Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sonoma County Distinct Population Segment of the California Tiger Salamander (Ambystoma californiense), 2863-2871 [2011-843]
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Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Proposed Rules
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Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2009–0044; MO
92210–0–0009]
RIN 1018–AW86
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Sonoma County Distinct
Population Segment of the California
Tiger Salamander (Ambystoma
californiense)
Fish and Wildlife Service,
Interior.
ACTION: Revised proposed rule;
reopening of comment period.
AGENCY:
Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this
proposed rule does not involve special
consideration of environmental justicerelated issues as required by Executive
Order 12898, Federal Actions to
Address Environmental Justice in
Minority Populations and Low-Income
Populations (59 FR 7629, February 16,
1994), because it does not change any
regulatory requirements, it merely
corrects and clarifies existing
requirements.
Dated: January 10, 2011.
Lisa P. Jackson,
Administrator.
DEPARTMENT OF THE INTERIOR
We, the U.S. Fish and
Wildlife Service, announce the
reopening of the comment period on our
August 18, 2009, proposed designation
of critical habitat for the Sonoma
County Distinct Population Segment of
the California tiger salamander
(Ambystoma californiense) under the
Endangered Species Act of 1973, as
amended. We also announce revisions
to the proposed critical habitat unit, as
it was described in the proposed rule
published in the Federal Register on
August 18, 2009 (74 FR 41662), and
announce the availability of the draft
economic analysis for the revised
proposed critical habitat designation
and an amended required
determinations section of the proposal.
We are reopening the comment period
for an additional 30 days to allow all
interested parties an opportunity to
comment simultaneously on the revised
proposed critical habitat, the associated
draft economic analysis, and the
amended required determinations
section. Comments previously
submitted need not be resubmitted and
will be fully considered in preparation
of the final rule.
DATES: We will consider public
comments received on or before
February 17, 2011. Comments must be
received by 11:59 p.m. Eastern Time on
the closing date. Any comments that we
receive after the closing date may not be
considered in the final decision on this
action.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments to
Docket No. FWS–R8–ES–2009–0044.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R8–
ES–2009–0044; Division of Policy and
SUMMARY:
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Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all comments on https://
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:
Susan Moore, Field Supervisor, or
Karen Leyse, Listing Coordinator, U.S.
Fish and Wildlife Service, Sacramento
Fish and Wildlife Office, 2800 Cottage
Way, Room W–2605, Sacramento, CA
95825; telephone 916–414–6600;
facsimile 916–414–6713. Persons who
use a telecommunications device for the
deaf (TDD) may call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action
resulting from this revised proposed
rule will be based on the best scientific
data available and will be as accurate
and as effective as possible. We will
accept written comments and
information during this reopened
comment period on our amended
proposed designation of critical habitat
for the Sonoma County Distinct
Population Segment of the California
tiger salamander that was published in
the Federal Register on August 18, 2009
(74 FR 41662), our draft economic
analysis (DEA) of the proposed
designation, and the amended required
determinations provided in this
document. We will consider
information and recommendations from
all interested parties.
Therefore, during this reopened
comment period we request comments
or information from the public, other
concerned government agencies, the
scientific community, industry, or other
interested party on: (1) The proposed
rule to designate critical habitat for the
Sonoma County Distinct Population
Segment (DPS) of the California tiger
salamander that was published in the
Federal Register on August 18, 2009 (74
FR 41662), the revisions to proposed
critical habitat described herein (see
Revisions to Proposed Critical Habitat
section), and the DEA of the revised
proposed designation; (2) the
considered exclusion of critical habitat;
and (3) the amended Required
Determinations section provided in this
document. We are particularly
interested in comments concerning:
(1) The proposed critical habitat
designation (which comprises a single
critical habitat unit), as revised in this
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notice (see the Revisions to Proposed
Critical Habitat section, below).
(2) The reasons we should or should
not designate the revised proposed
habitat as ‘‘critical habitat’’ under
section 4 of the Endangered Species Act
of 1973, as amended (Act; 16 U.S.C.
1531 et seq.), including whether there
are threats to the species from human
activity, the degree to which such
threats can be expected to increase due
to designation, and whether that
increase in threat outweighs the benefit
of designation such that the designation
of critical habitat is not prudent.
(3) Specific information on:
(a) The amount and distribution of
California tiger salamander habitat,
including areas that provide habitat for
the Sonoma County DPS of the
California tiger salamander that we did
not discuss in this revised proposed
critical habitat rule;
(b) Areas within the geographical area
occupied by the species at the time of
listing that contain the physical and
biological features essential to the
conservation of the species which may
require special management
considerations or protection, that we
should include in the designation and
reason(s) why (see Primary Constituent
Elements (PCEs) section of the revised
proposed rule for further discussion);
and
(c) Areas outside the geographical
area occupied by the species at the time
of listing that are essential for the
conservation of the species, why the
areas are essential, and whether they
should be included in the designation.
(4) Additional information concerning
the range, distribution, and population
size of this species, including the
locations of any additional populations
of the Sonoma County DPS of the
California tiger salamander that would
help us further refine the boundaries of
critical habitat.
(5) Information that may assist us in
clarifying the primary constituent
elements.
(6) Land-use designations and current
or planned activities in the area
proposed as critical habitat, as well as
their possible effects on the revised
proposed critical habitat.
(7) How the revised proposed critical
habitat boundaries could be refined to
more closely circumscribe the areas
identified as containing the features
essential to the species’ conservation. In
particular, we are interested in specific
information on the southeasterly portion
of the revised critical habitat that is east
of Petaluma Hill Road and south of
Martinez Drive, and that is delineated as
a ‘‘no effect’’ area in Enclosure 1
(California Department of Fish and
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Game 2008) of the ‘‘Programmatic
Biological Opinion for the U.S. Army
Corps of Engineers Permitted Projects
that May Affect California Tiger
Salamander and Three Endangered
Plant Species on the Santa Rosa Plain,
California’’ (Corps File Number
223420N) (Service 2007). To date, there
have been no known detections of the
salamander in this area. However,
satellite imagery of the area suggests
that PCEs are present within the area. In
addition, the area is contiguous with
other portions of the revised proposed
critical habitat where breeding
salamanders have been located since the
development of the Santa Rosa Plain
Conservation Strategy (Conservation
Strategy).
(8) Any probable economic, national
security, or other impacts of designating
particular areas as critical habitat, and,
in particular, any impacts on small
entities (e.g., small businesses or small
governments), and the benefits of
including or excluding areas that exhibit
these impacts.
(9) Whether any specific areas being
proposed as critical habitat should be
excluded under section 4(b)(2) of the
Act, and whether the benefits of
potentially excluding any particular
area outweigh the benefits of including
that area under section 4(b)(2) of the
Act. See the Areas Previously
Considered For Exclusion Under
Section 4(b)(2) of the Act section below
and the Exclusions section of the
proposed rule (74 FR 41662; August 18,
2009) for further discussion.
(10) Information on any Tribal lands
that occur in areas being proposed as
critical habitat, including whether these
lands are held in fee or trust.
(11) Whether we could improve or
modify our approach to designating
critical habitat in any way to provide for
greater public participation and
understanding or to better accommodate
public concerns and comments.
(12) Information on any quantifiable
economic costs or benefits of the
proposed designation of critical habitat.
(13) Information on the extent to
which the description of potential
economic impacts in the DEA is
complete and accurate.
If you submitted comments or
information on the proposed rule (74 FR
41662; August 18, 2009) during the
initial comment period from August 18,
2009, to October 19, 2009, please do not
resubmit them. These comments are
included in the public record for this
rulemaking and we will fully consider
them in the preparation of our final
determination. Our final determination
concerning the designation of critical
habitat for the Sonoma County DPS of
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the California tiger salamander will take
into consideration all written comments
and any additional information we
receive during both comment periods.
On the basis of public comments, we
may, during the development of our
final determination, find that areas
within the proposed critical habitat
designation do not meet the definition
of critical habitat, that some
modifications to the described
boundaries are appropriate, or that areas
may or may not be appropriate for
exclusion under section 4(b)(2) of the
Act.
You may submit your comments and
materials concerning this revised
proposed rule, the DEA associated with
this revised proposed critical habitat
designation, and the amended required
determinations by one of the methods
listed in the ADDRESSES section.
If you submit a comment via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the Web site. If your submission is
made via a hard copy that includes
personal identifying information, 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.
We will post all hard copy comments on
https://www.regulations.gov. Please
include sufficient information with your
comments to allow us to verify any
scientific or commercial information
you include.
Comments and materials we receive,
as well as supporting documentation
used to prepare this notice, will be
available for public inspection at
https://www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service (Service), Sacramento Fish and
Wildlife Office (see the FOR FURTHER
INFORMATION CONTACT section). You may
obtain copies of the proposed
designation of critical habitat (74 FR
41662) and the DEA on the Internet at
https://www.regulations.gov at Docket
No. FWS–R8–ES–2009–0044, or by mail
from the Sacramento Fish and Wildlife
Office (see the FOR FURTHER INFORMATION
CONTACT section).
Background
It is our intent to discuss only those
topics directly relevant to the
designation of critical habitat in this
revised proposed rule. Information on
the taxonomy, distribution, life history,
biology, and other information about the
California tiger salamander is included
in the Background section of the final
rule to list the California tiger
salamander as a threatened species,
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published in the Federal Register on
August 4, 2004 (69 FR 47212).
