated positive survey results suggest this area 
supports a population of this subspecies. We also received comments 
suggesting that this area could be important for the long-term 
conservation of this subspecies in the future if population levels in 
the core area of the Lytle/Cajon wash were to decrease due to 
catastrophic events. The demographic isolation of Cable Creek from 
Lytle/Cajon Creek occurred relatively recently on an evolutionary time 
scale, and therefore, we agree that the Cable Creek wash population 
could be utilized to augment recovery of the Lytle/Cajon wash 
population. Based on these comments, we revised our criteria 
identifying critical habitat to include areas disconnected from core 
population areas that we determine may be important for the long-term 
conservation of the subspecies, and we are proposing to include 
approximately 483 ac (195 ha) of land in the Cable Creek wash in a new 
critical habitat Unit 4. This area is currently designated as critical 
habitat as part of Unit 2 (see 50 CFR 17.95(a); 67 FR 19812, April 23, 
2002).

Bautista Creek

    Bautista Creek drains into the San Jacinto River wash from the 
south, flowing into the area supporting the core population of San 
Bernardino kangaroo rats within the San Jacinto River (proposed Unit 
3). Bautista Creek has been channelized approximately 2 miles (3.2 
kilometers) downstream of the San Bernardino National Forest boundary 
and now flows for several miles through a 4-sided concrete box channel 
to its confluence with San Jacinto Creek. This steep-sided channel 
effectively isolates San Bernardino kangaroo rats in Bautista Creek 
from those in San Jacinto Creek. Minimal genetic connectivity may exist 
between the Bautista Creek and San Jacinto River populations by way of 
highly disturbed, upland agricultural fields along the length of the 
concrete channel (if those agricultural areas are occupied at some low 
level by the subspecies). Demographic connectivity of the two 
populations through these highly disturbed agricultural areas is 
unlikely. Although unlikely, an occasional individual may survive being 
washed downstream through the channel during a high flow event, but 
such an event is likely so rare as to be relatively meaningless to the 
population in terms of demographic or genetic exchange between 
individual animals in Bautista and San Jacinto creeks. It is also 
unlikely that San Bernardino kangaroo rats could successfully migrate 
from the San Jacinto upstream through the concrete channel to the 
Bautista Creek area. Because of this, we did not include Bautista Creek 
in the June 19, 2007, proposed revision to critical habitat.
    We received significant comment during the public comment periods 
about the unchannelized reaches of Bautista Creek that were designated 
in the April 23, 2002, final rule as critical habitat (67 FR 19812). 
These comments focused on the unimpeded fluvial dynamics that maintain 
existing physical and biological features and occupancy by the San 
Bernardino kangaroo rat in this area. It was noted that given the 
extent and quality of habitat in this area of Bautista Creek, the 
population of San Bernardino kangaroo rats in Bautista Creek is likely 
self-sustaining in the long-term despite the lack of habitat 
connectivity with the San Jacinto River wash. We agree that the 
unchannelized portion of Bautista Creek

[[Page 20587]]

is occupied as documented through live-trapping results, and that this 
area retains fluvial dynamics maintaining the physical and biological 
features required by the San Bernardino kangaroo rat. We also received 
comments suggesting the Bautista Creek population is important for the 
long-term conservation of the San Bernardino kangaroo rat, as it 
provides a safeguard against population declines and local extinction 
in the San Jacinto unit (proposed Unit 3). The demographic isolation of 
Bautista Creek from the San Jacinto River occurred relatively recently 
on an evolutionary time scale, and therefore, we agree that the 
Bautista Creek population could be utilized to augment recovery of the 
San Jacinto River wash population. The comments we received also 
highlighted the importance of conserving the Bautista Creek area as it 
represents the southernmost extent of the range for San Bernardino 
kangaroo rat. Based in part on these comments, we revised our criteria 
identifying critical habitat to include disconnected areas that we 
determine are important for the long-term conservation of the 
subspecies, and we are proposing to include approximately 443 ac (180 
ha) of land in Bautista Creek in a new proposed Unit 5. This area is 
currently designated as critical habitat as part of Unit 3 (see 50 CFR 
17.95(a); 67 FR 19812, April 23, 2002).
    In total, we are adding approximately 1,579 ac (638 ha) of Federal 
and private land to the June 19, 2007, proposed revision to critical 
habitat for the San Bernardino kangaroo rat (Table 1). These proposed 
areas are not analyzed in the DEA that is now out for public review, 
but will be analyzed in an addendum and, if designated, will be 
addressed in the final economic analysis.