Additional relevant information may be
found in the final rules to list the Santa
Barbara County DPS (65 FR 57242;
September 21, 2000) and the Sonoma
County DPS of the California tiger
salamander (68 FR 13498; March 19,
2003); the proposed rules to designate
critical habitat for the California tiger
salamander in Santa Barbara County (69
FR 3064; January 22, 2004) and the
Central population of the species’ range
(69 FR 48570; August 10, 2004); and the
final rules to designate critical habitat
for the California tiger salamander in
Santa Barbara County (69 FR 68568;
November 24, 2004) and the Central
population (70 FR 49380; August 23,
2005). The information contained in the
previous Federal Register documents
was used in developing this revised
proposed rule.
We now propose revisions to the
proposed critical habitat unit for the
Sonoma County DPS of the California
tiger salamander (see Revisions to
Proposed Critical Habitat section);
accordingly, approximately 50,855 acres
(ac) (20,580 hectares (ha)) in Sonoma
County, California, meet the definition
of critical habitat and comprise this
single revised proposed critical habitat
unit.
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Previous Federal Actions
On August 4, 2004, we listed the
Central California population of the
California tiger salamander as a
threatened DPS (69 FR 47211). At that
time, we reclassified the California tiger
salamander as threatened throughout its
range, removing the Santa Barbara
County and Sonoma County
populations as separately listed DPSs
(69 FR 47241).
On August 18, 2005, as a result of
litigation regarding the August 4, 2004,
final rule (69 FR 47211) on the
reclassification of the California tiger
salamander DPSs (Center for Biological
Diversity et al. v. United States Fish and
Wildlife Service et al. (Case No. C–04–
4324–WHA (N.D. Cal. 2005))), the
District Court of Northern California
sustained the portion of the 2004 final
rule pertaining to listing the Central
California tiger salamander as
threatened, with a special rule, and
vacated the 2004 rule with regard to the
Santa Barbara County and Sonoma
County DPSs, reinstating their prior
listing as endangered. We are making
the necessary changes to the
information included in the Code of
Federal Regulations in the regulatory
section of this rule, and we will finalize
the changes in the final critical habitat
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for the Sonoma County DPS of the
California tiger salamander.
With respect to critical habitat, on
October 13, 2004, a complaint was filed
in the U.S. District Court for the
Northern District of California (Center
for Biological Diversity et al. v. U.S. Fish
and Wildlife Service et al. (Case No. C–
04–4324–FMS (N.D. Cal. 2005))), which
in part challenged the failure of
designating critical habitat for the
California tiger salamander in Sonoma
County. On February 3, 2005, the
District Court approved a settlement
agreement that required the Service to
submit a final determination on the
proposed critical habitat designation for
publication in the Federal Register on
or before December 1, 2005. On August
2, 2005 (70 FR 44301), the Service
published a proposed rule to designate
approximately 74,223 ac (30,037 ha) of
critical habitat, and on November 17,
2005, we published a revised proposed
rule indicating we were considering
approximately 21,298 ac for the final
designation (70 FR 69717). In the 2005
revised proposed rule, we proposed
critical habitat in areas within the range
where, at that time, we had credible
records of breeding, as reported by
biologists that were permitted by the
Service to survey for the salamander. On
December 14, 2005, the Service
published a final rule in the Federal
Register (70 FR 74138), which identified
four subunits of critical habitat,
consisting of 17,418 ac (7,049 ha)
located mostly west of the developed
portions of Santa Rosa, Rohnert Park,
and Cotati, in Sonoma County. Each one
of the subunits represented a breeding
center for the species. In the final rule,
the Service excluded all proposed
critical habitat, resulting in a
designation of zero (0) acres of critical
habitat.
On February 29, 2008, we received a
notice of intent to sue from the Center
for Biological Diversity that challenged
the Service’s final designation of critical
habitat, claiming that it was not based
on the best available scientific
information. On May 5, 2009, the Court
approved a stipulated settlement
agreement where the Service agreed to
publish a revised proposed rule within
90 days that encompassed the same
geographic area as the August 2005
proposal. The proposed rule, published
on August 18, 2009 (74 FR 41662),
complies with the May 5, 2009,
stipulated agreement.
Section 3 of the Act defines critical
habitat as 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 essential
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to the conservation of the species that
may require special management
considerations or protection, and
specific areas outside the geographical
area occupied by the species at the time
it is listed, upon a determination by the
Secretary 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 critical habitat must consult
with us on the effects of their proposed
actions, under section 7(a)(2) of the Act.
Revisions to Proposed Critical Habitat
In this notice, we are revising the
proposed Unit 1 (Santa Rosa Plain Unit),
as described in the August 2, 2005 (70
FR 44301), and August 18, 2009 (74 FR
41662), proposed rules. In the August 2,
2005, proposed critical habitat rule, we
identified the historic and potential
range of the species in Sonoma County,
utilizing historic information and all
known breeding and adult locality data
available at that time. Subsequently, the
November 17, 2005, proposed revised
rule (70 FR 69717) limited the proposed
critical habitat to areas containing
essential physical and biological
features that were located within 0.7
mile (mi) (1.1 kilometers (km)) of known
breeding sites, thereby focusing the
proposed critical habitat designation on
providing sufficient breeding habitat
and upland habitat to maintain and
sustain existing salamanders in
documented breeding sites. The
November 2005 proposed revision did
not include other areas within the Santa
Rosa Plain that contained the essential
physical and biological features. Based
on the May 5, 2009, stipulated
settlement described above, we
published a proposed critical habitat
rule on August 18, 2009 (74 FR 41662),
that encompassed the same geographic
areas as the original August 2, 2005,
proposed rule (70 FR 44301).
The purpose of this revision to the
proposed critical habitat is to better
delineate the areas that contain the
physical or biological features essential
to the conservation of the species and
that meet the definition of critical
habitat for the California tiger
salamander in Sonoma County. In
general, this revision involves adjusting
the boundaries of the proposed critical
habitat Unit 1 to better reflect the
occupied and potential range of the
species as reflected in the Conservation
Strategy mapping criteria (Conservation
Strategy Team 2005a, Appendix E), that
was developed subsequent to the
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August 2, 2005, proposed rule (74 FR
41662). In addition, this revision
considers recent documentation of adult
salamanders with potential breeding
habitat in additional areas within the
proposed critical habitat, including the
areas in the vicinity of Lichau Creek and
Railroad Avenue (WRA Environmental
Consultants 2005, pp. 3–8), and recent
findings of California tiger salamanders
at the Horn wetland mitigation bank
(Monk 2010, pers. com.).
As a result of this revision, the area
proposed for critical habitat in Unit 1 is
50,855 ac (20,580 ha), rather than the
74,223 ac (30,037 ha) identified in the
August 18, 2009, proposed rule. The
revised unit is now bordered on the
west by the generalized eastern
boundary of the 100-year Laguna de
Santa Rosa floodplain, on the south by
Pepper Road (northwest of Petaluma),
on the east by the foothills of the
Sonoma Mountains, and on the north by
Windsor Creek. The northern boundary
of the revised proposed critical habitat
and the non-developed portions of the
eastern boundary remain very close to
the previously proposed boundaries.
Other boundary adjustments are
described below. A small addition to the
southeastern edge of Unit 1 is within the
geographic range occupied by the
species at the time of listing and
contains the physical or biological
features essential to the conservation of
the species. A revised map for the
proposed critical habitat unit in Sonoma
County is included in this notice.
The framers of the Conservation
Strategy generally did not consider areas
within the Federal Emergency
Management Agency (FEMA) 100-year
floodplain as areas suitable to support
salamander breeding because seasonal
pools within the 100-year floodplain are
subject to flooding from perennial
sources (such as the Laguna de Santa
Rosa), and provide a high likelihood of
supporting salamander predators in
pools within the floodplain. In the
Conservation Strategy, periodically
flooded uplands within the 100-year
floodplain may be considered
salamander habitat if located near
predator-free breeding pools
(Conservation Strategy Team 2005a,
Appendix E). Occurrence information
from the California Natural Diversity
Database (CNDDB) (2010) indicates that,
despite intensive focus on the
salamander within the Santa Rosa Plain,
to date no occurrences have been
identified within the 100-year
floodplain. The fact that this species has
not been located within the floodplain
may be due to the lack of suitable
upland habitat within the floodplain
during the wet season (Conservation
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Strategy Team 2005b, Appendix L). The
Service, therefore, has determined that
most of the 100-year floodplain lacks
the physical and biological features and
is not essential for the conservation of
the California tiger salamander.
To revise the proposed critical habitat
boundary along the floodplain, we used
a process that generalizes the floodplain
boundary in order to smooth complex
lines, removing the bulk of the
floodplain from proposed critical
habitat while retaining smaller areas
along the eastern border of the
floodplain. A segment of the 100-year
floodplain that is located between the
Stony Point Conservation Area (near
Wilfred Avenue) and the Northwest
Cotati Conservation Area (near
Nahmens Road) is retained within the
revised proposed critical habitat to
reduce fragmentation of the northern
and southern breeding concentrations
within the unit by allowing for potential
dispersal and genetic exchange. This
retained segment is further bounded by
Llano Road on the west and the western
edge of the urban growth boundary of
Cotati, California (near the northern
terminus of Helman Lane), on the east.
Additionally, this revised proposed
critical habitat unit no longer includes
several areas of small remnant open
parcels that occur between the eastern
periphery of suburban Sebastopol and
the western edge of the 100-year
floodplain. We do not consider these
areas essential for the conservation of
the species because the undeveloped
lands are small in size, are isolated from
each other by development, are isolated
by the 100-year floodplain and the
Laguna de Santa Rosa from breeding
habitat on the eastern side of the
floodplain, are not known to be
occupied, and do not contain the PCEs
in the correct quantity and spatial
arrangement to provide for the
conservation of the species.
This revised proposed critical habitat
designation no longer includes the
urbanized centers of Santa Rosa,
Bennett Valley, Rohnert Park, and
Cotati. These urban centers consist
almost exclusively of hardened,
developed landscapes. The remnant
natural habitat within these areas is
limited to small, isolated parcels within
a matrix of urban development. These
areas have been removed in this revised
proposal because developed areas (lands
covered by buildings, pavement, and
other structures) lack the physical or
biological features essential to the
conservation of the species according to
section 3(5)(A) of the Act. We also do
not consider the remnant natural habitat
within these city centers as essential for
the conservation of the salamander.
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However, areas on the periphery of
urban areas remain within the revised
proposed critical habitat boundary. The
scale of the map we prepared under the
parameters for publication within the
Code of Federal Regulations is not
sufficient to reflect the exclusion of
developed lands, while retaining open
lands that provide the features essential
to the conservation of the species.
Any such developed lands that have
been left inside critical habitat
boundaries shown on the maps of this
revised proposed rule are excluded by
text and are not proposed for
designation as critical habitat because
they either do not contain the physical
or biological features essential to the
species or are not considered essential
for the species. Therefore, when the
critical habitat is finalized, a Federal
action involving these undesignated
lands would not trigger a section 7
consultation, nor, with respect to
critical habitat, would it require an
analysis to determine adverse
modification in these undesignated
areas, unless the specific action would
affect the physical or biological features
essential to the conservation of the
species in the adjacent designated
critical habitat.
In the southernmost region of the
Santa Rosa Plain, the critical habitat
unit boundary has been revised as
follows. In the vicinity of Lichau Creek
and Railroad Avenue, additional acreage
reflects new information on the
presence of salamander breeding within
the area. The area south of Pepper Road,
along both sides of U.S. Highway 101,
is not included in the revised proposed
critical habitat because we do not
currently consider this area to be
essential to the conservation of the
species. This area has been fragmented
by industrial and residential
development and roadways, including
the major north-south interstate
highway, U.S. Highway 101. More than
20 percent of the open land generally
south of Pepper Road and west of U.S.
Highway 101 is delineated as 100-year
floodplain for the Petaluma River. As
discussed above, we generally do not
consider lands within the 100-year
floodplain to contain suitable breeding
habitat for the salamander. Suitable
upland habitat may also be lacking
during the wet season (Conservation
Strategy Team 2005b, Appendix L). The
floodplain fragments the remaining
undeveloped land in this area. Although
there is an anecdotal report from the
1990s of a California tiger salamander
observation along Rainsville Road, we
are not aware of confirmed observations
of the California tiger salamander within
this area.
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Areas Previously Considered for
Exclusion Under Section 4(b)(2) of the
Act
Section 4(b)(2) of the Act requires that
we designate or revise critical habitat
based upon the best scientific 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 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.
When considering the benefits of
inclusion for an area, we consider the
additional regulatory benefits that area
would receive from the protection from
adverse modification or destruction as a
result of actions with a Federal nexus
(activities conducted, funded,
permitted, or authorized by Federal
agencies), the educational benefits of
mapping areas containing essential
features that aid in the recovery of the
listed species, and any benefits that may
result from designation due to State or
Federal laws that may apply to critical
habitat.
When considering the benefits of
exclusion, we consider, among other
things, whether exclusion of a specific
area is likely to result in conservation;
the continuation, strengthening, or
encouragement of partnerships; or
implementation of a management plan.
In the December 14, 2005, final rule
(70 FR 74138), we evaluated those lands
determined to have essential features, in
order to ascertain if any specific areas
were appropriate for exemption or
exclusion from critical habitat under
sections 4(a)(3) and 4(b)(2) of the Act.
On the basis of that evaluation, we
determined that the benefits of
excluding lands under appropriate
management for the Sonoma County
DPS of the California tiger salamander
outweighed the benefits of their
inclusion within critical habitat.
Consequently, we excluded the entire
proposed critical habitat for the Sonoma
County DPS of the California tiger
salamander under section 4(b)(2) of the
Act, based in part on the expectation
that the Conservation Strategy would be
implemented. We determined that the
Conservation Strategy would provide
conservation benefits that would be
superior to a critical habitat designation.
We also determined that critical habitat
designation might hinder the progress of
the Conservation Strategy by
discouraging the involvement of local
jurisdictions and private landowners,
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without providing any
counterbalancing, proactive
conservation benefit. However, at that
time, we acknowledged the potential for
revisiting the critical habitat designation
should changed circumstances occur,
such as unsuccessful finalization or
implementation of the Conservation
Strategy.
The Conservation Strategy
Implementation Plan has not been
developed or implemented by local
agencies during the period since the
publication of the December 14, 2005,
final critical habitat rule (70 FR 74138).
Therefore, at this time, we do not
believe that the Conservation Strategy
provides a sufficient basis for exclusion
of the unit from critical habitat
designation. Any exclusion of critical
habitat based on potential economic
costs will be presented in the final rule.
We are not proposing to exclude any
areas from critical habitat at this time.
In the final rule, we may consider
exclusion of all or some of the Federated
Indians of Graton Rancheria of
California’s 254-ac (103-ha) parcel of
Tribal trust land that currently overlaps
with proposed critical habitat. This
potential exclusion would occur under
section 4(b)(2) of the Act and by taking
into consideration Secretarial Order
3206 involving American Indian Tribal
Rights, Federal–Tribal Trust
Responsibilities, and the Endangered
Species Act. However, the final decision
on whether to exclude any areas will be
based on the best scientific data
available at the time of the final
designation, including information
obtained during the comment period
and information about the economic
impact of designation.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that
we designate critical habitat based upon
the best scientific 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 prepared a DEA (IEC 2010) to
identify and analyze the potential
economic impacts associated with this
revised proposed critical habitat for the
Sonoma County DPS of the California
tiger salamander.
The DEA (made available with the
publication of this notice) estimates the
foreseeable economic impacts of this
revised proposed critical habitat (IEC
2010). The economic analysis presented
in the DEA uses the historical record to
inform its assessment of potential future
impacts of critical habitat. The analysis
forecasts both baseline and incremental
impacts likely to occur after the revised
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proposed rule is finalized. The DEA
identifies economic impacts to the
following activities as a result of the
designation of critical habitat for the
Sonoma County DPS of the California
tiger salamander: (1) Commercial and
residential development, (2)
transportation projects, and (3) utility
and pipeline construction and
maintenance activities. In addition, the
DEA identifies potential economic
impacts to agriculture and mitigation
banks, but concludes that these
activities are not likely to incur
measurable economic impacts due to
the designation of critical habitat. To
provide an understanding of the
potential economic impacts, this
analysis determines the scope and scale
of economic activities within the
revised proposed critical habitat;
identifies threats to California tiger
salamander habitat associated with
these economic activities; identifies
conservation measures that may be
implemented to avoid or minimize these
threats; and to the extent feasible,
quantifies the economic costs of these
measures.
The DEA describes the economic
impacts of all potential conservation
efforts for the Sonoma County DPS of
the California tiger salamander; some of
these costs will likely be incurred
regardless of whether we designate
critical habitat. The economic impact of
the revised proposed critical habitat
designation is analyzed by comparing
scenarios both ‘‘with critical habitat’’
and ‘‘without critical habitat.’’ The
‘‘without critical habitat’’ scenario
represents the baseline for the analysis,
considering protections that are already
in place for the species (such as
protections under the Act and other
Federal, State, and local regulations).
The baseline, therefore, represents the
costs incurred regardless of whether
critical habitat is designated. The ‘‘with
critical habitat’’ scenario describes the
incremental impacts associated
specifically with the designation of
critical habitat for the species. The
incremental conservation efforts and
associated impacts are those not
expected to occur absent the critical
habitat designation for the Sonoma
County DPS of the California tiger
salamander. In other words, the
incremental costs are those attributable
solely to the designation of critical
habitat above and beyond the baseline
costs; these are the costs we may
consider in the final designation of
critical habitat when evaluating the
benefits of excluding particular areas
under section 4(b)(2) of the Act. The
analysis looks retrospectively at
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baseline impacts incurred since the
species was listed, and forecasts both
baseline and incremental impacts likely
to occur if we finalize the revised
proposed critical habitat designation.
For a further description of the
methodology of the analysis, see
Chapter 2, ‘‘Framework for the
Analysis,’’ of the DEA (IEC 2010).
The DEA provides estimated costs of
the foreseeable potential economic
impacts of the proposed critical habitat
designation for the Sonoma County DPS
of the California tiger salamander over
the next 25 years, which was
determined to be the appropriate period
for analysis because limited planning
information is available for most
activities to forecast activity levels for
projects beyond a 25-year timeframe.
The DEA identifies potential
incremental costs as a result of the
proposed critical habitat designation;
these are those costs attributed to
critical habitat over and above those
baseline costs attributed to listing.
The DEA 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 required to
accomplish species and habitat
protection. The DEA 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 DEA
measures lost economic efficiency
associated with residential and
commercial development and public
projects and activities, such as
economic impacts on agriculture and
transportation projects, Federal lands,
small entities, and the energy industry.
Decision-makers can use this
information to assess whether the effects
of the critical habitat designation might
unduly burden a particular group or
economic sector.
Baseline economic impacts are those
impacts that result from listing and
other conservation efforts for the
California tiger salamander. The DEA
quantifies baseline costs due to the
administrative cost of section 7
consultations. Additional baseline
impacts stem from conservation
measures applied to avoid jeopardy and
take of California tiger salamanders as
well as other conservation measures
unrelated to the designation of critical
habitat. Potential baseline impacts to
development stem from two main
sources: (1) Minimization and
mitigation measures applied as part of
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the section 404 permit process pursuant
to the Clean Water Act; and (2)
measures taken to avoid jeopardy of the
California tiger salamander as part of
section 7 consultation. Mitigation
requirements are defined by the Service
in its Programmatic consultation with
the Corps (Service 2007) and are
considered baseline costs.
Approximately 80 percent of future
development projects are expected to
require mitigation. Mitigation credits
sold recently range from $100,000 to
$130,000 per acre in this area.
The DEA revealed that all incremental
impacts stem entirely from the
administrative costs of section 7
consultation on commercial and
residential development projects, and
on transportation and utility activities.
Significant uncertainty exists regarding
whether the Service will require
additional conservation measures
specifically to avoid adverse
modification of critical habitat in future
section 7 consultations, and what such
measures might entail. As a result, the
analysis does not forecast incremental
impacts due to such measures. The DEA
estimates total potential incremental
economic impacts in areas proposed as
critical habitat over the next 25 years
(2011 to 2035) to be approximately
$465,000 ($39,900 annualized) in
present value terms applying a 7 percent
discount rate (IEC 2010, p. ES–4), and
$685,000 ($39,300 annualized) in
present value terms applying a 3 percent
discount rate (IEC 2010, Appendix B).
Impacts associated with section 7
consultations on development projects
total $441,000 ($37,900 annualized),
applying a 7 percent discount rate, and
make up the largest portion of postdesignation incremental impacts,
accounting for 95 percent of the forecast
incremental impacts. Incremental
impacts to transportation represent the
next largest source of incremental
impacts, and total $22,500 (applying a 7
percent discount rate), which represents
5 percent of total incremental impacts.
The present value administrative cost of
impacts associated with utility activities
is $1,290 (applying a 7 percent discount
rate), and represents less than 1 percent
of the overall incremental impacts.
The greatest incremental impacts are
forecast to occur within the Santa Rosa
Urban Growth Boundary (UGB)
($209,000 present value impacts
discounted at 7 percent), and make up
45 percent of the overall incremental
impacts. The second largest incremental
impacts are predicted to occur within
the Windsor UGB, with present value
impacts at $136,000 (applying a 7
percent discount rate) comprising 29
percent of the overall incremental
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impacts. Incremental impacts to
Petaluma, which are forecast to incur
the least amount of incremental
impacts, are estimated at $10,100 of
present value impacts (discounted at 7
percent), and make up 2 percent of the
overall incremental impacts. Only a
small portion of the Petaluma UGB
intersects with the revised proposed
critical habitat. The DEA concerning the
proposed critical habitat designation is
available for review and comment (see
ADDRESSES section).
Required Determinations—Amended
In our proposed rule published in the
Federal Register on August 18, 2009 (74
FR 41662), 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 the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.),
Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O.
13132 (Federalism), E.O. 12988 (Civil
Justice Reform), E.O. 12630 (Takings),
the Paperwork Reduction Act, the
National Environmental Policy 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, we are amending our
required determinations concerning the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.), and E.O. 13211 (Energy Supply,
Distribution, or Use).
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq., as amended
by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) (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), as
described below. 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. Based on our DEA for the
revised proposed critical habitat, we
provide our analysis for determining
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whether the revised proposed
designation would result in a significant
economic impact on a substantial
number of small entities. Based on
comments we receive during the public
comment period, we may revise this
determination as part of a final
rulemaking.
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. Private
developers may be considered small
entities if their annual income is not
greater than $33.5 million. 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 operations.
To determine if the revised proposed
critical habitat for the Sonoma County
DPS of the California tiger salamander
would affect a substantial number of
small entities, we consider the number
of small entities affected by particular
types of economic activities, such as
residential and commercial
development. In order to determine
whether it is appropriate for our agency
to certify that this rule would not have
a significant economic impact on a
substantial number of small entities, we
considered each industry or category
individually. In estimating the numbers
of small entities potentially affected, we
also considered whether their activities
have any Federal involvement. Critical
habitat designation will not affect
activities that do not have any Federal
involvement; designation of critical
habitat only affects activities conducted,
funded, permitted, or authorized by
Federal agencies. In areas where the
Sonoma County DPS of the California
tiger salamander is present, Federal
agencies already are required to consult
with us under section 7 of the Act on
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activities they fund, permit, or
implement that may affect the species.
Additionally, even in the absence of a
Federal nexus, indirect incremental
impacts may result if, for example, a
city requests project modifications via
the city’s review under the California
Environmental Quality Act (CEQA), due
to the designation of critical habitat. If
we finalize this proposed critical habitat
designation, consultations to avoid the
destruction or adverse modification of
critical habitat would be incorporated
into the existing consultation process on
the Sonoma County DPS of the
California tiger salamander, because it is
listed as endangered under the Act.
In the DEA, we evaluate the potential
economic effects on small business
entities resulting from the
implementation of conservation actions
related to the revised proposed critical
habitat for the Sonoma County DPS of
the California tiger salamander. This
analysis is based on the estimated
incremental impacts associated with the
proposed rulemaking as described in
Chapters 2 through 4 of the DEA. The
SBREFA analysis evaluates the potential
for economic impacts related to several
categories, including: (1) Residential
and commercial development, (2)
transportation activities, (3) utility
activities, and (4) incremental
administrative costs (IEC 2010,
Appendix A). The DEA concludes that
the proposed rulemaking may affect
small entities (IEC 2010, Appendix A).
Incremental impacts from the
administrative costs of section 7
consultations on critical habitat
associated with residential and
commercial development are expected
for small entities. There are 1,911
businesses involved in development
activities within Sonoma County and, of
these, 1,896 are considered small
businesses. Therefore, approximately 99
percent of all building construction
companies in Sonoma County qualify as
small entities. Because information on
specific third parties that may be
involved in future development
consultations is lacking, the analysis
conservatively assumes that all of the
entities involved in future consultation
efforts are small land subdivision
companies. Because the DEA calculates
impacts to small businesses at the
County-wide scale, it likely
overestimates the impacts associated
with this revised proposed critical
habitat, which only covers a portion of
the County.
The DEA assumes annual revenues of
up to $33.5 million per small entity, and
annualized impacts may be borne by all
small land subdivision companies.
Annualized impacts to the construction
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2869
industry ($6,630 applying a 7 percent
discount rate) are estimated to be
significantly less than the annual
revenues that could be generated by a
single small building construction
entity. If all impacts are borne by one
single small construction company, the
estimated annualized impact would
represent less than 0.1 percent of the
maximum total annual revenues (IEC
2010, Appendix A). No other
incremental impacts attributed to
transportation or utility activities are
expected to be borne by entities that
meet the definition of small entities (IEC
2010, Appendix A). Please refer to the
DEA of the proposed critical habitat
designation for a more detailed
discussion of potential economic
impacts.
In summary, we have considered
whether the revised proposed critical
habitat would result in a significant
economic impact on a substantial
number of small entities. For the above
reasons and based on currently available
information, we certify that, if
promulgated, the revised proposed
critical habitat for the Sonoma County
DPS of the California tiger salamander
would not have a significant economic
impact on a substantial number of small
business entities. Therefore, an initial
regulatory flexibility analysis is not
required.
Executive Order 13211—Energy Supply,
Distribution, or Use
Executive Order 13211 requires
Federal agencies to prepare Statements
of Energy Effects when undertaking
certain actions. The Office of
Management and Budget’s guidance for
implementing this Executive Order
outlines nine outcomes that may
constitute ‘‘a significant adverse effect’’
when compared to no regulatory action.
As discussed in Chapter 4 and
Appendix A, the DEA finds that none of
these criteria are relevant to this
analysis (IEC 2010, Appendix A). The
DEA concludes that incremental
impacts to utilities are limited to the
administrative cost of intra-Service
consultation associated with a habitat
conservation plan (HCP), which does
not involve third parties. Any other
impacts are expected to occur as a result
of the listing of the California tiger
salamander, regardless of the
designation of critical habitat.
Therefore, the rule will not affect energy
supply, distribution, or use. Designation
of critical habitat is not expected to lead
to any adverse outcomes (such as a
reduction in electricity production or an
increase in the cost of energy
production or distribution), and a
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Statement of Energy Effects is not
required.
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
Government-to-Government Relations
with Native American Tribal
Governments (59 FR 22951), E.O. 13175,
and the Department of the Interior’s
manual at 512 DM 2, we readily
acknowledge our responsibility to
communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
with Tribes in developing programs for
healthy ecosystems, to acknowledge that
Tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to Tribes.
The Federated Indians of Graton
Rancheria in California is the only Tribe
that may be affected by this proposed
revised critical habitat rule.
Approximately 254 ac (103 ha) of Tribal
lands could be designated. The
Sacramento Fish and Wildlife Office has
entered into discussion with the Tribe
regarding the proposed revised
designation in preparation of this
revised rule. We will be contacting the
Federated Indians of Graton Rancheria
and requesting comments regarding the
status of the California tiger salamander
on lands under Tribal ownership and
management.
A complete list of all references we
cited in the proposed rule and in this
document is available on the Internet at
https://www.regulations.gov, or by
contacting the Sacramento Fish and
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT section).
Author(s)
The primary authors of this notice are
the staff members of the Sacramento
Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT section).
List of Subjects in 50 CFR Part 17
*
Salamander, California tiger.
Salamander, California tiger.
Salamander, California tiger.
*
*
Ambystoma
californiense.
Ambystoma
californiense.
Ambystoma
californiense.
*
U.S.A. (CA) ............
U.S.A. (CA) ............
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Critical habitat—fish and wildlife.
*
*
*
*
(d) Amphibians.
*
*
*
*
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*
*
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*
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Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
2. The entry for ‘‘Salamander,
California tiger’’ under ‘‘AMPHIBIANS’’
in the List of Endangered and
Threatened Wildlife at § 17.11(h) is
revised to read as follows:
§ 17.11 Endangered and threatened
wildlife.
*
Status
*
When listed
*
Critical
habitat
*
Special
rules
*
*
677E, 702
17.95(d)
NA
T
744
17.95(d)
17.43(c)
E
729E, 734
17.95(d)
NA
*
Sfmt 4702
*
*
E
California Tiger Salamander
(Ambystoma californiense)
*
*
*
*
*
California Tiger Salamander
(Ambystoma californiense) in Sonoma
County
*
*
*
*
*
(53) * * *
(i) Standing bodies of fresh water
(including natural and manmade (e.g.,
stock)) ponds, vernal pools, and other
PO 00000
1. The authority citation for part 17
continues to read as follows:
*
*
U.S.A. (CA—Santa
Barbara County).
U.S.A. (CA—Central California).
U.S.A. (CA—
Sonoma County).
*
3. Critical habitat for the California
tiger salamander (Ambystoma
californiense) in Sonoma County at
§ 17.95(d) is proposed to be amended by
revising the heading, paragraph (53)(i),
and the map at paragraph (56) to read
as follows:
§ 17.95
*
AMPHIBIANS
*
U.S.A. (CA) ............
*
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
(h) * * *
Vertebrate population where endangered or threatened
Scientific name
*
Accordingly, we propose to further
amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal
Regulations, as proposed to be amended
at 74 FR 41662, August 18, 2009, as
follows:
*
Endangered and threatened species,
Exports, Imports, Reporting and
Historic range
*
Proposed Regulation Promulgation
References Cited
Species
Common name
recordkeeping requirements,
Transportation.
*
*
*
ephemeral or permanent water bodies
that typically support inundation during
winter and early spring and hold water
for a minimum of 12 consecutive weeks
in a year of average rainfall.
*
*
*
*
*
(56) * * *
BILLING CODE 4310–55–P
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*
*
*
*
DEPARTMENT OF COMMERCE
Dated: December 30, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[FR Doc. 2011–843 Filed 1–14–11; 8:45 am]
[Docket No. 110104009–1009–01]
BILLING CODE 4310–55–C
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RIN 0648–BA25
Pacific Halibut Fisheries; Catch
Sharing Plan
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule.
AGENCY:
NMFS proposes to approve
and implement changes to the Pacific
Halibut Catch Sharing Plan (Plan) for
SUMMARY:
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the International Pacific Halibut
Commission’s (IPHC or Commission)
regulatory Area 2A off Washington,
Oregon, and California (Area 2A). NMFS
proposes to implement the portions of
the Plan and management measures that
are not implemented through the IPHC.
This includes Tribal regulations and the
sport fishery allocations and
management measures for Area 2A.
These actions are intended to enhance
the conservation of Pacific halibut, to
provide greater angler opportunity
where available, and to protect
overfished groundfish species from
being incidentally caught in the halibut
fisheries.
Comments on the proposed
changes to the Plan and on the proposed
domestic Area 2A halibut management
DATES:
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*
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Agencies
[Federal Register Volume 76, Number 11 (Tuesday, January 18, 2011)]
[Proposed Rules]
[Pages 2863-2871]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-843]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0044; MO 92210-0-0009]
RIN 1018-AW86
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Sonoma County Distinct Population Segment of
the California Tiger Salamander (Ambystoma californiense)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the comment period on our August 18, 2009, proposed designation of
critical habitat for the Sonoma County Distinct Population Segment of
the California tiger salamander (Ambystoma californiense) under the
Endangered Species Act of 1973, as amended. We also announce revisions
to the proposed critical habitat unit, as it was described in the
proposed rule published in the Federal Register on August 18, 2009 (74
FR 41662), and announce the availability of the draft economic analysis
for the revised proposed critical habitat designation and an amended
required determinations section of the proposal. We are reopening the
comment period for an additional 30 days to allow all interested
parties an opportunity to comment simultaneously on the revised
proposed critical habitat, the associated draft economic analysis, and
the amended required determinations section. Comments previously
submitted need not be resubmitted and will be fully considered in
preparation of the final rule.
DATES: We will consider public comments received on or before February
17, 2011. Comments must be received by 11:59 p.m. Eastern Time on the
closing date. Any comments that we receive after the closing date may
not be considered in the final decision on this action.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-R8-
ES-2009-0044.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2009-0044; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all comments on https://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: Susan Moore, Field Supervisor, or
Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service,
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605,
Sacramento, CA 95825; telephone 916-414-6600; facsimile 916-414-6713.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this revised
proposed rule will be based on the best scientific data available and
will be as accurate and as effective as possible. We will accept
written comments and information during this reopened comment period on
our amended proposed designation of critical habitat for the Sonoma
County Distinct Population Segment of the California tiger salamander
that was published in the Federal Register on August 18, 2009 (74 FR
41662), our draft economic analysis (DEA) of the proposed designation,
and the amended required determinations provided in this document. We
will consider information and recommendations from all interested
parties.
Therefore, during this reopened comment period we request comments
or information from the public, other concerned government agencies,
the scientific community, industry, or other interested party on: (1)
The proposed rule to designate critical habitat for the Sonoma County
Distinct Population Segment (DPS) of the California tiger salamander
that was published in the Federal Register on August 18, 2009 (74 FR
41662), the revisions to proposed critical habitat described herein
(see Revisions to Proposed Critical Habitat section), and the DEA of
the revised proposed designation; (2) the considered exclusion of
critical habitat; and (3) the amended Required Determinations section
provided in this document. We are particularly interested in comments
concerning:
(1) The proposed critical habitat designation (which comprises a
single critical habitat unit), as revised in this
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notice (see the Revisions to Proposed Critical Habitat section, below).
(2) The reasons we should or should not designate the revised
proposed habitat as ``critical habitat'' under section 4 of the
Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree to which such threats can be expected to increase
due to designation, and whether that increase in threat outweighs the
benefit of designation such that the designation of critical habitat is
not prudent.
(3) Specific information on:
(a) The amount and distribution of California tiger salamander
habitat, including areas that provide habitat for the Sonoma County DPS
of the California tiger salamander that we did not discuss in this
revised proposed critical habitat rule;
(b) Areas within the geographical area occupied by the species at
the time of listing that contain the physical and biological features
essential to the conservation of the species which may require special
management considerations or protection, that we should include in the
designation and reason(s) why (see Primary Constituent Elements (PCEs)
section of the revised proposed rule for further discussion); and
(c) Areas outside the geographical area occupied by the species at
the time of listing that are essential for the conservation of the
species, why the areas are essential, and whether they should be
included in the designation.
(4) Additional information concerning the range, distribution, and
population size of this species, including the locations of any
additional populations of the Sonoma County DPS of the California tiger
salamander that would help us further refine the boundaries of critical
habitat.
(5) Information that may assist us in clarifying the primary
constituent elements.
(6) Land-use designations and current or planned activities in the
area proposed as critical habitat, as well as their possible effects on
the revised proposed critical habitat.
(7) How the revised proposed critical habitat boundaries could be
refined to more closely circumscribe the areas identified as containing
the features essential to the species' conservation. In particular, we
are interested in specific information on the southeasterly portion of
the revised critical habitat that is east of Petaluma Hill Road and
south of Martinez Drive, and that is delineated as a ``no effect'' area
in Enclosure 1 (California Department of Fish and Game 2008) of the
``Programmatic Biological Opinion for the U.S. Army Corps of Engineers
Permitted Projects that May Affect California Tiger Salamander and
Three Endangered Plant Species on the Santa Rosa Plain, California''
(Corps File Number 223420N) (Service 2007). To date, there have been no
known detections of the salamander in this area. However, satellite
imagery of the area suggests that PCEs are present within the area. In
addition, the area is contiguous with other portions of the revised
proposed critical habitat where breeding salamanders have been located
since the development of the Santa Rosa Plain Conservation Strategy
(Conservation Strategy).
(8) Any probable economic, national security, or other impacts of
designating particular areas as critical habitat, and, in particular,
any impacts on small entities (e.g., small businesses or small
governments), and the benefits of including or excluding areas that
exhibit these impacts.
(9) Whether any specific areas being proposed as critical habitat
should be excluded under section 4(b)(2) of the Act, and whether the
benefits of potentially excluding any particular area outweigh the
benefits of including that area under section 4(b)(2) of the Act. See
the Areas Previously Considered For Exclusion Under Section 4(b)(2) of
the Act section below and the Exclusions section of the proposed rule
(74 FR 41662; August 18, 2009) for further discussion.
(10) Information on any Tribal lands that occur in areas being
proposed as critical habitat, including whether these lands are held in
fee or trust.
(11) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding or to better accommodate public concerns and
comments.
(12) Information on any quantifiable economic costs or benefits of
the proposed designation of critical habitat.
(13) Information on the extent to which the description of
potential economic impacts in the DEA is complete and accurate.
If you submitted comments or information on the proposed rule (74
FR 41662; August 18, 2009) during the initial comment period from
August 18, 2009, to October 19, 2009, please do not resubmit them.
These comments are included in the public record for this rulemaking
and we will fully consider them in the preparation of our final
determination. Our final determination concerning the designation of
critical habitat for the Sonoma County DPS of the California tiger
salamander will take into consideration all written comments and any
additional information we receive during both comment periods. On the
basis of public comments, we may, during the development of our final
determination, find that areas within the proposed critical habitat
designation do not meet the definition of critical habitat, that some
modifications to the described boundaries are appropriate, or that
areas may or may not be appropriate for exclusion under section 4(b)(2)
of the Act.
You may submit your comments and materials concerning this revised
proposed rule, the DEA associated with this revised proposed critical
habitat designation, and the amended required determinations by one of
the methods listed in the ADDRESSES section.
If you submit a comment via https://www.regulations.gov, your entire
submission--including any personal identifying information--will be
posted on the Web site. If your submission is made via a hard copy that
includes personal identifying information, 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. We will
post all hard copy comments on https://www.regulations.gov. Please
include sufficient information with your comments to allow us to verify
any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation used to prepare this notice, will be available for public
inspection at https://www.regulations.gov, or by appointment, during
normal business hours, at the U.S. Fish and Wildlife Service (Service),
Sacramento Fish and Wildlife Office (see the FOR FURTHER INFORMATION
CONTACT section). You may obtain copies of the proposed designation of
critical habitat (74 FR 41662) and the DEA on the Internet at https://www.regulations.gov at Docket No. FWS-R8-ES-2009-0044, or by mail from
the Sacramento Fish and Wildlife Office (see the FOR FURTHER
INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this revised proposed rule.
Information on the taxonomy, distribution, life history, biology, and
other information about the California tiger salamander is included in
the Background section of the final rule to list the California tiger
salamander as a threatened species,
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published in the Federal Register on August 4, 2004 (69 FR 47212).
Additional relevant information may be found in the final rules to list
the Santa Barbara County DPS (65 FR 57242; September 21, 2000) and the
Sonoma County DPS of the California tiger salamander (68 FR 13498;
March 19, 2003); the proposed rules to designate critical habitat for
the California tiger salamander in Santa Barbara County (69 FR 3064;
January 22, 2004) and the Central population of the species' range (69
FR 48570; August 10, 2004); and the final rules to designate critical
habitat for the California tiger salamander in Santa Barbara County (69
FR 68568; November 24, 2004) and the Central population (70 FR 49380;
August 23, 2005). The information contained in the previous Federal
Register documents was used in developing this revised proposed rule.
We now propose revisions to the proposed critical habitat unit for
the Sonoma County DPS of the California tiger salamander (see Revisions
to Proposed Critical Habitat section); accordingly, approximately
50,855 acres (ac) (20,580 hectares (ha)) in Sonoma County, California,
meet the definition of critical habitat and comprise this single
revised proposed critical habitat unit.
Previous Federal Actions
On August 4, 2004, we listed the Central California population of
the California tiger salamander as a threatened DPS (69 FR 47211). At
that time, we reclassified the California tiger salamander as
threatened throughout its range, removing the Santa Barbara County and
Sonoma County populations as separately listed DPSs (69 FR 47241).
On August 18, 2005, as a result of litigation regarding the August
4, 2004, final rule (69 FR 47211) on the reclassification of the
California tiger salamander DPSs (Center for Biological Diversity et
al. v. United States Fish and Wildlife Service et al. (Case No. C-04-
4324-WHA (N.D. Cal. 2005))), the District Court of Northern California
sustained the portion of the 2004 final rule pertaining to listing the
Central California tiger salamander as threatened, with a special rule,
and vacated the 2004 rule with regard to the Santa Barbara County and
Sonoma County DPSs, reinstating their prior listing as endangered. We
are making the necessary changes to the information included in the
Code of Federal Regulations in the regulatory section of this rule, and
we will finalize the changes in the final critical habitat for the
Sonoma County DPS of the California tiger salamander.
With respect to critical habitat, on October 13, 2004, a complaint
was filed in the U.S. District Court for the Northern District of
California (Center for Biological Diversity et al. v. U.S. Fish and
Wildlife Service et al. (Case No. C-04-4324-FMS (N.D. Cal. 2005))),
which in part challenged the failure of designating critical habitat
for the California tiger salamander in Sonoma County. On February 3,
2005, the District Court approved a settlement agreement that required
the Service to submit a final determination on the proposed critical
habitat designation for publication in the Federal Register on or
before December 1, 2005. On August 2, 2005 (70 FR 44301), the Service
published a proposed rule to designate approximately 74,223 ac (30,037
ha) of critical habitat, and on November 17, 2005, we published a
revised proposed rule indicating we were considering approximately
21,298 ac for the final designation (70 FR 69717). In the 2005 revised
proposed rule, we proposed critical habitat in areas within the range
where, at that time, we had credible records of breeding, as reported
by biologists that were permitted by the Service to survey for the
salamander. On December 14, 2005, the Service published a final rule in
the Federal Register (70 FR 74138), which identified four subunits of
critical habitat, consisting of 17,418 ac (7,049 ha) located mostly
west of the developed portions of Santa Rosa, Rohnert Park, and Cotati,
in Sonoma County. Each one of the subunits represented a breeding
center for the species. In the final rule, the Service excluded all
proposed critical habitat, resulting in a designation of zero (0) acres
of critical habitat.
On February 29, 2008, we received a notice of intent to sue from
the Center for Biological Diversity that challenged the Service's final
designation of critical habitat, claiming that it was not based on the
best available scientific information. On May 5, 2009, the Court
approved a stipulated settlement agreement where the Service agreed to
publish a revised proposed rule within 90 days that encompassed the
same geographic area as the August 2005 proposal. The proposed rule,
published on August 18, 2009 (74 FR 41662), complies with the May 5,
2009, stipulated agreement.
Section 3 of the Act defines critical habitat as 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 essential to the conservation of the species that
may require special management considerations or protection, and
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary 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 critical habitat must consult with
us on the effects of their proposed actions, under section 7(a)(2) of
the Act.
Revisions to Proposed Critical Habitat
In this notice, we are revising the proposed Unit 1 (Santa Rosa
Plain Unit), as described in the August 2, 2005 (70 FR 44301), and
August 18, 2009 (74 FR 41662), proposed rules. In the August 2, 2005,
proposed critical habitat rule, we identified the historic and
potential range of the species in Sonoma County, utilizing historic
information and all known breeding and adult locality data available at
that time. Subsequently, the November 17, 2005, proposed revised rule
(70 FR 69717) limited the proposed critical habitat to areas containing
essential physical and biological features that were located within 0.7
mile (mi) (1.1 kilometers (km)) of known breeding sites, thereby
focusing the proposed critical habitat designation on providing
sufficient breeding habitat and upland habitat to maintain and sustain
existing salamanders in documented breeding sites. The November 2005
proposed revision did not include other areas within the Santa Rosa
Plain that contained the essential physical and biological features.
Based on the May 5, 2009, stipulated settlement described above, we
published a proposed critical habitat rule on August 18, 2009 (74 FR
41662), that encompassed the same geographic areas as the original
August 2, 2005, proposed rule (70 FR 44301).
The purpose of this revision to the proposed critical habitat is to
better delineate the areas that contain the physical or biological
features essential to the conservation of the species and that meet the
definition of critical habitat for the California tiger salamander in
Sonoma County. In general, this revision involves adjusting the
boundaries of the proposed critical habitat Unit 1 to better reflect
the occupied and potential range of the species as reflected in the
Conservation Strategy mapping criteria (Conservation Strategy Team
2005a, Appendix E), that was developed subsequent to the
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August 2, 2005, proposed rule (74 FR 41662). In addition, this revision
considers recent documentation of adult salamanders with potential
breeding habitat in additional areas within the proposed critical
habitat, including the areas in the vicinity of Lichau Creek and
Railroad Avenue (WRA Environmental Consultants 2005, pp. 3-8), and
recent findings of California tiger salamanders at the Horn wetland
mitigation bank (Monk 2010, pers. com.).
As a result of this revision, the area proposed for critical
habitat in Unit 1 is 50,855 ac (20,580 ha), rather than the 74,223 ac
(30,037 ha) identified in the August 18, 2009, proposed rule. The
revised unit is now bordered on the west by the generalized eastern
boundary of the 100-year Laguna de Santa Rosa floodplain, on the south
by Pepper Road (northwest of Petaluma), on the east by the foothills of
the Sonoma Mountains, and on the north by Windsor Creek. The northern
boundary of the revised proposed critical habitat and the non-developed
portions of the eastern boundary remain very close to the previously
proposed boundaries. Other boundary adjustments are described below. A
small addition to the southeastern edge of Unit 1 is within the
geographic range occupied by the species at the time of listing and
contains the physical or biological features essential to the
conservation of the species. A revised map for the proposed critical
habitat unit in Sonoma County is included in this notice.
The framers of the Conservation Strategy generally did not consider
areas within the Federal Emergency Management Agency (FEMA) 100-year
floodplain as areas suitable to support salamander breeding because
seasonal pools within the 100-year floodplain are subject to flooding
from perennial sources (such as the Laguna de Santa Rosa), and provide
a high likelihood of supporting salamander predators in pools within
the floodplain. In the Conservation Strategy, periodically flooded
uplands within the 100-year floodplain may be considered salamander
habitat if located near predator-free breeding pools (Conservation
Strategy Team 2005a, Appendix E). Occurrence information from the
California Natural Diversity Database (CNDDB) (2010) indicates that,
despite intensive focus on the salamander within the Santa Rosa Plain,
to date no occurrences have been identified within the 100-year
floodplain. The fact that this species has not been located within the
floodplain may be due to the lack of suitable upland habitat within the
floodplain during the wet season (Conservation Strategy Team 2005b,
Appendix L). The Service, therefore, has determined that most of the
100-year floodplain lacks the physical and biological features and is
not essential for the conservation of the California tiger salamander.
To revise the proposed critical habitat boundary along the
floodplain, we used a process that generalizes the floodplain boundary
in order to smooth complex lines, removing the bulk of the floodplain
from proposed critical habitat while retaining smaller areas along the
eastern border of the floodplain. A segment of the 100-year floodplain
that is located between the Stony Point Conservation Area (near Wilfred
Avenue) and the Northwest Cotati Conservation Area (near Nahmens Road)
is retained within the revised proposed critical habitat to reduce
fragmentation of the northern and southern breeding concentrations
within the unit by allowing for potential dispersal and genetic
exchange. This retained segment is further bounded by Llano Road on the
west and the western edge of the urban growth boundary of Cotati,
California (near the northern terminus of Helman Lane), on the east.
Additionally, this revised proposed critical habitat unit no longer
includes several areas of small remnant open parcels that occur between
the eastern periphery of suburban Sebastopol and the western edge of
the 100-year floodplain. We do not consider these areas essential for
the conservation of the species because the undeveloped lands are small
in size, are isolated from each other by development, are isolated by
the 100-year floodplain and the Laguna de Santa Rosa from breeding
habitat on the eastern side of the floodplain, are not known to be
occupied, and do not contain the PCEs in the correct quantity and
spatial arrangement to provide for the conservation of the species.
This revised proposed critical habitat designation no longer
includes the urbanized centers of Santa Rosa, Bennett Valley, Rohnert
Park, and Cotati. These urban centers consist almost exclusively of
hardened, developed landscapes. The remnant natural habitat within
these areas is limited to small, isolated parcels within a matrix of
urban development. These areas have been removed in this revised
proposal because developed areas (lands covered by buildings, pavement,
and other structures) lack the physical or biological features
essential to the conservation of the species according to section
3(5)(A) of the Act. We also do not consider the remnant natural habitat
within these city centers as essential for the conservation of the
salamander. However, areas on the periphery of urban areas remain
within the revised proposed critical habitat boundary. The scale of the
map we prepared under the parameters for publication within the Code of
Federal Regulations is not sufficient to reflect the exclusion of
developed lands, while retaining open lands that provide the features
essential to the conservation of the species.
Any such developed lands that have been left inside critical
habitat boundaries shown on the maps of this revised proposed rule are
excluded by text and are not proposed for designation as critical
habitat because they either do not contain the physical or biological
features essential to the species or are not considered essential for
the species. Therefore, when the critical habitat is finalized, a
Federal action involving these undesignated lands would not trigger a
section 7 consultation, nor, with respect to critical habitat, would it
require an analysis to determine adverse modification in these
undesignated areas, unless the specific action would affect the
physical or biological features essential to the conservation of the
species in the adjacent designated critical habitat.
In the southernmost region of the Santa Rosa Plain, the critical
habitat unit boundary has been revised as follows. In the vicinity of
Lichau Creek and Railroad Avenue, additional acreage reflects new
information on the presence of salamander breeding within the area. The
area south of Pepper Road, along both sides of U.S. Highway 101, is not
included in the revised proposed critical habitat because we do not
currently consider this area to be essential to the conservation of the
species. This area has been fragmented by industrial and residential
development and roadways, including the major north-south interstate
highway, U.S. Highway 101. More than 20 percent of the open land
generally south of Pepper Road and west of U.S. Highway 101 is
delineated as 100-year floodplain for the Petaluma River. As discussed
above, we generally do not consider lands within the 100-year
floodplain to contain suitable breeding habitat for the salamander.
Suitable upland habitat may also be lacking during the wet season
(Conservation Strategy Team 2005b, Appendix L). The floodplain
fragments the remaining undeveloped land in this area. Although there
is an anecdotal report from the 1990s of a California tiger salamander
observation along Rainsville Road, we are not aware of confirmed
observations of the California tiger salamander within this area.
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Areas Previously Considered for Exclusion Under Section 4(b)(2) of the
Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific 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 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.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan.
In the December 14, 2005, final rule (70 FR 74138), we evaluated
those lands determined to have essential features, in order to
ascertain if any specific areas were appropriate for exemption or
exclusion from critical habitat under sections 4(a)(3) and 4(b)(2) of
the Act. On the basis of that evaluation, we determined that the
benefits of excluding lands under appropriate management for the Sonoma
County DPS of the California tiger salamander outweighed the benefits
of their inclusion within critical habitat. Consequently, we excluded
the entire proposed critical habitat for the Sonoma County DPS of the
California tiger salamander under section 4(b)(2) of the Act, based in
part on the expectation that the Conservation Strategy would be
implemented. We determined that the Conservation Strategy would provide
conservation benefits that would be superior to a critical habitat
designation. We also determined that critical habitat designation might
hinder the progress of the Conservation Strategy by discouraging the
involvement of local jurisdictions and private landowners, without
providing any counterbalancing, proactive conservation benefit.
However, at that time, we acknowledged the potential for revisiting the
critical habitat designation should changed circumstances occur, such
as unsuccessful finalization or implementation of the Conservation
Strategy.
The Conservation Strategy Implementation Plan has not been
developed or implemented by local agencies during the period since the
publication of the December 14, 2005, final critical habitat rule (70
FR 74138). Therefore, at this time, we do not believe that the
Conservation Strategy provides a sufficient basis for exclusion of the
unit from critical habitat designation. Any exclusion of critical
habitat based on potential economic costs will be presented in the
final rule.
We are not proposing to exclude any areas from critical habitat at
this time. In the final rule, we may consider exclusion of all or some
of the Federated Indians of Graton Rancheria of California's 254-ac
(103-ha) parcel of Tribal trust land that currently overlaps with
proposed critical habitat. This potential exclusion would occur under
section 4(b)(2) of the Act and by taking into consideration Secretarial
Order 3206 involving American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act. However, the
final decision on whether to exclude any areas will be based on the
best scientific data available at the time of the final designation,
including information obtained during the comment period and
information about the economic impact of designation.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate critical
habitat based upon the best scientific 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 prepared a DEA (IEC 2010) to identify and analyze the
potential economic impacts associated with this revised proposed
critical habitat for the Sonoma County DPS of the California tiger
salamander.
The DEA (made available with the publication of this notice)
estimates the foreseeable economic impacts of this revised proposed
critical habitat (IEC 2010). The economic analysis presented in the DEA
uses the historical record to inform its assessment of potential future
impacts of critical habitat. The analysis forecasts both baseline and
incremental impacts likely to occur after the revised proposed rule is
finalized. The DEA identifies economic impacts to the following
activities as a result of the designation of critical habitat for the
Sonoma County DPS of the California tiger salamander: (1) Commercial
and residential development, (2) transportation projects, and (3)
utility and pipeline construction and maintenance activities. In
addition, the DEA identifies potential economic impacts to agriculture
and mitigation banks, but concludes that these activities are not
likely to incur measurable economic impacts due to the designation of
critical habitat. To provide an understanding of the potential economic
impacts, this analysis determines the scope and scale of economic
activities within the revised proposed critical habitat; identifies
threats to California tiger salamander habitat associated with these
economic activities; identifies conservation measures that may be
implemented to avoid or minimize these threats; and to the extent
feasible, quantifies the economic costs of these measures.
The DEA describes the economic impacts of all potential
conservation efforts for the Sonoma County DPS of the California tiger
salamander; some of these costs will likely be incurred regardless of
whether we designate critical habitat. The economic impact of the
revised proposed critical habitat designation is analyzed by comparing
scenarios both ``with critical habitat'' and ``without critical
habitat.'' The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections that are already in
place for the species (such as protections under the Act and other
Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
critical habitat designation for the Sonoma County DPS of the
California tiger salamander. In other words, the incremental costs are
those attributable solely to the designation of critical habitat above
and beyond the baseline costs; these are the costs we may consider in
the final designation of critical habitat when evaluating the benefits
of excluding particular areas under section 4(b)(2) of the Act. The
analysis looks retrospectively at
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baseline impacts incurred since the species was listed, and forecasts
both baseline and incremental impacts likely to occur if we finalize
the revised proposed critical habitat designation. For a further
description of the methodology of the analysis, see Chapter 2,
``Framework for the Analysis,'' of the DEA (IEC 2010).
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
Sonoma County DPS of the California tiger salamander over the next 25
years, which was determined to be the appropriate period for analysis
because limited planning information is available for most activities
to forecast activity levels for projects beyond a 25-year timeframe.
The DEA identifies potential incremental costs as a result of the
proposed critical habitat designation; these are those costs attributed
to critical habitat over and above those baseline costs attributed to
listing.
The DEA 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 required to accomplish species and habitat
protection. The DEA 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 DEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on agriculture and transportation
projects, Federal lands, small entities, and the energy industry.
Decision-makers can use this information to assess whether the effects
of the critical habitat designation might unduly burden a particular
group or economic sector.
Baseline economic impacts are those impacts that result from
listing and other conservation efforts for the California tiger
salamander. The DEA quantifies baseline costs due to the administrative
cost of section 7 consultations. Additional baseline impacts stem from
conservation measures applied to avoid jeopardy and take of California
tiger salamanders as well as other conservation measures unrelated to
the designation of critical habitat. Potential baseline impacts to
development stem from two main sources: (1) Minimization and mitigation
measures applied as part of the section 404 permit process pursuant to
the Clean Water Act; and (2) measures taken to avoid jeopardy of the
California tiger salamander as part of section 7 consultation.
Mitigation requirements are defined by the Service in its Programmatic
consultation with the Corps (Service 2007) and are considered baseline
costs. Approximately 80 percent of future development projects are
expected to require mitigation. Mitigation credits sold recently range
from $100,000 to $130,000 per acre in this area.
The DEA revealed that all incremental impacts stem entirely from
the administrative costs of section 7 consultation on commercial and
residential development projects, and on transportation and utility
activities. Significant uncertainty exists regarding whether the
Service will require additional conservation measures specifically to
avoid adverse modification of critical habitat in future section 7
consultations, and what such measures might entail. As a result, the
analysis does not forecast incremental impacts due to such measures.
The DEA estimates total potential incremental economic impacts in areas
proposed as critical habitat over the next 25 years (2011 to 2035) to
be approximately $465,000 ($39,900 annualized) in present value terms
applying a 7 percent discount rate (IEC 2010, p. ES-4), and $685,000
($39,300 annualized) in present value terms applying a 3 percent
discount rate (IEC 2010, Appendix B). Impacts associated with section 7
consultations on development projects total $441,000 ($37,900
annualized), applying a 7 percent discount rate, and make up the
largest portion of post-designation incremental impacts, accounting for
95 percent of the forecast incremental impacts. Incremental impacts to
transportation represent the next largest source of incremental
impacts, and total $22,500 (applying a 7 percent discount rate), which
represents 5 percent of total incremental impacts. The present value
administrative cost of impacts associated with utility activities is
$1,290 (applying a 7 percent discount rate), and represents less than 1
percent of the overall incremental impacts.
The greatest incremental impacts are forecast to occur within the
Santa Rosa Urban Growth Boundary (UGB) ($209,000 present value impacts
discounted at 7 percent), and make up 45 percent of the overall
incremental impacts. The second largest incremental impacts are
predicted to occur within the Windsor UGB, with present value impacts
at $136,000 (applying a 7 percent discount rate) comprising 29 percent
of the overall incremental impacts. Incremental impacts to Petaluma,
which are forecast to incur the least amount of incremental impacts,
are estimated at $10,100 of present value impacts (discounted at 7
percent), and make up 2 percent of the overall incremental impacts.
Only a small portion of the Petaluma UGB intersects with the revised
proposed critical habitat. The DEA concerning the proposed critical
habitat designation is available for review and comment (see ADDRESSES
section).
Required Determinations--Amended
In our proposed rule published in the Federal Register on August
18, 2009 (74 FR 41662), 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 the Unfunded Mandates Reform Act (2 U.S.C.
1501 et seq.), Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform),
E.O. 12630 (Takings), the Paperwork Reduction Act, the National
Environmental Policy 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, we are amending
our required determinations concerning the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), and E.O. 13211 (Energy Supply, Distribution, or
Use).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) (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),
as described below. 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.
Based on our DEA for the revised proposed critical habitat, we provide
our analysis for determining
[[Page 2869]]
whether the revised proposed designation would result in a significant
economic impact on a substantial number of small entities. Based on
comments we receive during the public comment period, we may revise
this determination as part of a final rulemaking.
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. Private developers may be considered
small entities if their annual income is not greater than $33.5
million. 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 operations.
To determine if the revised proposed critical habitat for the
Sonoma County DPS of the California tiger salamander would affect a
substantial number of small entities, we consider the number of small
entities affected by particular types of economic activities, such as
residential and commercial development. In order to determine whether
it is appropriate for our agency to certify that this rule would not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Critical habitat designation will not affect activities that do not
have any Federal involvement; designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the Sonoma County DPS of the
California tiger salamander is present, Federal agencies already are
required to consult with us under section 7 of the Act on activities
they fund, permit, or implement that may affect the species.
Additionally, even in the absence of a Federal nexus, indirect
incremental impacts may result if, for example, a city requests project
modifications via the city's review under the California Environmental
Quality Act (CEQA), due to the designation of critical habitat. If we
finalize this proposed critical habitat designation, consultations to
avoid the destruction or adverse modification of critical habitat would
be incorporated into the existing consultation process on the Sonoma
County DPS of the California tiger salamander, because it is listed as
endangered under the Act.
In the DEA, we evaluate the potential economic effects on small
business entities resulting from the implementation of conservation
actions related to the revised proposed critical habitat for the Sonoma
County DPS of the California tiger salamander. This analysis is based
on the estimated incremental impacts associated with the proposed
rulemaking as described in Chapters 2 through 4 of the DEA. The SBREFA
analysis evaluates the potential for economic impacts related to
several categories, including: (1) Residential and commercial
development, (2) transportation activities, (3) utility activities, and
(4) incremental administrative costs (IEC 2010, Appendix A). The DEA
concludes that the proposed rulemaking may affect small entities (IEC
2010, Appendix A).
Incremental impacts from the administrative costs of section 7
consultations on critical habitat associated with residential and
commercial development are expected for small entities. There are 1,911
businesses involved in development activities within Sonoma County and,
of these, 1,896 are considered small businesses. Therefore,
approximately 99 percent of all building construction companies in
Sonoma County qualify as small entities. Because information on
specific third parties that may be involved in future development
consultations is lacking, the analysis conservatively assumes that all
of the entities involved in future consultation efforts are small land
subdivision companies. Because the DEA calculates impacts to small
businesses at the County-wide scale, it likely overestimates the
impacts associated with this revised proposed critical habitat, which
only covers a portion of the County.
The DEA assumes annual revenues of up to $33.5 million per small
entity, and annualized impacts may be borne by all small land
subdivision companies. Annualized impacts to the construction industry
($6,630 applying a 7 percent discount rate) are estimated to be
significantly less than the annual revenues that could be generated by
a single small building construction entity. If all impacts are borne
by one single small construction company, the estimated annualized
impact would represent less than 0.1 percent of the maximum total
annual revenues (IEC 2010, Appendix A). No other incremental impacts
attributed to transportation or utility activities are expected to be
borne by entities that meet the definition of small entities (IEC 2010,
Appendix A). Please refer to the DEA of the proposed critical habitat
designation for a more detailed discussion of potential economic
impacts.
In summary, we have considered whether the revised proposed
critical habitat would result in a significant economic impact on a
substantial number of small entities. For the above reasons and based
on currently available information, we certify that, if promulgated,
the revised proposed critical habitat for the Sonoma County DPS of the
California tiger salamander would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Executive Order 13211--Energy Supply, Distribution, or Use
Executive Order 13211 requires Federal agencies to prepare
Statements of Energy Effects when undertaking certain actions. The
Office of Management and Budget's guidance for implementing this
Executive Order outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to no regulatory action. As
discussed in Chapter 4 and Appendix A, the DEA finds that none of these
criteria are relevant to this analysis (IEC 2010, Appendix A). The DEA
concludes that incremental impacts to utilities are limited to the
administrative cost of intra-Service consultation associated with a
habitat conservation plan (HCP), which does not involve third parties.
Any other impacts are expected to occur as a result of the listing of
the California tiger salamander, regardless of the designation of
critical habitat. Therefore, the rule will not affect energy supply,
distribution, or use. Designation of critical habitat is not expected
to lead to any adverse outcomes (such as a reduction in electricity
production or an increase in the cost of energy production or
distribution), and a
[[Page 2870]]
Statement of Energy Effects is not required.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
The Federated Indians of Graton Rancheria in California is the only
Tribe that may be affected by this proposed revised critical habitat
rule. Approximately 254 ac (103 ha) of Tribal lands could be
designated. The Sacramento Fish and Wildlife Office has entered into
discussion with the Tribe regarding the proposed revised designation in
preparation of this revised rule. We will be contacting the Federated
Indians of Graton Rancheria and requesting comments regarding the
status of the California tiger salamander on lands under Tribal
ownership and management.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at https://www.regulations.gov, or by contacting the Sacramento Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT section).
Author(s)
The primary authors of this notice are the staff members of the
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended at 74 FR 41662, August 18, 2009, as follows:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. The entry for ``Salamander, California tiger'' under
``AMPHIBIANS'' in the List of Endangered and Threatened Wildlife at
Sec. 17.11(h) is revised to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
AMPHIBIANS
* * * * * * *
Salamander, California tiger..... Ambystoma U.S.A. (CA)........ U.S.A. (CA--Santa E 677E, 702 17.95(d) NA
californiense. Barbara County).
Salamander, California tiger..... Ambystoma U.S.A. (CA)........ U.S.A. (CA--Central T 744 17.95(d) 17.43(c)
californiense. California).
Salamander, California tiger..... Ambystoma U.S.A. (CA)........ U.S.A. (CA--Sonoma E 729E, 734 17.95(d) NA
californiense. County).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Critical habitat for the California tiger salamander (Ambystoma
californiense) in Sonoma County at Sec. 17.95(d) is proposed to be
amended by revising the heading, paragraph (53)(i), and the map at
paragraph (56) to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
California Tiger Salamander (Ambystoma californiense)
* * * * *
California Tiger Salamander (Ambystoma californiense) in Sonoma
County
* * * * *
(53) * * *
(i) Standing bodies of fresh water (including natural and manmade
(e.g., stock)) ponds, vernal pools, and other ephemeral or permanent
water bodies that typically support inundation during winter and early
spring and hold water for a minimum of 12 consecutive weeks in a year
of average rainfall.
* * * * *
(56) * * *
BILLING CODE 4310-55-P
[[Page 2871]]
[GRAPHIC] [TIFF OMITTED] TP18JA11.002
* * * * *
Dated: December 30, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-843 Filed 1-14-11; 8:45 am]
BILLING CODE 4310-55-C