 Table 1.--Land Ownership, Areas Proposed as Revised Critical Habitat in the June 19, 2007 Proposed Rule (72 FR
33808), Additional Areas Proposed in This Document, Areas Proposed for Exclusion From the Final Critical Habitat
                                  Designation Under Section 4(b)(2) of the Act
           [Area estimates reflect all land within revised proposed critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                                                 Areas proposed
                                                         Proposed critical     Additions to      for exclusion
     Critical habitat unit           Land ownership        habitat (72 FR   proposed critical    under section
                                                               33808)            habitat         4(b)(2) of the
                                                                                                      act
----------------------------------------------------------------------------------------------------------------
1. Santa Ana River Wash, San     BLM \1\...............          559 (226)           184 (74)            00 (00)
 Bernardino County.              Local \2\.............          268 (109)            00 (00)          268 (109)
                                 Private...............      2,797 (1,132)          469 (190)          742 (300)
                                                        --------------------------------------------------------
    Subtotal...................  ......................      3,624 (1,467)          653 (264)        1,010 (409)
                                                        ========================================================
2. Lytle/Cajon Creek Wash, San   USFS \3\..............            89 (36)            00 (00)            00 (00)
 Bernardino County.              Private...............      4,597 (1,860)            00 (00)        1,271 (514)
                                                        --------------------------------------------------------
    Subtotal...................  ......................      4,686 (1,896)            00 (00)        1,271 (514)
                                                        ========================================================
3. San Jacinto River Wash,       Water District \4\....          506 (205)            00 (00)            00 (00)
 Riverside County.               Local Flood \5\.......            94 (38)            00 (00)            94 (38)
                                 Private...............           169 (68)            00 (00)           169 (68)
                                                        --------------------------------------------------------
    Subtotal...................  ......................          769 (311)            00 (00)          263 (106)
                                                        ========================================================
4. Cable Creek Wash, San         Private...............            00 (00)          483 (195)            00 (00)
 Bernardino County.
                                                        --------------------------------------------------------
    Subtotal...................  ......................            00 (00)          483 (195)            00 (00)
                                                        ========================================================
5. Bautista Creek, Riverside     USFS \3\..............            00 (00)            73 (30)            00 (00)
 County.                         USFS Inholding........            00 (00)            38 (15)            00 (00)
                                 Local Flood \5\.......            00 (00)              4 (2)            00 (00)
                                 Private...............            00 (00)          328 (133)            00 (00)
                                                        --------------------------------------------------------
    Subtotal...................  ......................            00 (00)          443 (180)            00 (00)
                                                        --------------------------------------------------------
        Total..................  ......................      9,079 (3,674)        1,579 (638)      2,544 (1,029)
----------------------------------------------------------------------------------------------------------------
\1\ BLM = Bureau of Land Management.
\2\ Local = Local Reuse Authority.
\3\ USFS = U.S. Forest Service.
\4\ Water District = Eastern Municipal Water District and Lake Hemet Municipal Water District.
\5\ Local Flood = Riverside County Flood Control.

Revised Unit Descriptions

    Below, we present a revised unit description for San Bernardino 
kangaroo rat proposed critical habitat Unit 1, which replaces the unit 
description presented in the June 19, 2007, proposed rule (72 FR 
33808). We also present unit descriptions for newly proposed Units 4 
and 5. The unit descriptions for proposed Units 2 and 3 presented in 
the June 19, 2007, proposed rule remain unchanged.

Unit 1: Santa Ana River Wash

    Unit 1 consists of approximately 4,277 ac (1,731 ha) and is located 
in San Bernardino County. This unit includes the Santa Ana River and 
portions of City, Plunge, and Mill Creeks. The area includes lands 
within the cities of San Bernardino, Redlands, and Highland. Although 
Seven Oaks Dam (northeast of Unit 1) impedes sediment transport and 
reduces the magnitude, frequency, and extent of flood events from the 
Santa Ana River, the system still retains partial fluvial dynamics 
because Mill Creek is not impeded by a dam or debris

[[Page 20588]]

basin. This proposed critical habitat unit was occupied at the time of 
listing, is currently occupied, and contains all of the PCEs (PCEs 1, 
2, and 3) in the appropriate quantity and spatial arrangement essential 
for the conservation of the subspecies. Additionally, this unit 
contains the highest densities of San Bernardino kangaroo rat in the 
Santa Ana wash. The physical and biological features contained within 
this unit may require special management considerations or protection 
to minimize impacts associated with flood control operations, water 
conservation projects, sand and gravel mining, and urban development.
    Approximately 742 ac (300 ha) of Unit 1 occurs within the Woolly-
Star Preserve Area (WSPA), a section of the flood plain downstream of 
Seven Oaks Dam that was preserved by the flood control districts of 
Orange, Riverside, and San Bernardino Counties. The WSPA was 
established in 1988 by the U.S. Army Corps of Engineers (ACOE) to 
minimize the effects of Seven Oaks Dam on the federally endangered 
plant, Eriastrum densifolium ssp. sanctorum (Santa Ana River woolly-
star). This area of alluvial fan scrub in the wash near the low-flow 
channel of the river was designated for preservation because these 
sections of the wash were thought to have the highest potential to 
maintain the hydrology necessary for the periodic regeneration of early 
phases of alluvial fan sage scrub. A 1993 Management Plan for the Santa 
Ana River WSPA has been completed, and a draft multi-species habitat 
management plan (MSHMP) for WSPA lands, which includes protection for 
the San Bernardino kangaroo rat, is to be completed as an additional 
conservation measure pursuant to our December 19, 2002, biological 
opinion on operations for Seven Oaks Dam (Service 2002b, p. 8). As a 
result, we are proposing to exclude approximately 742 ac (300 ha) of 
WSPA lands that fall within the proposed revision to critical habitat 
from the final revised critical habitat designation based on the 
benefits to the subspecies provided by these plans (see the Exclusions 
Under section 4(b)(2) of the Act section of the June 19, 2007, proposed 
rule (72 FR 33808) for a detailed discussion).
    In 1994, the BLM designated three parcels in the Santa Ana River, a 
total of approximately 760 ac (305 ha), as an Area of Critical 
Environmental Concern (ACEC). One parcel is located south of the Seven 
Oaks barrow pit, another is farther west and south of Plunge Creek, and 
the third is located farther west between two large mining pits. The 
primary goal of this ACEC designation is to protect and enhance the 
habitat of federally listed plant species occurring in the area while 
providing for the administration of valid existing water conservation 
rights. Although the establishment of this ACEC is important in regard 
to conservation of sensitive species and communities in this area, the 
administration of existing water-conservation rights conflicts with the 
BLM's ability to manage their lands for the San Bernardino kangaroo 
rat. Existing rights include a withdrawal of Federal lands for water 
conservation through an act of Congress on February 20, 1909 (Pub. L. 
248, 60th Cong., 2nd sess.). The entire ACEC is included in this 
withdrawn land and may be used for water conservation measures such as 
the construction of percolation basins. Although the BLM is 
coordinating with the Service to conserve San Bernardino kangaroo rat 
habitat, at this time we do not consider these lands to be managed for 
the benefit of the San Bernardino kangaroo rat or the physical and 
biological features essential to the conservation of the species. We 
are not proposing to exclude these lands from the final revised 
critical habitat designation.
    We are currently coordinating with the BLM, ACOE, San Bernardino 
Valley Conservation District, Cemex Construction Materials, Robertson's 
Ready Mix, and other local interests on a proposed exchange of Federal 
and private lands and the development of the USAR HCP. The goal of the 
USAR HCP is to consolidate a large block of alluvial fan scrub occupied 
by three federally endangered species (the San Bernardino kangaroo rat, 
Eriastrum densifolium ssp. sanctorum, and Dodecahema leptoceras 
(slender-horned spineflower)) and one federally threatened species (the 
coastal California gnatcatcher (Polioptila californica californica)). 
The area under consideration includes the majority of the Santa Ana 
wash from just downstream of the confluence of Mill Creek with the 
Santa Ana River to Alabama Street. While the goal of this effort is to 
benefit the San Bernardino kangaroo rat through the establishment of 
preserve lands that will be managed for this subspecies and other 
listed species, we are still in the development phase of this HCP. We 
are not proposing to exclude any lands within the proposed Santa Ana 
River Wash Conservation Area from the final revised critical habitat 
designation.
    Approximately 268 ac (109 ha) of occupied habitat in the Santa Ana 
River wash has been set aside for conservation in perpetuity by the 
U.S. Air Force as part of on-base site remediation efforts at the 
former Norton Air Force Base (AFB) in San Bernardino, California. These 
areas are managed specifically for the San Bernardino kangaroo rat and 
Eriastrum densifolium spp. sanctorum pursuant to the Former Norton Air 
Force Base Conservation Management Plan (CMP) completed in March 2002. 
We are proposing to exclude these 268 ac (109 ha) from the final 
revised critical habitat designation based on benefits provided to San 
Bernardino kangaroo rat habitat under the CMP (see Proposed Rule (72 FR 
33808), Exclusions Under section 4(b)(2) of the Act section for a 
detailed discussion).

Unit 4: Cable Creek Wash

    Unit 4 consists of approximately 483 ac (195 ha) and is located in 
San Bernardino County. This unit encompasses the Cable Creek alluvial 
flood plain from the mouth of Cable Canyon to Interstate 215 (I-215) 
where the creek becomes channelized. Because Cable Creek is not impeded 
by a dam or debris basin, the fluvial dynamics necessary to maintain 
the PCEs of San Bernardino kangaroo rat critical habitat remain in this 
unchannelized portion of Cable Creek. This proposed critical habitat 
unit was occupied at the time of listing, is currently occupied, and 
contains all of the PCEs (PCEs 1, 2, and 3) in the appropriate quantity 
and spatial arrangement essential for the conservation of the 
subspecies. Additionally, this unit contains a likely self-sustaining 
population of San Bernardino kangaroo rats that may be important for 
the long-term conservation of the subspecies. This unit is 
demographically isolated from the core population of the subspecies in 
the Lytle/Cajon wash (proposed Unit 2). A stochastic event causing 
dramatic population decline or local extinction in proposed Unit 2 may 
have little effect on proposed Unit 4. In such a case, the population 
in proposed Unit 4 could serve as a source of individuals for 
repopulating proposed Unit 2. The physical and biological features 
contained within this unit may require special management 
considerations or protection to minimize impacts associated with flood 
control operations, water conservation projects, sand and gravel 
mining, and urban development.

Unit 5: Bautista Creek

    Unit 5 consists of approximately 443 ac (180 ha) and is located in 
Riverside County. This unit includes known occupied habitat from the 
unchannelized reach of Bautista Creek (i.e., from the existing instream 
mining

[[Page 20589]]

operation to upstream areas where the grade of the creek precludes the 
formation of alluvial terraces or braids). This unit represents the 
southernmost extent of the San Bernardino kangaroo rat's current range. 
The wash system in upper Bautista Creek still retains fluvial dynamics 
because it is not impeded by a dam, debris basin, or concrete 
channelization. This proposed critical habitat unit was occupied at the 
time of listing, is currently occupied, and contains all of the PCEs 
(PCEs 1, 2, and 3) in the appropriate quantity and spatial arrangement 
essential for the conservation of the species. This unit contains 
agricultural areas that could be occupied at low densities by this 
subspecies (PCE 3). Additionally, this unit contains a likely self-
sustaining population of San Bernardino kangaroo rats that may be 
important for the long-term conservation of the subspecies. This unit 
is demographically isolated from the core population of the subspecies 
in the San Jacinto Wash (proposed Unit 3). Given the current status of 
the San Bernardino kangaroo rat and degradation in areas currently 
designated as critical habitat that we are not proposing as revised 
critical habitat, it is important for the conservation of the San 
Bernardino kangaroo rat that natural fluvial processes in occupied 
habitat are maintained. A stochastic event could cause a dramatic 
population decline or local extinction in either proposed Unit 3 or 
Unit 5. In such a case, through relocation for the purposes of 
recovery, the population in proposed Unit 5 could serve as a source of 
individuals for repopulating proposed Unit 3, and vice versa. The 
physical and biological features contained within this unit may require 
special management considerations or protection to minimize impacts 
associated with agricultural activities, sand and gravel mining, and 
urban development.

Required Determinations--Amended

    In our June 19, 2007, proposed rule (72 FR 33808), we indicated 
that we would defer our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have now 
made use of the DEA to make these determinations. In this document, we 
affirm the information in our proposed rule concerning Executive Order 
(E.O.) 13132, E.O. 12988, the Paperwork Reduction Act, and the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951). 
However, based on the DEA data, we revise our required determinations 
concerning E.O. 12866 and the Regulatory Flexibility Act, E.O. 13211 
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform 
Act, and E.O. 12630 (Takings).

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant and has not reviewed this proposed 
rule under Executive Order 12866 (E.O. 12866). OMB bases its 
determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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 (5 
U.S.C. 802(2)), 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. SBREFA amended RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that 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 
DEA of the proposed designation so that we would have the factual basis 
for our determination.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and 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 revision of critical habitat for the 
San Bernardino kangaroo rat would affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities, such as residential and 
commercial development. We apply the ``substantial number'' test 
individually to each industry to determine if certification is 
appropriate. However, the SBREFA does not explicitly define 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating th