Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Buena Vista Lake Shrew, 39835-39867 [2013-15586]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Rules and Regulations]
[Pages 39835-39867]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15586]



[[Page 39835]]

Vol. 78

Tuesday,

No. 127

July 2, 2013

Part II





Department of the Interior





-----------------------------------------------------------------------





Fish and Wildlife Service





-----------------------------------------------------------------------





50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Buena Vista Lake Shrew; Final Rule

Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules 
and Regulations

[[Page 39836]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0062; 4500030114]
RIN 1018-AW85


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Buena Vista Lake Shrew

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Buena Vista Lake shrew (Sorex ornatus 
relictus) under the Endangered Species Act (Act). In total, 
approximately 2,485 acres (1,006 hectares) in Kings and Kern Counties, 
California, fall within the boundaries of the critical habitat 
designation. The effect of this regulation is to conserve the Buena 
Vista Lake shrew's habitat under the Act.

DATES: This rule becomes effective on August 1, 2013.

ADDRESSES: This final rule is available on the Internet at https://www.regulations.gov. at Docket No. FWS-R8-ES-2009-0062. Comments and 
materials received, as well as supporting documentation used in 
preparing this final rule, are available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage 
Way, Sacramento, CA, 95825; telephone 916-414-6600; facsimile 916-414-
6713.
    The coordinates or plot points, or both, from which the maps were 
generated are included in the administrative record for this critical 
habitat designation and are available at https://criticalhabitat.fws.gov/crithab/, and at https://www.regulations.gov at 
Docket No. FWS-RS-ES-2009-0062, and at the Sacramento Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that we developed for this critical habitat 
designation will also be available at the Fish and Wildlife Service Web 
site and Field Office set out above, and may also be included in the 
preamble or at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Karen Leyse, Listing Coordinator, U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, Sacramento, CA, 95825; telephone 916-414-6600; facsimile 
916-414-6713. If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for the Buena Vista Lake shrew. In 
total, we are designating approximately 2,485 acres (ac) (1,006 
hectares (ha)), in six units in Kings and Kern Counties, California, as 
critical habitat for the subspecies. This is a final rule to designate 
critical habitat for the Buena Vista Lake shrew (shrew).
    Why we need to publish a rule. Under the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.) (Act), any species that is 
determined to be a threatened or endangered species requires critical 
habitat to be designated, to the maximum extent prudent and 
determinable. Designations and revisions of critical habitat can only 
be completed by issuing a rule. We listed the Buena Vista Lake shrew as 
an endangered species in 2002 (67 FR 10101; March 6, 2002), proposed 
critical habitat in 2004 (69 FR 51417; August 19, 2004), and designated 
final critical habitat in 2005 (70 FR 3438; January 24, 2005). The 
previous final designation excluded all but 84 acres (ac) under section 
4(b)(2) of the Act. In 2009, under the terms of a settlement agreement, 
we reproposed the areas originally proposed in 2004 (74 FR 53999; 
October 21, 2009). We subsequently received new information on 
additional areas occupied by the shrew, and so revised the proposed 
critical habitat on July 10, 2012, to include two additional areas and 
one modification to an existing unit (77 FR 40706). Based on the 
settlement agreement, we are to submit a final designation to the 
Federal Register by June 29, 2013.
    The basis for our action. Section 4(b)(2) of the Act states that 
the Secretary shall designate critical habitat on the basis of the best 
available scientific data after taking into consideration the economic 
impact, national security impact, and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary can 
exclude an area from critical habitat if she determines the benefits of 
exclusion outweigh the benefits of designation, unless the exclusion 
will result in the extinction of the species. The critical habitat 
areas we are designating in this rule constitute our current best 
assessment of the areas that meet the definition of critical habitat 
for the Buena Vista Lake shrew.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we have 
prepared an analysis of the economic impacts of the critical habitat 
designations and related factors. We announced the availability of the 
draft economic analysis (DEA) in the Federal Register on March 5, 2013 
(78 FR 14245), allowing the public to provide comments on our analysis. 
We have incorporated the comments and have completed the final economic 
analysis (FEA) concurrently with this final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We requested opinions from four knowledgeable 
individuals with scientific expertise to review our technical 
assumptions, analysis, and whether or not we had used the best 
available information. We received responses from two of the four peer 
reviewers. The peer reviewers that responded provided additional 
information, and suggestions to improve this final rule. Information we 
received from the peer reviews is incorporated in this final revised 
designation. We also considered all comments and information received 
from the public during the comment period.

Previous Federal Actions

    We published a final rule listing the shrew as endangered in the 
Federal Register on March 6, 2002 (67 FR 10101). The final listing rule 
is available at https://www.fws.gov/policy/library/2005/05-982.pdf. 
Please refer to the final listing rule for information on Federal 
actions prior to March 6, 2002, and for additional information on the 
shrew and its habitat.
    On January 12, 2004, the United States District Court for the 
Eastern District of California issued a Memorandum Opinion and Order 
(Kern County Farm Bureau et al. v. Anne Badgley, Regional Director of 
the United States Fish and Wildlife Service, Region 1 et al., CV F 02-
5376 AWIDLB). The order required us to publish a proposed critical 
habitat determination for the shrew by July 12, 2004, and a final 
determination by January 12, 2005. On July 8, 2004, the court extended 
the deadline for submitting the proposed rule to the Federal Register 
to August 13, 2004. We submitted a proposed rule by the required date, 
which was published in the Federal Register on August 19, 2004 (69 FR 
51417). We published a notice in the Federal

[[Page 39837]]

Register making available the DEA for the proposed designation on 
November 30, 2004 (69 FR 69578), and then published a final critical 
habitat designation on January 24, 2005 (70 FR 3438). The final 
designation excluded four of the five proposed units, based on the 
Secretary of the Interior's authority under section 4(b)(2) of the Act, 
that the benefits of exclusion outweighed the benefits of inclusion, 
and that exclusion would not result in the extinction of the 
subspecies.
    In response to a legal complaint and resulting settlement agreement 
(Center for Biological Diversity v. United States Fish and Wildlife, et 
al., Case No. 08-CV-01490-AWI-GSA), we published a new proposed 
designation, encompassing the same area as the 2004 proposed 
designation, on October 21, 2009 (74 FR 53999). We subsequently 
published a notice in the Federal Register on April 28, 2011 (76 FR 
23781), announcing the availability of a new DEA, and the reopening of 
the comment period for the new proposed critical habitat designation, 
the associated DEA, and the amended required determinations. This 
document also announced a public hearing, which was held in 
Bakersfield, California, on June 8, 2011. On March 6, 2012, we were 
granted an extension by the Court to consider additional information on 
the shrew prior to publishing our new final critical habitat 
designation (Center for Biological Diversity v. Kempthorne et al., Case 
1:08-cv-01490-AWI-GSA, filed March 7, 2012). We published a revised 
proposed rule on July 10, 2012 (77 FR 40706), in which we proposed to 
designate approximately 5,182 ac (2,098 ha) in seven units in Kings and 
Kern Counties, California. We published a notice in the Federal 
Register making available the revised DEA on March 5, 2013 (78 FR 
14245), and reopened the comment period on the revised proposed 
designation and revised DEA. We also announced a public hearing in that 
document, which took place in Bakersfield, California, on March 28, 
2013.

Background

    It is our intent to discuss below only those topics directly 
relevant to designating critical habitat for the Buena Vista Lake shrew 
in this final rule. For additional background information, please see 
the proposed designation of critical habitat for the Buena Vista Lake 
shrew published on July 10, 2012 (77 FR 40706), and available at https://ecos.fws.gov. That information is incorporated by reference into this 
final rule.
    Species Information. The Buena Vista Lake shrew is a mammal, 
approximately the size of a mouse. Like other shrews, the subspecies 
has a long snout, tiny bead-like eyes, ears that are concealed, or 
nearly concealed by soft fur, and five toes on each foot (Burt and 
Grossenheider 1964, p. 2; Ingles 1965, pp. 81-84). Shrews are active 
day or night. When they are not sleeping, they are searching for food 
(Burt and Grossenheider 1964, p. 3). The Buena Vista Lake shrew is one 
of nine subspecies within the ornate shrew (Sorex ornatus) species 
complex known to occur in California (Hall 1981, pp. 37, 38; Owen and 
Hoffmann 1983, pp. 1-4; Maldonado 1992, p. 3).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Buena Vista Lake shrew during 
four comment periods, which took place subsequent to the 2009 proposal 
(73 FR 53999), the 2011 NOA (76 FR 23781), the 2012 revised proposal 
(77 FR 40705), and the 2013 notice of availability of the revised DEA 
(78 FR 14245) (see Previous Federal Actions, above). Each of the 
comment periods ran for 60 days. We contacted appropriate Federal, 
State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule and 
draft economic analysis during these comment periods.
    During the first comment period, we received five comment letters 
addressing the proposed critical habitat designation. During the second 
comment period, we received eight comment letters addressing the 
proposed critical habitat designation or the 2011 draft economic 
analysis. During the June 8, 2011, public hearing, one individual 
provided written comments, but we did not receive oral comments 
directly addressing the proposed designation. During the third comment 
period, we received four comments directly addressing the 2012 revised 
proposed critical habitat designation or the 2011 DEA. During the 
fourth comment period, we received four comments addressing the 2012 
revised proposed critical habitat designation or the 2013 DEA. During 
the March 28, 2013, public hearing, we received one oral comment 
addressing the 2012 revised proposed critical habitat designation or 
the 2013 DEA.
    All substantive information provided during comment periods has 
either been incorporated directly into this final determination or 
addressed below. Comments received were grouped into general issues 
specifically relating to the proposed critical habitat designation for 
the shrew and are addressed in the following summary and incorporated 
into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from four knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from two of the 
peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the shrew. The peer reviewers provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. We address the two peer reviewers comments in the following 
summary and have incorporated them into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer referred to the designation as 
essential to the conservation of the species, and indicated his 
agreement with our use of best available evidence, our methods, and our 
identification of essential habitat features (primary constituent 
elements (PCEs)). He stated that the rule appears to be supported by 
the latest scientific information; that we have accurately described 
that information; and that scientific uncertainties seem to have been 
clearly identified with the implications of those uncertainties 
described. He also noted that he has no additional information 
regarding the shrew's conservation needs, or indicating the location of 
additional populations, but that he is in the process of finalizing a 
genetic analysis of the shrew as compared to other subspecies in the 
San Joaquin Valley.
    Our Response: We thank the reviewer for his comments. Should the 
genetic analysis provide significant new information regarding 
essential habitat or populations, we have the option of revising our 
designation in the future to take the information into account.
    (2) Comment: The second peer reviewer stated that, because the 
quantity of habitat necessary to conserve viable populations of the 
shrew is unknown, all remaining habitat known or suspected to be 
suitable should be protected. He concluded it was therefore appropriate 
and necessary to designate the 5,182 ac in 7 units that we had 
proposed.

[[Page 39838]]

    Our Response: We are designating all occupied areas containing the 
specific physical and biological features (the primary constituent 
elements) essential to the shrew. We delineated each area according to 
the extent of those features on the landscape, thereby including 
contiguous areas with essential habitat features to which a shrew 
population could reasonably be expected to extend. When we learned of 
the additional occupied areas, we published a revised proposal to 
include those areas in the designation as well. We consider the 
proposed areas sufficient for the conservation of the shrew because the 
proposed areas contain a variety of habitats usable by the shrew, meet 
the recovery goals established for the shrew (Service 1998, p. 192), 
and are large enough to accommodate expanding populations.
    Although we are excluding one of the seven proposed units (see 
Exclusions, below), we are doing so because we consider the benefits of 
exclusion to outweigh the benefits of inclusion for the conservation of 
the shrew in that area. The area (Unit 3) is already protected by 
various means, and additional protections and benefits to the shrew may 
result due to exclusion. We thus consider this designation to follow 
the basic philosophy expressed by the reviewer: that all areas of 
essential habitat with the potential to benefit the shrew should be 
protected.
    (3) Comment: The peer reviewer strongly recommended that we not 
exclude Unit 3, because the City of Bakersfield's habitat management 
plan for the area does not ensure optimal conditions for the shrew. 
Specifically, the plan allows extended periods without water, periodic 
flooding, and periodic ground disturbance for maintenance and repair of 
pumps and other equipment. The reviewer also noted that the City has 
not yet officially adopted the management plan.
    Our Response: The City of Bakersfield has now submitted information 
to indicate it had officially adopted the management plan (Bakersfield 
Water Board Committee 2011, entire; Chianello 2013, p. 2). Although the 
habitat management plan may not be completely optimal for the shrew, we 
consider it to provide the best conservation option. Designation of the 
unit as critical habitat would not prevent the management drawbacks 
identified by the reviewer, since these drawbacks do not involve action 
by a Federal agency. We have worked with the City of Bakersfield over 
multiple years to address monitoring and protection of shrew habitat. 
We have consequently concluded that excluding the unit from designation 
will assist our partnership with the City of Bakersfield to manage more 
effectively for the conservation of the shrew while still accommodating 
the City's use of the area as a groundwater recharge basin. For further 
analysis of the tradeoffs and benefits involved in our decision to 
exclude, see Exclusions Under Section 4(b)(2) of the Act--Kern Fan 
Water Recharge Area, below.
    (4) Comment: The peer reviewer suggested we consider designation of 
the Wind Wolves Preserve (WWP), in southwestern Kern County. We had 
indicated in the proposed rule (77 FR 40709; July 10, 2012) that shrews 
in the Wind Wolves Preserve were expected to be adorned ornate shrews 
(Sorex ornatus ornatus), based on preliminary unpublished data from a 
mitochondrial DNA analysis of a tissue sample taken from one shrew at 
that location. The reviewer indicated his understanding, based on 
conversations with the geneticist who conducted the analysis, that the 
Wind Wolves sample was actually more similar to Buena Vista Lake shrews 
than to adorned ornate shrews. The reviewer also noted that additional 
samples from Wind Wolves Preserve still remain to be statistically 
analyzed, and that these could potentially corroborate the hypothesis 
that the shrews at Wind Wolves Preserve are Buena Vista Lake shrews.
    Our Response: In considering whether to propose the Wind Wolves 
site as critical habitat for the Buena Vista Lake shrew, Service staff 
with expertise in genetics reviewed papers on shrew taxonomy and 
habitat by Dr. Maldonado and others, and noted that the historical 
range of Buena Vista Lake shrew, as depicted by Owen and Hoffman 
(1983), shows the Buena Vista Lake shrew as embedded within the range 
of the more common California ornate shrew (S. ornatus ornatus), which 
occupies more upland areas. They also found that the mitochondrial DNA 
of the one shrew sample contained a genetic type that occurs in ornate 
shrews at Tranquility and Helm, but not in any Buena Vista Lake shrew 
occurrences, suggesting that Wind Wolves Preserve might be the 
California ornate shrew. Our staff communicated with Dr. Maldonado, who 
supported our tentative conclusion that the Wind Wolves site contains 
California ornate shrews (Maldonado 2011, unpaginated). We are aware of 
the further genetic testing that Dr. Maldonado is conducting, and 
welcome further information from his study. However, we are responsible 
for using the best available information to complete the rule within 
the regulatory time-frame. When genetic analysis of the Wind Wolves 
samples is completed, if the analysis supports the presence of Buena 
Vista Lake shrews at the Wind Wolves Preserve, the critical habitat 
designation may be revised to take such data into account.

Comments From States

    During the development of the proposed rule and this final rule, we 
coordinated with the appropriate State agencies regarding the 
designation. Section 4(i) of the Act states, ``the Secretary shall 
submit to the State agency a written justification for his failure to 
adopt regulations consistent with the agency's comments or petition.'' 
We did not receive any comments from State agencies regarding this 
critical habitat designation.

Public Comments

    (5) Comment: Several commenters asked us to exclude Unit 2 based on 
the implementation of a biological opinion (BO) that we issued in 2004 
for a wetlands restoration and enhancement project funded though the 
North American Wetlands Conservation Act (NAWCA) within the historical 
lake bed of Goose Lake (Service 2004).
    Our Response: The terms and conditions in the BO all applied to the 
means by which groundbreaking activities would be carried out for the 
project (Service 2004, pp. 20-22). There was thus little provision 
established for ongoing management of the property for the benefit of 
the shrew after completion of the project. The BO did include several 
conservation recommendations, including: (1) that the effects of 
restoration activities on the shrew be monitored; (2) that an outreach 
and education program for the shrew be developed; and (3) that a 
programmatic BO be undertaken that would consider long-term seasonal 
wetlands maintenance actions. To our knowledge, none of these 
recommended conservation actions have been undertaken. In balancing the 
benefits of exclusion against the benefits of designation, we generally 
consider the extent to which exclusion would result in ongoing benefits 
that would not otherwise be realized. Because the NAWCA-funded wetlands 
improvement project is a completed project, and no ongoing management 
plan has been established for the conservation benefit of the shrew 
under the associated BO, the Secretary is not exercising her discretion 
to exclude Unit 2 under section 4(b)(2) of the Act.
    (6) Comment: Several commenters asked us to exclude Unit 3 based on 
the completion and implementation of a

[[Page 39839]]

habitat management plan (HMP) for the area.
    Our Response: The Secretary has determined that the benefits of 
exclusion outweigh the benefits of inclusion of the area identified in 
Unit 3 as critical habitat. As a result, she has excluded Unit 3 under 
section 4(b)(2) of the Act. See Exclusions below for further discussion 
of this exclusion.
    (7) Comment: Three commenters noted that, contrary to our 
description, the shrew is included as a covered species under the 
conservation easement establishing the Coles Levee Ecosystem Preserve, 
which overlaps most of Unit 4. One commenter added that the easement 
specifically benefits the shrew by establishing a year-round water 
supply to the artificial pond near which shrews were first found on the 
unit.
    Our Response: Although the easement agreement does not specifically 
use the term ``covered species'' to apply to the shrew, the shrew is 
listed in the easement agreement as a ``species of concern'' (ARCO and 
CDFG 1992a, p. 9, Exhibit G p. 5). This qualifies it for certain 
additional protections beyond those applicable under the agreement to 
native species generally (ARCO and CDFG 1992a, pp. 7-9). However, these 
additional measures primarily cover actions that must be taken in 
association with groundbreaking activities, and do not add protections 
beyond those typically required for an incidental take permit under the 
Act.
    None of the provisions of the conservation easement, or its 
associated documents such as the management permit, require or mention 
a year-round water supply for the artificial pond near which shrews 
were first found on the unit.
    (8) Comment: Two commenters asked us to exclude Unit 4 based on: 
(1) a habitat conservation plan (Elk Hills HCP), which they indicated 
is being prepared for the nearby Elk Hills Oil Fields; and (2) the 
location of the unit within the confines of the Coles Levee Ecosystem 
Preserve.
    Our Response: The Elk Hills HCP has been in preparation since 
approximately 2005, and is likely to require several more years for 
completion. Although the Buena Vista Lake shrew is likely to be a 
covered species, the Elk Hills HCP is intended primarily to minimize 
and mitigate impacts to upland species from oil and gas production in 
the Elk Hills Oil Fields (Live Oak Associates (LOA). 2006, pp. 1-3, 5). 
The Elk Hills Oil Fields area is a 75 square-mile (sq-mi) (194 square-
kilometer (sq-km)) area west of Unit 4. The Elk Hills HCP will 
encompass the Elk Hills Oil Fields, as well as selected rights-of-way 
and conservation lands within a buffer area surrounding the oil fields 
(LOA 2006, pp. 5, 8, 9). Although Unit 4 lies within the buffer area, 
not all lands within that area will be covered by the Elk Hills HCP. 
The best information currently available to us does not indicate 
whether Unit 4 will be among those areas afforded protection or not. 
Because the Elk Hills HCP is still unfinished with no expected date of 
completion and because it is unclear at this time whether the Elk Hills 
HCP will apply to the Coles Levee Unit, we do not consider the Elk 
Hills HCP to add to the benefits of excluding the unit from critical 
habitat designation. Accordingly, we are not recommending and the 
Secretary is not considering that the areas identified as critical 
habitat within the proposed Elk Hills HCP be excluded under section 
4(b)(2) of the Act.
    The 6,059-ac (2,452-ha) Coles Levee Ecosystem Preserve was 
established in 1992 (Aera Energy 2011, p. 1), and is covered by a 
conservation easement held by the California Department of Fish and 
Wildlife (CDFW) (formerly the California Department of Fish and Game 
(CDFG)). Approximately 143 ac (58 ha) of the 270 ac (109 ha) in Unit 4 
are within the Preserve. We interpret the comment to apply only to 
those areas of overlap. The purpose of the easement is to preserve the 
property in a natural condition, subject to oil and gas operations of 
the property owner (ARCO and CDFG 1992a, pp. 1, 2; ARCO and CDFG 1992b, 
p. 1). The easement includes terms under which habitat disrupted or 
destroyed by oil and gas operations can be mitigated by designation of 
lands within the property as compensation lands, (ARCO and CDFG 1992a, 
pp. 3, 4). All lands not otherwise being used for oil and gas 
operations are subject to various wildlife protection provisions, some 
of which likely benefit the shrew. Such provisions include: (1) 
Restrictions on use of the property to wildlife conservation, and to 
oil and gas exploration and production; (2) various operation 
restrictions designed to minimize impacts to wildlife; (3) reclamation 
provisions for areas no longer needed for oil or gas extraction; and 
(4) phasing out of then-existing agricultural leases (ARCO and CDFG 
1992a, pp. 2, 4-6, 10).
    A management permit attached to the easement also requires 
biological monitoring for implementation of the wildlife mitigation 
measures, and an annual management meeting between CDFW and the 
landowner (ARCO and CDFG 1992a, Exhibit D, pp. 5, 6). These provisions 
are still being carried out by Aera Energy, which obtained ownership of 
the property from ARCO in 1998 (Occidental of Elk Hills 2009, p. 3; 
Vance 2013, p. 1). However, Aera Energy does not have an active 
management permit for the area (Vance 2013, p. 1), so the requirements 
established by the management permit written for ARCO (Exhibit D) are 
presumably not enforceable against Aera.
    In considering whether to exclude a particular area from 
designation, such as those portions of Unit 4 that are within the Coles 
Levee Ecosystem Preserve, we compare the benefits for the listed 
species of including the area, to the benefits for the listed species 
of excluding the area (see Exclusions, below). In this case, the shrew 
would be unlikely to benefit from exclusion. The conservation easement 
establishing the Coles Levee Ecosystem Preserve was not designed to 
protect or enhance riparian and wetland habitat. No partnerships exist 
between ourselves and other entities to advance shrew conservation in 
the area, so designation does not have the potential to disrupt such 
partnerships; and the Preserve will continue to operate in the same 
manner whether we exclude it from designation or not.
    We have expressed concern in the past regarding the potential 
impacts of designation on CDFW's ability to manage for the shrew (70 FR 
3457). CDFW is not currently managing for the shrew in the area, with 
the exception of avoidance measures established by the easement 
agreement related to groundbreaking activities (as discussed in our 
response to the previous comment) (Vance 2013, p. 1). Additionally, we 
expect incremental costs resulting from critical habitat designation in 
Unit 4 (in the form of additional time spent for Section 7 
consultation) to be low, and to be borne primarily by ourselves, any 
other involved Federal agency, and the project proponent rather than by 
CDFW (IEc 2013, pp. 4-4, 4-5, 4-9, 4-10). We therefore expect any 
additional regulatory burden of critical habitat on CDFW to be minimal. 
In contrast, designation of the area may benefit the shrew by 
publicizing the shrew's presence and habitat requirements at the site, 
thereby allowing present and future landowners to better take those 
requirements into account in their land-use planning. Accordingly, we 
are not recommending and the Secretary is not considering that the 
areas identified as critical habitat within the Coles Levee Unit be 
excluded under section 4(b)(2) of the Act.

[[Page 39840]]

    (9) Comment: Several commenters stated that certain proposed units 
should not be included in the final critical habitat designation 
because they are already subject to adequate management or protection, 
and therefore fail to meet the Act's definition of critical habitat as 
areas that ``may require special management considerations or 
protection'' (15 U.S.C. 1532(5)(A)(i)). Another commenter asked us to 
include all proposed areas, regardless of adequate management. The 
commenter noted that two courts, including the 9th Circuit, have 
indicated that adequate management is not a valid reason to avoid 
designation.
    Our Response: We no longer consider adequate management or 
protections to be a sufficient basis for not designating an area as 
critical habitat. However, if an area has adequate management or 
protections, and if designation of critical habitat in the area may 
compromise the conservation of the species in some manner, then the 
Secretary may determine that the benefits of excluding the area from 
designation outweigh the benefits of inclusion (see Exclusions Based on 
Other Relevant Impacts, below).
    (10) Comment: Several commenters asked us to exclude portions of 
Units 2 through 5 based on expected economic impacts, and on perceived 
impacts to public health and safety. The commenters were concerned that 
health and safety impacts would result from potential disruptions to 
water conveyance through the units, and to operation and maintenance of 
existing facilities such as natural gas pipelines. Other commenters 
asked us to designate all proposed critical habitat, and to make no 
exclusions.
    Our Response: We are required by section 4(b)(2) of the Act to take 
into account the economic and other relevant impacts of critical 
habitat designation. The Secretary may account for those impacts by 
excluding any area for which the benefits of exclusion outweigh the 
benefits of designation, so long as this will not result in extinction 
of the species. Areas that do not contain any physical or biological 
features for the species, but that are within critical habitat units, 
do not constitute critical habitat and need not be excluded.
    Critical habitat only directly affects Federal agencies. It does 
not affect the normal operation, maintenance, repair, or replacement of 
existing non-Federal facilities unless activities involve Federal 
agencies (permitting, funding). The delivery of water through existing 
canals, or of natural gas through existing pipes, on private or state 
land constitutes the normal operation of those structures, and would 
not trigger section 7 consultation regardless of whether those 
structures were located within critical habitat. Additionally, some 
facilities for which exclusions were requested lack all the physical or 
biological features identified for the shrew, and so do not constitute 
critical habitat despite being located within the boundaries of a unit 
(see comment 11, below). These areas were included within the 
boundaries of the units because of the difficulty of removing these 
areas due to mapping constraints. Accordingly, with the exception of 
Unit 3 (see Exclusions below) the Secretary is not exercising her 
discretion to exclude any areas based on economic or other impacts.
    (11) Comment: Various commenters asked us to redraw portions of 
Units 2 through 5 to avoid areas without any physical or biological 
features or their specific PCEs, such as vegetation-free canals, roads, 
and pipeline right-of-ways. Additionally, one commenter provided survey 
information to indicate that several basin areas in Unit 3 are without 
PCEs for the shrew. Another commenter stated that, based on his first-
hand knowledge of the area, most of Unit 2 lacks an overstory of 
willows and cottonwoods, and that therefore the area does not qualify 
as critical habitat due to lack of a PCE.
    Our Response: Based on the information provided, we reevaluated the 
proposed critical habitat boundaries in Units 2 through 5. As a result, 
we redrew the maps for Units 2 and 5 to remove two large, primarily 
concrete-lined canals that do not contain the physical or biological 
features required by the shrew, or any specific PCEs. In most cases, 
however, the redrawing of critical habitat units to avoid individual 
requested areas would require the use of impracticably fine mapping 
scales. Accordingly, we have removed such areas lacking the physical or 
biological features from the designation textually, by including the 
following paragraph in the regulatory description of Buena Vista Lake 
shrew critical habitat under the Regulation Promulgation section below: 
``Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located'' as of the effective date of the 
designation.
    An overstory of willows and cottonwoods is not a PCE for the Buena 
Vista Lake shrew. Rather, it is an example of plants that may be 
present in areas exhibiting the first PCE: riparian or wetland 
communities containing a complex vegetative structure, with a thick 
cover of leaf litter or dense mats of low-lying vegetation. 
Additionally, a given area need only support one of the three PCEs in 
order to be eligible for designation as critical habitat. As discussed 
under Unit 2: Goose Lake Unit, below, Unit 2 provides suitable moisture 
for the shrew (PCE 2), as indicated by its scattered freshwater marsh 
and riparian areas (some of which have been recently restored), and by 
the intermittent use of the area as a groundwater recharge basin. It 
also supports a complex vegetative structure (PCE 1) in many areas, 
including Frankenia spp. (frankenia), Allenrolfea occidentalis (iodine 
bush), and Suaeda spp. (seepweed) along the slough channels; Typha spp. 
(cattails), Scirpus spp. (bulrushes), and Distichilis spp. (saltgrass) 
in intermittently saturated areas; and dense mats of saltgrass and 
other shrubs in the southern portion of the unit. As is true of all the 
units, we lack direct evidence of a consistent and diverse supply of 
prey for the shrew in the unit (PCE 3), but reasonably infer such a 
supply based on the existence in the unit of habitat that would support 
it. Such habitat is demonstrated by the presence of the other two PCEs
    Because we are excluding Unit 3 in its entirety under section 
4(b)(2) (see Exclusions, below), we do not reach the question of 
whether the unit should be redrawn to reflect a lack of PCEs in certain 
basins.
    (12) Comment: Several commenters asked us to redraw Unit 5 to avoid 
the New Rim Ditch, levee, and adjacent roadway. One commenter also 
disagreed with our statement in the proposed designation that the 
moisture regime in Unit 5 is maintained by runoff from the New Rim 
Ditch, and submitted a report from an engineer who inspected the site 
and concluded such runoff or seepage was unlikely because, based on the 
high water mark in the ditch, the water in the ditch remains lower than 
the surrounding land.
    Our Response: The bounds of Unit 5, as drawn for the proposed rule 
and finalized here, do not include the New Rim Ditch and its associated 
levee and roadway. We have removed reference to runoff from the New Rim 
Ditch as a contributing factor to the moisture regime in the unit.
    (13) Comment: Several commenters expressed concern that critical 
habitat designation would limit various land use practices including: 
mosquito abatement procedures; groundwater recharge practices around 
Bakersfield; water conveyance to surrounding farmland; oil and gas 
development; and flood management.
    Our Response: Critical habitat designations do not affect ongoing 
land

[[Page 39841]]

use practices conducted without the involvement of a Federal agency. 
Consultation on critical habitat is only triggered when there is a 
Federal nexus (action carried out, funded, or authorized by a Federal 
agency). None of the activities listed above require Federal permits or 
other direct Federal action when carried out on non-Federal lands. 
Accordingly, we do not expect critical habitat designation to affect 
these activities.
    (14) Comment: One commenter indicated that, based on recent 
trapping surveys, only 6.5 ac (2.6 ha) of habitat in Unit 2 was 
occupied by the shrew, and the shrew trapped at those locations may 
have been the adorned ornate shrew (Sorex ornatus ornatus).
    Our Response: The report for the trapping survey in question states 
that it was not possible from the trapping effort to determine the 
abundance or distribution of shrews on the site, but that the distance 
between capture points suggested they may be widely distributed (Uptain 
et al. 2004, p. 8). We drew the bounds of Unit 2 to encompass those 
areas in the vicinity of the trapping locations that exhibit at least 
one of the three PCEs essential to the Buena Vista Lake shrew. We 
characterize shrews trapped in that area as Buena Vista Lake shrews 
because the area is within the mesic (moist) lower elevation range of 
the Buena Vista Lake shrew rather than the semi-arid higher elevation 
range of the adorned ornate shrew (77 FR 40709). Genetic tests 
conducted in 2006 on samples from the Goose Lake population are 
consistent with this characterization (Maldonado 2006, p. i; Service 
2011, pp. 9, 10).
    (15) Comment: One commenter expressed concern that no standardized 
survey methodology was employed for the identification of areas 
occupied by Buena Vista Lake shrews.
    Our Response: We are required by section 4(b)(2) of the Act to 
designate critical habitat on the basis of the best scientific data 
available. The surveys and other information we used to determine 
occupied locations constitute those best data, despite the lack of a 
standardized survey methodology.
    (16) Comment: Two commenters thought we should include additional 
habitat in the designation to provide for recovery. One of those 
commenters noted that the areas proposed do not meet the recovery 
recommendations of our recovery plan for Upland Species of the San 
Joaquin Valley, California (``Recovery Plan'', Service 1998, p. 192).
    Our Response: We note that, normally, it is not necessary for 
critical habitat to coincide with recovery plan recommendations in 
order to meet its requirements under the Act. Recovery plans, when 
available, constitute part of the best scientific evidence that we must 
consider when designating critical habitat. However, recovery plans do 
not themselves identify areas with features essential to the 
conservation of a species. They can therefore inform, but may not 
determine, the critical habitat designation process.
    In addition, the comment regarding the recovery plan was made in 
response to our 2009 proposed designation, which included approximately 
4,649 ac (1,881 ha) in five units. The Recovery Plan recommended three 
or more disjunct occupied sites comprising a total of 4,940 ac (2,000 
ha). Our revised proposed designation of July, 2012 (77 FR 40705) 
included two additional units, and also increased the acreage of one of 
the existing units (Unit 4). Accordingly, the revised proposal included 
approximately 5,182 ac (2,098 ha) in 7 units, and thus met the acreage 
recommendations of the Recovery Plan. We are completely excluding one 
of those units (Unit 3) from critical habitat designation (see 
Exclusions, below), but the site retains the physical and biological 
habitat features that the shrew requires, and will be managed for the 
shrew's conservation. We therefore consider the final critical habitat 
designation to comport well with the recovery plan recommendations.
    (17) Comment: One commenter requested the legal descriptions of the 
units.
    Our Response: The maps in this entry, as modified by any 
accompanying regulatory text, establish the boundaries of the critical 
habitat designation. The coordinates or plot points or both on which 
each map is based are available to the public at https://criticalhabitat.fws.gov/crithab/, and at https://www.regulations.gov at 
Docket No. FWS-R8-ES-2009-0062, and at the Sacramento Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT, above).
    (18) Comment: One commenter noted that the DEA was not available 
during the comment period immediately following publication of the 2012 
revised proposed critical habitat designation (77 FR 40705). The 
commenter was concerned that: (1) We would proceed with critical 
habitat designation without completing the DEA; (2) commenters on the 
proposed rule would not have the benefit of information provided by the 
DEA; and (3) the opening of a separate comment period subsequent to 
completion of the DEA would improperly incrementalize the notice and 
comment process.
    Our Response: We published a notice in the Federal Register making 
available our completed DEA on March 5, 2013 (78 FR 14245). The notice 
opened a 60-day comment period for comments on either the DEA or on the 
July 10, 2012, proposed designation (77 FR 40706). Commenters therefore 
have had the benefit of reviewing both the proposed designation and a 
completed DEA during an open comment period and were able to comment on 
the proposed rule, the revised proposed rule, the DEA, and all 
associated documents in a nonincrementalized fashion.
    (19) Comment: Several commenters stated that the critical habitat 
designation provides no conservation benefit for the shrew, as 
indicated both by our statements to that effect in our 2004 proposed 
and 2005 final designations, and by the fact that the DEA estimates 
critical habitat to result in no additional conservation actions beyond 
those that would have been implemented due to the shrew's status as an 
endangered species.
    Our Response: Our 2004 and 2005 documents indicated our opinion at 
the time that critical habitat provides ``little'' additional 
protection ``in most circumstances.'' The statement thus does not 
indicate that critical habitat provides no additional protection to the 
shrew. Additionally, while the DEA does state that we are ``unable to 
foresee a circumstance in which critical habitat would change the 
conservation efforts recommended for the shrew'' (IEc 2013, p. ES-4), 
that does not account for benefits resulting from the educational and 
notification value of critical habitat. For instance, by identifying 
and publishing here the physical and biological habitat features 
required by the shrew, we inform landowners and Federal agencies of the 
shrew's habitat needs prior to the beginning of any subsequent 
consultations, thereby allowing them to plan for, and better 
incorporate, appropriate avoidance and minimization measures into their 
initial project descriptions.
    (20) Comment: Several commenters noted that section 2(c)(2) of the 
Act requires us to ``cooperate with State and local agencies to resolve 
water resource issues in concert with the conservation of endangered 
species.'' The commenters stated that critical habitat designation for 
the shrew would raise such issues, and that we must therefore cooperate 
with State and local agencies (to a greater extent than we have 
already) in order to resolve them.
    Our Response: We do not expect the designation of critical habitat 
for the shrew to raise water resource issues. Water deliveries through 
existing canals

[[Page 39842]]

in designated units constitute non-Federal actions, and so do not 
require consultation for impacts to critical habitat. Construction of 
new canals within critical habitat would potentially affect the shrew 
directly, and so would trigger consultation regardless of critical 
habitat designation.
    (21) Comment: One commenter stated that we did not vigorously 
defend our 2005 final critical habitat designation, and that in 
reaching a settlement agreement to repropose critical habitat we 
excluded many affected parties from the process.
    Our Response: By reaching a settlement agreement on the designation 
of critical habitat, we have not excluded any affected parties from the 
overall process of critical habitat designation. In fact the opposite 
may be true as we have had four comment periods totaling 140 days and 
two public hearings on the 2009 proposed critical habitat and 2012 
revision.
    (22) Comment: One comment stated that the economic analysis should 
provide an analysis of the monetary benefits of critical habitat 
designation. The comment describes, that while Executive Order 12866 
directs Federal agencies to provide an assessment of both the social 
costs and benefits of proposed regulatory actions, the Draft Economic 
Analysis (DEA) fails to evaluate the benefits and only calculates the 
costs. The comment further stated that methodologies exist to calculate 
both direct and ancillary benefits, such as maintaining open space, 
maintaining or revegetating riparian areas for protecting and improving 
water quality and quantity, preservation of native habitat and 
migration corridors for other species, and protection of clean air. 
Because these and other benefits of critical habitat designation were 
not quantified or detailed qualitatively, the comment asserted that the 
DEA is inadequate and the Secretary should not rely on it to exclude 
any areas from critical habitat.
    Our Response: As described in Chapter 5 of the DEA, critical 
habitat designation is not expected to generate: (1) Additional 
conservation measures for the Buena Vista Lake shrew; (2) changes in 
economic activity; or (3) changes to land management. Absent any 
changes in the above, incremental economic benefits are not expected to 
result from the designation of critical habitat.
    (23) Comment: One comment stated that the term ``ancillary 
benefits'' in the DEA appears to minimize the importance of all 
coincident benefits of critical habitat designation.
    Our Response: The DEA defines ``ancillary benefits'' consistent 
with the Office of Management and Budget's (OMB's) Circular A-4, which 
provides Federal Agencies with guidelines for conducting economic 
analyses of regulations. Specifically section 2.3.3 of the DEA defines 
ancillary benefits as, ``favorable impacts of a rulemaking that are 
typically unrelated, or secondary, to the statutory purpose of the 
rulemaking.'' Chapter 5 of the DEA clarifies that the primary intended 
purpose of the critical habitat designation is to support the 
conservation of the Buena Vista Lake shrew. Thus, any other potential 
benefits would be considered ancillary benefits of the rulemaking.
    (24) Comment: Two comments stated that the DEA does not analyze the 
cumulative effects of critical habitat designation. One commenter 
stated that there would be indirect and cumulative economic and social 
effects of lost local water resources. In addition, a comment stated 
that there will be cumulative effects on water management activities, 
farming, and other activities on neighboring properties of designating 
all four units collectively.
    Our Response: Chapter 1 of the DEA describes that the geographic 
scope of the analysis includes all the units of proposed critical 
habitat, as described in the proposed rule. The analysis therefore 
considers the potential economic impact of designating all units as 
critical habitat for the species. Further, as discussed in Chapter 4 of 
the DEA, we are unable to foresee a circumstance in which critical 
habitat designation would change the conservation efforts recommended 
for the shrew. Consequently, the incremental impacts quantified in the 
DEA are limited to additional administrative costs of section 7 
consultation. Critical habitat designation is not anticipated to affect 
water management, farming and other activities within or adjacent to 
the critical habitat area.
    (25) Comment: One comment stated that the economic analysis should 
include all occupied and suitable unoccupied habitat and not rely on 
the draft critical habitat as described in the proposed rule. Another 
comment asserted that the economic analysis fails to include all 
critical habitat areas for the recovery of the species.
    Our Response: The economic analysis evaluates potential impacts of 
critical habitat designation in the areas in which we have proposed 
critical habitat in the proposed rule. The proposed rule did not 
include any proposed, unoccupied habitat for the species; accordingly, 
the economic analysis does not consider impacts of designating these 
areas as critical habitat. We have determined that the areas designated 
as critical habitat are sufficient to meet the standards of conserving 
the species and its habitat and other unoccupied areas were not needed 
for the species.
    (26) Comment: One comment stated that the conclusion in the DEA 
that conservation efforts under the Draft Kern County Valley Floor 
Habitat Conservation Plan (HCP) are unlikely to change due to critical 
habitat designation is incorrect. The comment asserts that, when 
critical habitat is designated, we and California Department of Fish 
and Wildlife staff review designated lands under heightened scrutiny, 
resulting in greater survey, take avoidance, and mitigation 
requirements for any potential project. Similarly, the comment states, 
both agencies will view properties that are proximate to critical 
habitat lands as being subject to similar scrutiny and will be 
concerned about higher mitigation and avoidance requirements.
    Our Response: As discussed in Section 4.2.6 of the DEA, we 
anticipate that the same conservation efforts for the shrew will be 
recommended for the Kern County Valley Floor HCP regardless of whether 
critical habitat is designated. Specifically, because locations 
occupied by the shrew are so rare, we expect to recommend protection of 
such locations for the HCP whether or not CH is designated. As such, 
critical habitat is not expected to change any survey, mitigation, or 
other conservation efforts that we recommend be incorporated into the 
HCP for the shrew.
    (27) Comment: According to one comment provided on the DEA, 
critical habitat could adversely affect agricultural productivity and 
the ability of the affected agricultural and urban water districts to 
operate if water deliveries are restricted. The comment further stated 
that the entire City of Bakersfield Kern Fan Water Recharge Unit is 
proposed for designation and that designation would result in 
restricted groundwater recharge practices that would adversely affect 
the ability of the City to provide adequate public drinking water 
supplies. The commenter stated that the analysis should consider the 
economic impacts of restricting water supply operations and maintenance 
upstream of the proposed critical habitat.
    Our Response: As described in Section 3.3 of the DEA, the City of 
Bakersfield owns all acres included in proposed Unit 3, which is 
located entirely within the Kern Fan Water

[[Page 39843]]

Recharge Area (KFWRA). The City operates the site for the purposes of 
flood control, wildlife conservation, limited access public uses, water 
conservation, and mineral production. In 2004, the City developed a 
Buena Vista Lake shrew management plan for the site and has managed the 
area according to this plan since 2005, including surveying for the 
species, limiting public access, terminating livestock grazing, zoning 
and managing the entire area as open space, and engaging in water-
spreading activities. We do not expect review of this management plan 
following critical habitat to result in recommendations for changes in 
shrew conservation. As a result, no additional restrictions to 
groundwater recharge practices or water supply operations and 
maintenance are anticipated to result from the designation of critical 
habitat for the shrew.
    (28) Comment: One comment expressed concern that the critical 
habitat designation may adversely affect the duties of the District to 
manage the Outlet Canal of the Coles Levee in Unit 4 for the purposes 
of water delivery and flood control. The comment noted that the current 
management regime of the Canal and Coles Levee Preserve already provide 
conservation benefits to the shrew and that the District is in the 
process of preparing a detailed management plan for the shrew. In 
addition, the comment stated that the current management of the 
artificial pond on the Coles Levee Preserve according to a conservation 
easement held by the California Department of Fish and Wildlife is 
designated to benefit the shrew.
    Our Response: Section 3.4 of the DEA identifies Aera Energy, Inc. 
as the manager of 223 ac (90 ha) of proposed critical habitat in Unit 
4. Consistent with this comment letter, the Environmental Health and 
Safety Advisor of Aera Energy, Inc. confirmed that the proposed 
critical habitat is located in a slough within which preserve managers 
implement conservation for several species, including the shrew. The 
DEA also describes that wells within the proposed Unit are managed 
under a conservation easement agreement that incorporates conservation 
practices that are similar to those that we recommended through section 
7 consultation for other activities. This comment letter adds that 
management of the Outlet Canal also considers impacts on shrews. It is 
because activities in Unit 4 are already managed for the conservation 
of the species that no section 7 consultations have taken place in Unit 
4 that consider the shrew. In the case that a Federal nexus exists 
triggering section 7 consultation on activities in this area in the 
future, we may review these activities, including operations of the 
Outlet Canal or management of the artificial pond or energy 
developments. However, we do not anticipate that critical habitat 
designation will significantly change the outcome of any section 7 
consultations. Although we will fully evaluate the effects of future 
Federal actions being consulted upon to ensure that the action does not 
result in adverse modification to designated critical habitat, we 
expect any recommendations we make to avoid jeopardy to the species 
will also in most instances avoid adverse modification to critical 
habitat.
    (29) Comment: One comment noted that the DEA statement in section 
3.4 that, ``Unit 4 is located entirely within the Coles Levee Ecosystem 
Preserve,'' is incorrect. The commenter stated that therefore the 
economic analysis likely ignores economic impacts to other landowners 
and easement holders in Unit 4.
    Our Response: The referenced sentence in Section 3.4 is corrected 
in the Final Economic Analysis (FEA) to reflect that Aera Energy 
manages a portion of Unit 4 as the Coles Levee Ecosystem Preserve. 
Activities occurring within Unit 4, however, are currently managed with 
shrew conservation in mind under various conservation easements and 
management plans, as described above. Further, we expect that any 
conservation recommendations we may make as part of consultation on 
activities in this area in the future would be made regardless of 
critical habitat designation. Consequently, the error highlighted in 
this comment does not affect the conclusions of the DEA.
    (30) Comment: A comment stated that the DEA underestimates economic 
impacts of critical habitat designation, asserting that critical 
habitat designation restricts the free use of property, including water 
and water rights, and therefore imposes an opportunity cost on property 
owners.
    Our Response: Chapter 2 of the DEA describes the regulatory 
requirements of critical habitat designation as follows: ``When 
critical habitat is designated, section 7 requires Federal agencies to 
ensure that their actions will not result in the destruction or adverse 
modification of critical habitat (in addition to considering whether 
the actions are likely to jeopardize the continued existence of the 
species).'' As such, critical habitat designation does not directly 
restrict or regulate private activities occurring on private lands 
absent Federal funding or permitting. In the case of Buena Vista Lake 
shrew critical habitat, activities that may result in the destruction 
or adverse modification of critical habitat would likely also result in 
jeopardy to the species. Critical habitat is therefore not expected to 
result in additional recommendations for conservation for the species 
and does not further restrict, for example water rights, beyond effects 
generated by the listing of the species. The DEA acknowledges that, in 
some cases, critical habitat may generate indirect impacts on property 
owners, for example in the case that the designation triggers changes 
in State or local regulations or land management practices. The DEA did 
not, however, identify such changes as likely to result from critical 
habitat designation for the Buena Vista Lake shrew.
    (31) Comment: A comment stated that the DEA fails to address the 
economic report prepared by Dr. Sunding and submitted as a comment to 
the previous (2004) proposed critical habitat and associated economic 
analysis. Dr. Sunding concluded that critical habitat for the Buena 
Vista Lake shrew could ``have the potential to exceed $21.8 million 
annually with a present value of over $311 million.''
    Our Response: The analysis developed by Dr. Sunding is based on 
assumptions regarding restrictions on water access due to the 
designation of critical habitat. Specifically, the analysis considers a 
scenario in which the banked water from the Kern River and Friant-Kern 
Canal in Unit 3 are made unavailable to the Pioneer Project, Kern Water 
Bank, and Berrenda Mesa Project. The analysis then estimates the 
``replacement value'' of this water at a rate of $209 per acre-foot for 
a total of $9.1 million per year (43,337 acre-feet banked annually). 
The analysis then evaluates ``secondary impacts'' resulting from timing 
of water supply and economic dislocation, assuming a revenue multiplier 
of 2.2 (essentially bringing the $209 per acre-foot estimate to $500 
per acre-foot). The resulting present-value impacts are in excess of 
$311 million ($21.8 million annually).
    As described above and detailed in Chapter 4 of the DEA, critical 
habitat designation is not anticipated to result in additional 
conservation for the shrew (i.e., we do not anticipate critical habitat 
to result in additional restrictions on water access). The assumption 
that the banked water from the Kern River and Friant-Kern Canal in Unit 
3 would be inaccessible because of critical habitat designation is 
therefore not an expected impact of critical habitat designation. 
Consequently, the results of Dr.

[[Page 39844]]

Sunding's evaluation are not considered impacts of critical habitat 
designation in the DEA.
    (33) Comment: According to one comment, proposed Unit 5 consists of 
two separate legal parcels separated by a north south canal that is 
capable of receiving water flows through the New Rim Ditch and 
conveying supplemental water to 940 ac (380 ha) of nearby land. In the 
case that the designation results in the canal becoming not usable, up 
to 6,400 ac (2,590 ha) of farm ground will be affected. The comment 
asserted that this could result in hundreds of thousands of dollars in 
reconstruction costs for an alternate delivery system in addition to 
the impact on the 6,400 ac (2,590 ha) of farmland.
    Our Response: As described above and in Chapter 4 of the DEA, 
critical habitat designation for the shrew is not expected to result in 
additional restrictions on water use or access. As such, we do not 
anticipate the need to reconstruct alternate delivery systems because 
of critical habitat designation.
    (34) Comment: One comment stated that the DEA fails to appreciate 
the loss inherent in the need for buffer zones around the critical 
habitat, which in essence become ``unofficial'' critical habitat 
requiring another buffer and so on.
    Our Response: The DEA evaluates potential economic impacts on 
projects or activities that may result in the destruction or adverse 
modification of critical habitat. This includes projects or activities 
outside of the critical habitat area that may affect the primary 
constituent elements within the critical habitat area. The designation 
of critical habitat does not inherently result in the creation of 
buffer zones in areas adjacent to the designated critical habitat, and 
so would not properly be a subject of analysis in the Economic Analysis 
at either the draft or final stage.
    (35) Comment: A comment submitted by Southern California Gas 
(SoCalGas) clarifies that the San Joaquin Valley (SJV) HCP, if 
finalized, will incorporate conservation for the Buena Vista Lake shrew 
as the species is known to occur in this area. The comment notes that 
page 3-13 of the DEA describes our uncertainty with respect to the 
nature of Buena Vista Lake shrew conservation measures that SoCalGas 
plans to incorporate into the HCP. SoCalGas commented that it intends 
to perform preactivity surveys in suitable Buena Vista Lake shrew 
habitat, establish exclusion zones around suitable habitat, and provide 
biological monitors during construction, as well as restore or 
compensate for disturbed habitat.
    Our Response: The FEA incorporates the clarifications from SoCalGas 
with respect to the SJV HCP.
    (36) Comment: One comment stated that the DEA does not recognize 
costs to ourselves resulting from the cycle of critical habitat 
rulemaking and litigation that we identified in the 2005 final rule as 
taking up a significant portion of the our budget.
    Our Response: The purpose of the economic analysis is to identify 
the incremental impacts associated with the designation of critical 
habitat. Although the costs of revising or re-doing critical habitat 
based on litigation is of concern and can require significant time and 
resources, we cannot predict when these costs may occur or to what 
degree in the future. Additionally, identifying and including these 
types of costs are outside the scope of our requirements for 
determining the economic impacts for a specific critical habitat 
designation.

Summary of Changes From the Proposed Rule

    In preparing our final designation of critical habitat for the 
Buena Vista Lake shrew, we reviewed comments received regarding the 
2009 proposed designation, the 2012 revised proposed designation, the 
initial DEA of 2011, and the revised DEA of 2013. We revised the map 
unit labels in our 2013 document noticing the availability of the 
revised DEA, and we keep those revised labels in this final 
designation. Additionally, this final designation reflects minor 
clarifications in the text of the 2012 revised proposal, as well as the 
following more substantive changes:
    (1) Under section 4(b)(2) of the Act, the Secretary is excluding 
proposed Unit 3 (the Kern Fan Recharge Unit). For more information, 
refer to Exclusions Based on Other Relevant Impacts, below.
    (2) We have refined our mapping boundaries by removing large canals 
lacking PCEs from Units 2 and 5 (Goose Lake and Coles Levee Units).
    (3) We evaluated any suggested changes and clarifications we 
received from the public during our public comment periods and 
incorporated those changes into this final designation as appropriate.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with ourselves, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or

[[Page 39845]]

biological features (1) which are essential to the conservation of the 
species and (2) which may require special management considerations or 
protection. For these areas, critical habitat designations identify, to 
the extent known using the best scientific and commercial data 
available, those physical or biological features that are essential to 
the conservation of the species (such as space, food, cover, and 
protected habitat). In identifying those physical or biological 
features within an area, we focus on the principal biological or 
physical constituent elements (primary constituent elements such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type) that are essential to the conservation of the species. 
Primary constituent elements are those specific elements of the 
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Buena Vista Lake shrew from studies of this species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the revised proposed rule to designate critical habitat published in 
the Federal Register on July 10, 2012 (77 FR 40706), and in the 
information presented below. Additional information can be found in the 
final listing rule published in the Federal Register on March 6, 2002 
(67 FR 10101); in the 2011 5-Year Review and in the Recovery Plan for 
Upland Species of the San Joaquin Valley, California (https://ecos.fws.gov). We have determined that the Buena Vista Lake shrew 
requires the following physical or biological features:

Space for Individual and Population Growth and Normal Behavior

    Historically, the Buena Vista Lake shrew was recorded in 
association with perennial and intermittent wetland habitats along 
riparian corridors, marsh edges, and other palustrine (marsh type) 
habitats in the southern San Joaquin Valley of California. The shrew 
presumably occurred in the moist habitat surrounding wetland margins in 
the Kern, Buena Vista, Goose, and Tulare Lakes on the valley floor 
below elevations of 350 feet (ft) (107 meters (m)) (Grinnell 1932, p. 
389; Hall 1981, p. 38; Williams and Kilburn 1984, p. 953; Williams 
1986, p. 13; Service 1998, p. 163). With the draining and conversion of 
the majority of the Buena Vista Lake shrew's natural habitat from 
wetland to agriculture, and the channelization of riparian corridors 
for water conveyance structures, the vegetative communities associated 
with the Buena Vista Lake shrew were lost or degraded, and nonnative 
plant species replaced those associated with the shrew (Grinnell 1932, 
p. 389; Mercer and Morgan, 1991 p. 9; Griggs 1992, p. 11; Service 1998, 
p. 163). Open water does not appear to be necessary for the survival of 
the shrew. The habitat where

[[Page 39846]]

the shrew has been found contains areas with both open water and mesic 
environments (Maldonado 1992, p. 3; Williams and Harpster, 2001 p. 12). 
However, the availability of water contributes to improved vegetation 
structure and diversity, which improves cover availability. The 
presence of water also attracts potential prey species, improving prey 
diversity and availability.
    Current survey information has identified eight areas where the 
Buena Vista Lake shrew has been found in recent years (Maldonado 2006, 
p. 16; Williams and Harpster 2001, p. 1; ESRP 2005, p. 11): the former 
Kern Lake Preserve (Kern Preserve) on the old Kern Lake bed, the Kern 
Fan water recharge area, the Coles Levee Ecological Preserve (Coles 
Levee), the Kern National Wildlife Refuge (Kern NWR), the Goose Lake 
slough bottoms (Goose Lake), the Atwell Island land retirement 
demonstration site (Atwell Island), the Lemoore Wetland Reserve, and 
the Semitropic Ecological Reserve (also known as Main Drain or Chicca 
and Sons). Based on most areas in which Buena Vista Lake shrews have 
been found, the shrew appears to strongly prefer marshy areas or areas 
with moist riparian habitat.
    The single occupied site lacking these characteristics is Atwell 
Island, which has no standing water or riparian vegetation, and which 
is surrounded by intensively farmed cropland. As discussed in our 
proposed critical habitat designation (77 FR 40706), we speculate that 
shrews may persist at Atwell Island by inhabiting rodent burrows and 
deep cracks in the soil, both of which may provide additional moisture, 
invertebrate prey, and cover for the shrews. However, we currently lack 
sufficient information to determine the long-term suitability of this 
habitat type for Buena Vista Lake shrews, and do not currently believe 
that this type of habitat is essential to the conservation of the 
species and so have not designated the Atwell Island site as critical 
habitat.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    The specific feeding and foraging habits of the Buena Vista Lake 
shrew are not well known. In general, shrews primarily feed on insects 
and other animals, mostly invertebrates (Harris 1990, p. 2; Maldonado 
1992, p. 6). Food probably is not cached and stored, so the shrew must 
forage periodically day and night to maintain its high metabolic rate 
(Burt and Grossenheider 1964, p. 3).
    Vegetation in the marshy and moist riparian communities described 
above provide a diversity of structural layers and plant species and 
likely contribute to the availability of prey for shrews. Therefore, 
conservation of the shrew should include consideration of the habitat 
needs of prey species, including structural and species diversity and 
seasonal availability. Shrew habitat must provide sufficient prey base 
and cover from which to hunt in an appropriate configuration and 
proximity to nesting sites. The shrew feeds indiscriminately on 
available larvae and adults of several species of aquatic and 
terrestrial insects. An abundance of invertebrates is associated with 
moist habitats, such as wetland edges, riparian habitat, or edges of 
lakes, ponds, or drainages that possess a dense vegetative cover (Owen 
and Hoffmann 1983, p. 3). Therefore, based on the information above, we 
identify a consistent and diverse supply of invertebrate prey to be an 
essential component of the biological features essential for the 
conservation of the Buena Vista Lake shrew.

Cover or Shelter

    The vegetative communities associated in general with Buena Vista 
Lake shrew occupancy are characterized by the presence of (but are not 
limited to): Populus fremontii (Fremont cottonwood), Salix spp. 
(willows), Salicornia spp. (glasswort), Elymus spp. (wild-rye grass), 
Juncus spp. (rush grass), and other emergent vegetation (Service 1998, 
p. 163). These communities are present at all sites but Atwell Island. 
In addition, Maldonado (1992, p. 6) found shrews in areas of moist 
ground that was covered with leaf litter and near other low-lying 
vegetation, branches, tree roots, and fallen logs; or in areas with 
cool, moist soil beneath dense mats of vegetation that were kept moist 
by proximity to the water line. He described specific habitat features 
that would provide suitable habitat for the shrew: (1) Dense vegetative 
cover; (2) a thick, three-dimensional understory layer of vegetation 
and felled logs, branches, and detritus or debris; (3) heavy understory 
of leaf litter with duff overlying soils; (4) proximity to suitable 
moisture; and (5) a year-round supply of invertebrate prey. Williams 
and Harpster (2001, p. 12) determined that, although moist soil in 
areas with an overstory of willows or cottonwoods appeared to be 
favored, they doubted that such overstory was essential.
    The communities in which Buena Vista Lake shrews have primarily 
been found are characterized by dense mats of leaf litter or herbaceous 
vegetation. The insect prey of the shrew also thrives in the dense 
matted vegetation. Although shrews have also been found at Atwell 
Island, in an area largely devoid of vegetation but characterized by 
deep cracks in the soils, little is currently known of the shrew or 
habitat needs at this site.
    The Buena Vista Lake shrew is preyed upon by small mammalian 
predators as well as by avian predators (Maldonado 1992, p. 7). Dense 
vegetative structure provides the cover or shelter essential for 
evading predators. It also serves as habitat for breeding and 
reproduction, and allows for the protection and rearing of offspring 
and the growth of adult shrews. Therefore, based on the information 
above, we identify riparian and wetland communities, and areas with 
suitable soil moisture that support a complex vegetative structure with 
a thick cover of leaf litter or dense mats of low-lying vegetation to 
be the essential components of the physical and biological features 
essential to the conservation of the species.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Little is known about the reproductive needs of the Buena Vista 
Lake shrew. The breeding season begins in February or March and ends in 
May or June, but can be extended depending on habitat quality and 
available moisture (Paul Collins 2000, p. 12). The edges of wetland or 
marshy habitat provide the shrew with a sheltered and hospitable 
environment, and provide a prey base that enables the shrew to give 
birth and raise its young. The dense vegetative understory also 
provides young with cover from predators. Dense vegetation also allows 
for the soil moisture necessary for a consistent supply of terrestrial 
and aquatic insect prey (Freas 1990, p. 8; Kirkland 1991, p. 15; 
Maldonado 1992, p. 3; Maldonado et al. 1998, p. 1; Ma and Talmage 2001, 
p. 123).

Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species

    Preserving what little habitat remains for the Buena Vista Lake 
shrew is crucial to the survival of the species. Many factors 
negatively impact and restrict the shrew and its habitat, including 
selenium toxicity, habitat fragmentation, urban development, and the 
effects of climate change. The combined effects of climate change and 
habitat fragmentation have put immense pressure on species in highly 
altered or developed areas like the San Joaquin

[[Page 39847]]

Valley (Hannah et al. 2005, p. 4). Development, draining of wetlands, 
or the conversion of areas to agriculture has restricted the species to 
small islands of habitat with little to no connectivity or opportunity 
for expansion of its range. Climate change is a particular challenge 
for a variety of species because the interaction between additional 
stressors associated with climate change and current stressors could 
push species beyond their ability to survive (Lovejoy 2005, pp. 325-
326), including the Buena Vista Lake shrew.

Climate Change

    Our analyses under the Endangered Species Act include consideration 
of ongoing and projected changes in climate. The terms ``climate'' and 
``climate change'' are defined by the Intergovernmental Panel on 
Climate Change (IPCC). The term ``climate'' refers to the mean and 
variability of different types of weather conditions over time, with 30 
years being a typical period for such measurements, although shorter or 
longer periods also may be used (IPCC 2007a, p. 78). The term ``climate 
change'' thus refers to a change in the mean or variability of one or 
more measures of climate (such as, temperature or precipitation) that 
persists for an extended period, typically decades or longer, whether 
the change is due to natural variability, human activity, or both (IPCC 
2007a, p. 78).
    Scientific measurements spanning several decades demonstrate that 
changes in climate are occurring, and that the rate of change has been 
faster since the 1950s. Examples include warming of the global climate 
system, and substantial increases in precipitation in some regions of 
the world and decreases in other regions. (For these and other 
examples, see IPCC 2007a, p. 30; and Solomon et al. 2007, pp. 35-54, 
82-85). Results of scientific analyses presented by the IPCC show that 
most of the observed increase in global average temperature since the 
mid-20th century cannot be explained by natural variability in climate, 
and is ``very likely'' (defined by the IPCC as 90 percent or higher 
probability) due to the observed increase in greenhouse gas (GHG) 
concentrations in the atmosphere as a result of human activities, 
particularly carbon dioxide emissions from use of fossil fuels (IPCC 
2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al. 2007, pp. 
21-35). Further confirmation of the role of GHGs comes from analyses by 
Huber and Knutti (2011, p. 4), who concluded it is extremely likely 
that approximately 75 percent of global warming since 1950 has been 
caused by human activities.
    Scientists use a variety of climate models, which include 
consideration of natural processes and variability, as well as various 
scenarios of potential levels and timing of GHG emissions, to evaluate 
the causes of changes already observed and to project future changes in 
temperature and other climate conditions (Meehl et al. 2007, entire; 
Ganguly et al. 2009, pp. 11555, 15558; Prinn et al. 2011, pp. 527, 
529). All combinations of models and emissions scenarios yield very 
similar projections of increases in the most common measure of climate 
change, average global surface temperature (commonly known as global 
warming), until about 2030. Although projections of the magnitude and 
rate of warming differ after about 2030, the overall trajectory of all 
the projections is one of increased global warming through the end of 
this century, even for the projections based on scenarios that assume 
that GHG emissions will stabilize or decline. Thus, there is strong 
scientific support for projections that warming will continue through 
the 21st century, and that the magnitude and rate of change will be 
influenced substantially by the extent of GHG emissions (IPCC 2007a, 
pp. 44-45; Meehl et al. 2007, pp. 760-764 and 797-811; Ganguly et al. 
2009, pp. 15555-15558; Prinn et al. 2011, pp. 527, 529) (also see IPCC 
2007b, p. 8, for a summary of other global projections of climate-
related changes, such as frequency of heat waves and changes in 
precipitation; and IPCC 2011 (entire) for a summary of observations and 
projections of extreme climate events).
    Various changes in climate may have direct or indirect effects on 
species. These effects may be positive, neutral, or negative, and they 
may change over time, depending on the species and other relevant 
considerations, such as interactions of climate with other variables 
(e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). Identifying 
likely effects often involves aspects of climate change vulnerability 
analysis. Vulnerability refers to the degree to which a species (or 
system) is susceptible to, and unable to cope with, adverse effects of 
climate change, including climate variability and extremes. 
Vulnerability is a function of the type, magnitude, and rate of climate 
change and variation to which a species is exposed, its sensitivity, 
and its adaptive capacity (IPCC 2007a, p. 89; see also Glick et al. 
2011, pp. 19-22). There is no single method for conducting such 
analyses that applies to all situations (Glick et al. 2011, p. 3). We 
use our expert judgment and appropriate analytical approaches to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    Current climate change projections for terrestrial areas in the 
Northern Hemisphere indicate warmer air temperatures, more intense 
precipitation events, and increased summer continental drying (Field et 
al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 
6; IPCC 2007, p. 1181). Climate change may lead to increased frequency 
and duration of severe storms and droughts (McLaughlin et al. 2002, p. 
6074; Cook et al. 2004, p. 1015; Golladay et al. 2004, p. 504). Climate 
projections for smaller subregions such as California remain uncertain. 
However, modeling of hydrological responses to potential climate change 
in the San Joaquin watershed suggests that the hydrological system is 
very sensitive to climatic variations on a monthly and annual basis, 
with changes in crop phenology and water use suggested (Ficklin et al. 
2009, pp. 25-27).
    Use of downscaled climate modeling for the Sacramento-San Joaquin 
River Basin shows projected warming, with substantial decadal and 
interannual variability and altered streamflow seasonality in the 
southern San Joaquin Valley, suggesting that water infrastructure 
modifications would be needed to address changing conditions 
(Vanrheenen et al. 2004, pp. 1, 265-279). Due to the Buena Vista Lake 
shrew's reliance on dense riparian vegetation and adequate moisture in 
wetland areas, either increased drying of its home range or changes in 
water delivery practices that reduce water runoff could negatively 
affect the shrew, while increases in runoff could benefit the shrew. 
Regardless of the uncertainty of the specific effects of climate change 
on the Beuna Vista Lake shrew, the current information does point to 
the general negative effects of areas being dryer and more 
unpredictable as far as precipitation and water availability. As a 
result, the effects of climate change overall will most likely be 
negative for the shrew and its habitat.
Primary Constituent Elements for the Buena Vista Lake Shrew
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the shrew in areas occupied at the time of listing, 
focusing on the features' primary constituent elements. Primary 
constituent elements are those specific elements of the physical or 
biological features that provide for a species' life-

[[Page 39848]]

history processes and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to the shrew are:
    Permanent and intermittent riparian or wetland communities that 
contain:
     A complex vegetative structure with a thick cover of leaf 
litter or dense mats of low-lying vegetation. Associated plant species 
can include, but are not limited to, Fremont cottonwoods, willows, 
glasswort, wild-rye grass, and rush grass. Although moist soil in areas 
with an overstory of willows or cottonwoods appears to be favored, such 
overstory may not be essential.
     Suitable moisture supplied by a shallow water table, 
irrigation, or proximity to permanent or semipermanent water; and
     A consistent and diverse supply of prey. Although the 
specific prey species used by the Buena Vista Lake shrew have not been 
identified, ornate shrews are known to eat a variety of terrestrial and 
aquatic invertebrates, including amphipods, slugs, and insects.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether specific areas 
within the geographical area occupied by the species at the time of 
listing contain features that are essential to the conservation of the 
species and which may require special management considerations or 
protection (16 U.S.C. 1536(3)(5)(A)(i)).
    All designated critical habitat units will require some level of 
management to address the current and future threats to the physical 
and biological features essential to the conservation of the Buena 
Vista Lake shrew. Special management considerations or protection may 
be required to minimize habitat destruction, degradation, or 
fragmentation associated with such threats as the following: Changes in 
the water supply allocations, water diversions, flooding, oil and gas 
extraction, nonnative vegetation, and agriculture. For example, the 
Coles Levee area is within the boundaries of a proposed oil and gas 
exploration proposal. Agricultural pressures to convert land to 
agriculture remain in the southern San Joaquin Valley, with 
agricultural conversion to orchards noted to have occurred recently in 
the general area.
    The designated units are located in areas characterized by large-
scale agricultural production, and consequently, the units may be 
exposed to a number of pesticides, which could detrimentally impact the 
species. The Buena Vista Lake shrew currently exists on small remnant 
patches of natural habitat in and around the margins of a landscape 
that is otherwise dominated by agriculture. The Buena Vista Lake shrew 
could be indirectly exposed to pesticides from drift during spraying of 
crops where pesticide application measures to prevent drift are not 
followed, or potentially directly exposed during herbicide treatment of 
canal zones and ditch banks, wetland or riparian edges, or roadsides 
where shrews might exist. Reduced reproduction in Buena Vista Lake 
shrews could be directly caused by pesticides ingested through 
grooming, and secondarily from feeding on contaminated insects 
(Sheffield and Lochmiller 2001, p. 284). A variety of toxicants, 
including pesticides and heavy metals, have been shown to negatively 
affect insectivores, including shrews, that have a high basal 
metabolism and tight energy balance. Treatment-related decreases in 
invertebrate prey availability may be especially significant to such 
insectivore populations (Ma and Talmage 2001, pp. 133-152).
    The Buena Vista Lake shrew also faces high risks from random 
catastrophic events (such as floods or drought) (Service 1998, p. 163). 
The low numbers of Buena Vista Lake shrews located in small isolated 
areas increases the risk of a random catastrophic event eliminating 
entire populations or severely diminishing Buena Vista Lake shrew 
numbers to the point that recovery is precluded. These threats and 
others mentioned above could render the habitat less suitable for the 
Buena Vista Lake shrew by washing away leaf litter and complex 
vegetation structure (floods) or drying wetland habitat so that 
vegetative and prey communities die (drought), and special management 
may be needed to address these threats.
    In summary, the critical habitat units identified in this 
designation may require special management considerations or protection 
to provide a functioning hydrological regime to maintain the requisite 
riparian and wetland habitat, which is essential in providing the space 
and cover necessary to sustain the entire life-cycle needs of the 
shrew, as well as its invertebrate prey. Changes in water supply could 
result in the alteration of the moisture regime, which could lead to 
reduced water quality or hydroperiod, loss of suitable invertebrate 
supply for feeding, and loss of complex vegetative structure for cover. 
The units may also require special management considerations due to 
ongoing pressures for agricultural conversion and oil and gas 
exploration, and pesticide use, and vulnerabilities associated with low 
population size and population fragmentation.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we used the best 
scientific data available to designate critical habitat. We reviewed 
available information pertaining to the habitat requirements of this 
species. We designated units based on their possession of sufficient 
elements of physical or biological features being present to support 
the shrew's life processes.
    In accordance with the Act and its implementing regulation at 50 
CFR 424.12(e), we considered whether designating additional areas--
outside those occupied at the time of listing--would be necessary to 
ensure the conservation of the species. At the time of listing, we were 
aware of four locations (Kern Lake, Kern National Wildlife Refuge, 
Coles Levee, and the Kern Fan Water Recharge Area) where the Buena 
Vista Lake shrew was extant, but we also noted that additional remnant 
patches of wetland and riparian habitat within the Tulare Basin had not 
been surveyed and might support the shrew (67 FR 10101, 10103). We 
considered the geographical area occupied by the species to include all 
areas of remnant wetland and riparian habitat within the Tulare Basin. 
Shrews were also known from Atwell Island, Tulare County (Williams and 
Harpster 2001, pp. 13, 14), but had not been identified as Buena Vista 
Lake shrews at that time. In January 2003, a fifth site, Goose Lake, 
was surveyed and Buena Vista Lake shrews were also identified at this 
location (ESRP 2004, p. 8). The Goose Lake Unit was included in the 
original proposal to designate critical habitat (69 FR 69578). The 
Lemoore and Semitropic sites were first surveyed for the Buena Vista 
Lake shrew in April 2005, and Buena Vista Lake shrews were captured at 
these sites (ESRP 2005, p. 11, 12).
    We are only designating areas within the geographical area occupied 
by the species at the time of listing in 2002. We include as occupied 
those areas that meet the following two conditions: (1) They contain 
the physical or biological features that are essential to the 
conservation of the species, and (2) they were identified as occupied 
in the original listing documents or later confirmed to be occupied 
after 2002.

[[Page 39849]]

    We consider critical habitat units in which shrews were first found 
after 2002 (units 2, 6 and 7) to have been occupied at time of listing, 
because the likelihood of dispersal to such areas after listing is very 
low, and because no surveys had been conducted in those areas prior to 
listing. Shrews, in general, have small home ranges in which they spend 
most of their lives, and generally exhibit a high degree of site-
attachment. Males and juveniles of some species have been documented to 
disperse during the breeding season, with movement within a season 
varying between species from under 10 feet (a few meters) to, in one 
case, documented movement of 0.5 mi (800 meters) within a year 
(Churchfield 1990, pp. 55, 56). Because shrews generally only live a 
single year, half a mile would be the most we would reasonably expect a 
group of shrews (or a pregnant female) to disperse. No critical habitat 
unit is in such close proximity to other units or occupied areas. 
Accordingly, any shrew populations found in a given unit after listing 
can be assumed to have been present in those areas prior to listing, 
barring evidence to the contrary such as prelisting surveys. All 
proposed units retain wetland or riparian features and are within the 
Tulare Basin, the described historical range of the Buena Vista Lake 
shrew.
    We identified the designated lands based on the presence of the 
primary constituent elements described above, coupled with occupancy by 
the shrew (as established by sighting of shrews at the location). These 
criteria yielded seven units, which we proposed for designation on July 
10, 2012 (77 FR 40706). As discussed above, the only occupied site not 
proposed for designation was Atwell Island, because of its lack of the 
physical or biological features determined to be essential to the 
conservation of the species. Because we consider all designated units 
to have been occupied at the time of listing, we consider them to meet 
all the first prong of the Act's definition of critical habitat (16 
U.S.C. (3)(5)(A)(i), see Background section above).
    We also consider all such designated areas to be essential for the 
conservation of the shrew. Within the historical range of the shrew, 
these seven units represent the only known remaining areas that contain 
both extant shrew populations and the PCEs on which the conservation of 
those populations depends. Additionally, by protecting a variety of 
habitats and conditions that contain the PCEs, we will increase the 
ability of the shrew to survive stochastic environmental events (fire, 
drought, or flood), or demographic (low recruitment), or genetic 
(inbreeding) problems. Suitable habitat within the historical range is 
limited, although conservation of substantial areas of remaining 
habitat in the Semitropic area is expected to benefit the shrew. 
Remaining habitats are vulnerable to both anthropogenic and natural 
threats. Also, these areas provide habitats essential for the 
maintenance and growth of self-sustaining populations of shrews 
throughout their range. Because all the units are essential to the 
conservation of the shrew, any units that may subsequently be 
determined to have been unoccupied at time of listing (based on new 
information, for instance), will continue to function as critical 
habitat under the second prong of the Act's critical habitat definition 
(16 U.S.C. (3)(5)(A)(ii)).

Methodology Overview

    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12, we used the best scientific and commercial data available to 
determine the specific areas within the geographical area occupied by 
the species at the time of listing, on which are found those physical 
and biological features that are essential to the conservation of the 
shrew and which may require special management. This included data and 
information contained in, but not limited to, the proposed and final 
rules listing the shrew (65 FR 35033, June 1, 2000; 67 FR 10101, March 
6, 2002); the Recovery Plan for Upland Species of the San Joaquin 
Valley, California (Service 1998); the original proposed critical 
habitat designation (69 FR 51417, August 19, 2004); the 5-year status 
review for the shrew (Buena Vista Lake Ornate Shrew 5-Year Review: 
Summary and Evaluation, Service 2011); research and survey observations 
published in peer-reviewed articles (Grinnell 1932, 1933; Hall 1981; 
Owen and Hoffman 1983; Williams and Kilburn 1984; Williams 1986; 
Maldonado et al. 2001; and Maldonado et al. 2004); habitat and wetland 
mapping and other data collected and reports submitted by biologists 
holding section 10(a)(1)(A) recovery permits; biological assessments 
provided to us through section 7 consultations; reports and documents 
that are on file in our field office (Center for Conservation Biology 
1990; Maldonado et al. 1998; ESRP 1999; ESRP 2004; ESRP 2005; and 
Maldonado 2006); personal discussions with experts inside and outside 
of our agency with extensive knowledge of the shrew and habitat in the 
area; and information received during all previous comment periods.
    The five critical habitat units that we originally proposed were 
delineated by creating roughly defined areas for each unit by screen-
digitizing polygons (map units) using ArcView (Environmental Systems 
Research Institute, Inc. (ESRI)), a computer Geographic Information 
System (GIS) program. The polygons were created by overlaying current 
and historical species location points (California Natural Diversity 
Database (CNDDB) 2004), and mapped wetland habitats (California 
Department of Water Resources 1998) or other wetland location 
information, onto SPOT imagery (satellite aerial photography) (CNES/
SPOT Image Corporation 1993- 2000) and Digital Ortho-rectified Quarter 
Quadrangles (DOQQs) (USGS 1993-1998) for areas containing the Buena 
Vista Lake shrew. We utilized GIS data derived from a variety of 
Federal, State, and local agencies, and from private organizations and 
individuals. To identify where essential habitat for the shrew occurs, 
we evaluated the GIS habitat mapping and species occurrence information 
from the CNDDB (2004). We presumed occurrences identified in CNDDB to 
be extant unless there was affirmative documentation that an occurrence 
had been extirpated. We also relied on unpublished species occurrence 
data contained within our files, including section 10(a)(1)(A) reports 
and biological assessments, on site visits, and on visual habitat 
evaluation in areas known to have shrews, and in areas within the 
historical ranges that had potential to contain shrew habitat.
    For the five units, the polygons of identified habitat were further 
evaluated. Several factors were used to more precisely delineate the 
proposed critical habitat units from within these roughly defined 
areas. We reviewed any information in the Recovery Plan for Upland 
Species of the San Joaquin Valley, California (Service 1998), other 
peer-reviewed literature or expert opinion for the shrew to determine 
if the designated areas would meet the species' needs for conservation 
and whether these areas contained the appropriate primary constituent 
elements. We refined boundaries using satellite imagery, soil type 
coverages, vegetation land cover data, and agricultural or urban land 
use data to eliminate areas that did not contain the appropriate 
vegetation or associated native plant species, as well as features such 
as cultivated agriculture fields, development, and other areas that are 
unlikely to contribute to the conservation of the shrew.
    For the revision of the Coles Levee Unit, and the addition of the 
Lemoore

[[Page 39850]]

and Semitropic Units, we used shrew occurrence data collected by ESRP 
(Maldonado 2006, pp. 24-27; Phillips 2011), projected data within 
ArcView (ESRI), and delineated unit polygons. The polygons were created 
by overlaying species location points (Phillips 2011) onto NAIP imagery 
(aerial photography) (National Agriculture Imagery Program 2012) to 
identify wetland and vegetation features, such as vegetated canals, 
canals with cleared vegetation, vegetated sloughs, agricultural fields, 
and general changes in vegetation and land type. We also projected the 
original proposed units onto NAIP imagery and again used additional GIS 
data derived from a variety of Federal, State, and local agencies.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack physical or biological features for the shrew. The scale of 
the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final rule have been 
excluded by text in the rule and are not designated as critical 
habitat. Therefore, a Federal action involving these lands will not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R8-ES-2009-0062, on our Internet 
sites https://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A0DV, and at the field office responsible 
for the designation (see FOR FURTHER INFORMATION CONTACT above).

Final Critical Habitat Designation

    We are designating six units as critical habitat for the Buena 
Vista Lake shrew. The critical habitat areas described below constitute 
our best assessment at this time of areas that meet the definition of 
critical habitat. Those six units are: (1) Kern National Wildlife 
Refuge Unit, (2) Goose Lake Unit, (4) Coles Levee Unit, (5) Kern Lake 
Unit, (6) Semitropic Ecological Reserve Unit, and (7) Lemoore Wetland 
Reserve Unit. Note that proposed Unit 3 (the Kern Fan Water Recharge 
Unit) has been excluded from final designation due to the existing 
habitat conservation plan (see Exclusions, below). All units are 
occupied by the subspecies.

                         Table 1--Critical Habitat Units for the Buena Vista Lake Shrew
                   [Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                         Size of area in acres  (Hectares)
      Critical habitat unit      -------------------------------------------------------------------------------
                                       Total          Federal          State           Local          Private
----------------------------------------------------------------------------------------------------------------
1. Kern National Wildlife Refuge
 Unit
    Subunit 1A..................       274 (111)       274 (111)
    Subunit 1B..................         66 (27)         66 (27)
    Subunit 1C..................         47 (19)         47 (19)
2. Goose Lake Unit
    Subunit 2A..................        159 (64)  ..............  ..............  ..............        159 (64)
    Subunit 2B..................     1,115 (451)  ..............  ..............  ..............     1,115 (451)
Coles Levee Unit................       270 (109)  ..............         46 (19)           6 (2)        217 (88)
5. Kern Lake Unit
    Subunit 5A..................         34 (14)  ..............  ..............  ..............        34, (14)
    Subunit 5B..................         51 (21)  ..............  ..............  ..............         51 (21)
6. Semitropic Ecological Reserve       372 (151)  ..............      3456 (140)  ..............         27 (11)
 Unit...........................
7. Lemoore Wetland Reserve Unit.         97 (39)  ..............  ..............  ..............         97 (39)
    Total.......................   2,485 (1,006)       387 (157)       391 (159)           6 (2)    1,700 (688)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Buena Vista Lake shrew, 
below.

Unit 1: Kern National Wildlife Refuge Unit

    Unit 1 consists of a total of approximately 387 ac (157 ha). The 
Kern NWR Unit is completely comprised of Federal lands, and is located 
within the Kern NWR in northwestern Kern County. The Kern NWR Critical 
Habitat Unit consists of three subunits: Subunit 1A is approximately 
274 ac (111 ha); subunit 1B is 66 ac (27 ha); and subunit 1C is 47 ac 
(19 ha). The unit was occupied at the time of listing, is currently 
occupied, and contains the physical and biological features that are 
essential to the conservation of the shrew. Shrew habitat in Unit 1 
receives water from the California Aqueduct. One of the areas where 
Buena Vista Lake shrews are present has standing water from September 1 
through approximately April 15. After that time, the trees in the area 
may receive irrigation water so the area may possibly remain damp 
through May, but the area is dry for approximately 3 months during the 
summer. Another area of known Buena Vista Lake shrew occurrences has 
standing water from the second week of August through the winter and 
into early July, and is only dry for a short time during the summer. 
Buena Vista Lake shrew have been captured in remnant riparian and 
slough habitat at the Refuge (Service 2005, pp. 48, 49).
    Like all the critical habitat units we are designating here (see 
Criteria Used to Designate Critical Habitat, above), this unit is 
essential to the conservation of the shrew because it is occupied, and 
because the subunits include riparian habitat that contain the 
appropriate

[[Page 39851]]

physical or biological features and primary constituent elements for 
the shrew. Populus fremontii trees (Fremont cottonwood) and Salix spp. 
(willow) are the dominant woody plants in riparian areas. Additional 
plants include bulrushes, cattails, Juncus spp. (rushes), Heleocharis 
palustris (spike rush), and Sagittaria longiloba (arrowhead). Other 
plant communities on the refuge that support shrews are valley iodine 
bush scrub, dominated by iodine bush, seepweed, Frankenia salina 
(alkali heath), and salt-cedar scrub, which is dominated by Tamarix 
spp. (salt cedar). Both of these communities occupy sites with moist, 
alkaline soils.
    The Kern NWR completed a Comprehensive Conservation Plan (CCP) for 
the Kern and Pixley NWRs in February 2005 (Service 2005, pp. 1-103). 
The CCP provides objectives for maintenance and restoration of Buena 
Vista Lake shrew habitat on the Kern NWR. Objectives listed in the CCP 
include: completing baseline censuses and monitoring for the shrew; 
enhancement and maintenance of the 215-ac (87-ha) riparian habitat 
through regular watering to provide habitat for riparian species 
including the shrew; and additional restoration of 15 ac (6 ha) of 
riparian habitat along canals in a portion of the Refuge to benefit the 
shrew and riparian bird species (Service 2005, pp. 84, 85). The 
physical and biological features essential to the conservation of the 
species in this unit may require special management considerations or 
protection to address threats from nonnative species such as salt 
cedar, and from changes in hydrology due to offsite water management.

Unit 2: Goose Lake Unit

    The Goose Lake Unit consists of a total of approximately 1,274 ac 
(515 ha) of private land, and is located about 10 mi (16 km) south of 
Kern NWR in northwestern Kern County, in the historical lake bed of 
Goose Lake. The Goose Lake Unit consists of two subunits: Subunit 2A 
contains 159 ac (64 ha), and Subunit 2B contains 1,115 ac (451 ha). We 
consider that the unit was occupied at the time of listing and assume 
that it was not identified as occupied at that time because it had not 
yet been surveyed for small mammals. In January 2003, when the area was 
first surveyed for small mammals, approximately 6.5 ac (2.6 ha) of 
potential shrew habitat located along the Goose Lake sloughs were 
surveyed (ESRP 2004, p. 8), resulting in the capture of five Buena 
Vista Lake shrews. The maximum distance between two shrew captures was 
1.6 mi (2.6 km), suggesting that Buena Vista Lake shrews are widely 
distributed on the site. The unit has been determined to have the 
necessary physical or biological features present and therefore meets 
the definition of critical habitat under section 3(5)(A)(i) of the Act. 
The unit was included in the 2004 proposed critical habitat 
designation.
    Although we continue to presume that the unit meets the definition 
of critical habitat under section 3(5)(A)(i) of the Act (prong 1), we 
are also designating the unit under section 3(5)(A)(ii) of the Act 
(prong 2). As discussed above under Criteria Used To Identify Critical 
Habitat, even if subsequent evidence were to indicate that the unit was 
not occupied at the time of listing, it would remain critical habitat 
under the second prong of the Act's definition. The unit is essential 
for the conservation of the shrew because it is among the very few 
remaining areas that support both an extant shrew population and the 
physical and biological features necessary to conserve that population.
    In the past, Buena Vista Lake shrew habitat in this unit 
experienced widespread losses due to the diversion of water for 
agricultural purposes. However, small, degraded examples of freshwater 
marsh and riparian communities still exist in the area of Goose Lake 
and Jerry Slough (a portion of historical Goose Slough, an overflow 
channel of the Kern River), allowing shrews to persist in the area. 
Dominant vegetation along the slough channels includes frankenia, 
iodine bush, and seepweed. The northern portion of the unit consists of 
scattered mature iodine bush shrubs in an area that has relatively 
moist soils. The southern portion of the unit is characterized by a 
dense mat of saltgrass and clumps of iodine bush and seepweed. A 
portion of the unit currently exhibits inundation and saturation during 
the winter months. Dominant vegetation in these areas has included 
cattails, bulrushes, and saltgrass.
    The area consisting of the former bed of Goose Lake is managed by 
the Semitropic Water Storage District (WSD) as a ground-water recharge 
basin. Water from the California Aqueduct is transferred to the Goose 
Lake area in years of abundant water, where it is allowed to recharge 
the aquifer that is used for irrigated agriculture. At the time that 
the unit was originally proposed, the landowners, in cooperation with 
Ducks Unlimited, Inc. and Semitropic WSD, proposed to create and 
restore habitat for waterfowl in the unit area; wetland restoration 
that we expected to substantially increase the quantity and quality of 
Buena Vista Lake shrew habitat on the site. Restoration activities were 
completed in the last 6 years. The physical and biological features 
essential to the conservation of the species in this unit may require 
special management considerations or protection to address threats from 
nonnative species such as salt cedar, from recreational use, and from 
changes in hydrology due to water management and maintenance of water 
conveyance facilities. No conservation agreements currently cover this 
land.

Unit 3: Kern Fan Recharge Unit

    The Kern Fan Recharge Unit was excluded under section 4(b)(2) of 
the Act. See Exclusions section below.

Unit 4: Coles Levee Unit

    The Coles Levee Unit is approximately 270 ac (109 ha) in Kern 
County, of which 217 ac (88 ha) is owned by Aera Energy. An additional 
46 ac (19 ha) are State lands within the Tule Elk Reserve, and 6 ac (2 
ha) are part of a Kern County park. The unit is located northeast of 
Tupman Road near the town of Tupman, is directly northeast of the 
California Aqueduct, and is largely within the Coles Levee Ecosystem 
Preserve, which was established as a mitigation bank in 1992, in an 
agreement between Atlantic Richfield Company (ARCO) and CDFW. The 
preserve serves as a mitigation bank to compensate for the loss of 
habitat for listed upland species; the Buena Vista Lake shrew is not a 
covered species. ARCO had been issued an incidental take permit under 
section 10(a)(1)(B) of the Act for the Coles Levee Ecological Preserve 
Area (Service 2001, p. 1). However, the take authorization provided by 
the permit lapsed when ARCO sold the property to the current owner and 
the permit was not transferred. Habitat on the preserve consists mostly 
of highly degraded upland saltbush and mesquite scrub, and is 
interlaced with slough channels for the historical Kern River fan where 
the river entered Buena Vista Lake from the northeast. Most slough 
channels are dry except in times of heavy flooding. This site runs 
parallel to the Kern River bed and contains approximately 2 mi (3.2 km) 
of much-degraded riparian vegetation along the Kern River.
    A manmade pond, which was constructed in the late 1990s or early 
2000s, is located within the unit. Water from the adjacent oil fields 
is constantly pumped into the basin. Vegetation includes bulrushes, 
Urtica dioica (stinging nettle), Baccharis salicifolia (mulefat), salt 
grass, Atriplex lentiformis (quailbush), and Conium maculatum

[[Page 39852]]

(poison hemlock). A few willows and Fremont cottonwoods are scattered 
throughout the area.
    In the 2009 proposed rule (74 FR 53999. October 21, 2009), we 
reproposed 214 ac (87 ha) of critical habitat as the Coles Levee Unit. 
In this unit, Buena Vista Lake shrews were originally captured along a 
nature trail that was adjacent to a slough, and were close to the 
water's edge where there was abundant ground cover but little or no 
canopy cover. The unit is delineated in a general southeast to 
northwest direction, along both sides of the Kern River Flood Channel 
and Outlet Canal, which runs through the Preserve. During a 
construction project in the summer of 2011, two Buena Vista Lake shrews 
were found just north of the previous northerly boundary of the unit. 
We have therefore extended the unit boundary along both sides of the 
canal to encompass the contiguous riparian habitat to the point where 
water is no longer retained and riparian vegetation essentially stops, 
thereby including riparian habitat along the Outlet Canal within the 
Tule Elk Reserve.
    This unit is essential to the conservation of the species because 
it was occupied at the time of listing (67 FR 10102), is considered 
currently occupied, and includes willow-cottonwood riparian habitat 
that contains the PCEs. The physical and biological features essential 
to the conservation of the species in this unit may require special 
management considerations or protection to address threats from 
construction activities associated with projects to tie-in water 
conveyance facilities to the California Aqueduct and oil and gas-
related activities, including pipeline projects. The area adjacent to 
Coles Levee is a site of active gas and oil production, and the Coles 
Levee Unit is within an area that was recently proposed for additional 
oil and gas exploration.

Unit 5: Kern Lake Unit

    The Kern Lake Unit is approximately 85 ac (35 ha) in size, and is 
located at the edge of the historical Kern Lake, approximately 16 miles 
south of Bakersfield in southwestern Kern County. This unit lies 
between Hwy 99 and Interstate 5, south of Herring Road near the New Rim 
Ditch. The Kern Lake Unit consists of two subunits: Subunit 5A contains 
34 ac (14 ha), and Subunit 5B contains 51 ac (21 ha). The unit was 
occupied at the time of listing, is considered currently occupied, and 
contains the physical and biological features that are essential to the 
conservation of the Buena Vista Lake shrew. Since the advent of 
reclamation and development, the surrounding lands have seen intensive 
cattle and sheep ranching and, more recently, cotton and alfalfa 
farming. Currently, Kern Lake itself is generally a dry lake bed; 
however, the unit contains wet alkali meadows and a spring-fed pond 
known as ``Gator Pond,'' which is located near the shoreline of the 
lake bed. A portion of the runoff from the surrounding hills travels 
through underground aquifers, surfacing as artesian springs at the 
pond. The heavy clay soils support a distinctive assemblage of native 
species, providing an island of native vegetation situated among 
agricultural lands. The unit contains three ecologically significant 
natural communities: freshwater marsh, alkali meadow, and iodine bush 
scrub.
    This unit is essential to the conservation of the species because 
it is currently occupied and includes habitat that contains the PCEs 
identified for the shrew. The Kern Lake area was formerly managed by 
the Nature Conservancy for the J.G. Boswell Company, and was once 
thought to contain the last remaining population of the Buena Vista 
Lake shrew.
    The physical and biological features essential to the conservation 
of the species in this unit may require special management 
considerations or protection to address threats from reductions in 
water delivery, from effects of surrounding agricultural use, and from 
industrial and commercial development. This area does not have a 
conservation easement and is managed by the landowners. We are unaware 
of any plans to develop this site; however, it is within a matrix of 
lands managed for agricultural production.

Unit 6: Semitropic Ecological Reserve Unit

    The Semitropic Ecological Reserve Unit is approximately 372 ac (151 
ha) in size and is located about 7 mi (11 km) south of Kern NWR and 7 
mi (11 km) north of the Goose Lake Unit along the Main Drain Canal in 
Kern County. It is bordered on the south by State Route 46, 
approximately 2 mi (3 km) east of the intersection with Interstate 5. 
The CDFW holds 345 ac (140 ha) under fee title, and manages the area as 
part of the Semitropic Ecological Reserve. An additional 27 ac (11 ha) 
of the unit are private land.
    We consider that the unit was occupied at the time of listing and 
assume that it was not identified as occupied at that time because it 
had not yet been surveyed for small mammals (see Criteria Used To 
Identify Critical Habitat). Buena Vista Lake shrews were identified in 
the unit on April 27, 2005, when it was first surveyed for small 
mammals (ESRP 2005, pp. 10-13). At that time, Buena Vista Lake shrews 
were found in the southwestern portion of the unit, next to the Main 
Drain Canal. The unit has been determined to have the necessary PCEs 
present and therefore meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act. Although we presume that the unit meets 
the definition of critical habitat under section 3(5)(A)(i) of the Act, 
we are also designating the unit under section 3(5)(A)(ii) of the Act. 
Even if the unit was not occupied at the time of listing, it is 
essential for the conservation of the Buena Vista Lake shrew due to its 
location approximately midway between Units 1 and 2, and location near 
the southern edge of remnant natural wetland and riparian habitat. The 
unit is also essential for the conservation of the shrew because it is 
considered to be currently occupied, and contains a matrix of riparian 
and wetland habitat, including riparian habitat both along the canal 
and within and adjacent to oxbow and slough features.
    The major vegetative associations at the site are valley saltbush 
scrub and valley sink scrub. Valley saltbush scrub is found within the 
relatively well-drained soils at slightly higher elevations, and the 
valley sink scrub is found in the heavier clay soils. Dominant 
vegetation at the site includes Bromus diandrus (ripgut brome), Bromus 
madritensis ssp. rubens (red brome), Carex spp. (sedges), Juncus spp. 
(rushes), Polygonum spp. (knotweed), Polypogon monspeliensis 
(rabbitfoot grass), Rumex crispus (curly dock), and Vulpia myuros 
(foxtail fescue). There is a light overstory of cottonwoods at the 
trapping location where the most Buena Vista Lake shrews have been 
observed.
    The physical and biological features essential to the conservation 
of the species in this unit may require special management 
considerations or protection to address threats from ongoing oil and 
gas exploration and development, ongoing conversion of natural lands 
for agricultural development, changes in water management, weed control 
activities including use of herbicides, and the occurrence of range 
trespass in an open range area. Semitropic reserve lands are not fenced 
and are subject to occasional range trespass by sheep and cattle (CDFW 
2012). State lands in the unit were acquired under the provisions of 
the Metro Bakersfield Habitat Conservation Plan (HCP), and are managed 
for listed upland species. Location of the Main Drain Canal in the 
unit, and the presence of wetland

[[Page 39853]]

features are expected to benefit the shrew, although the shrew is not a 
covered species under the HCP. The State does not yet have a management 
plan for the Semitropic Ecological Reserve.

Unit 7: Lemoore Wetland Reserve Unit

    The Lemoore Wetland Reserve Unit, 97 ac (39 ha) in size, is located 
east of the Lemoore Naval Air Station and is 4 mi (6 km) west of the 
City of Lemoore in Kings County. The unit is bounded along the southern 
border by State Route 198, and on the north and west sides by a bare 
water-conveyance canal. The unit is managed by the Natural Resources 
Conservation Service for waterfowl enhancement.
    We consider that the unit was occupied at the time of listing and 
that it was not identified as occupied at that time because it had not 
yet been surveyed for small mammals (see Criteria Used To Identify 
Critical Habitat). Buena Vista Lake shrews were identified in the unit 
in April 2005, when it was first surveyed for small mammals (ESRP 2005, 
pp. 10-13). The unit has been determined to have the necessary PCEs 
present and, therefore, meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act. Although we presume that the unit meets 
the definition of critical habitat under section 3(5)(A)(i) of the Act, 
we are also designating the unit under section 3(5)(A)(ii) of the Act. 
The unit is essential for the conservation of the shrew due to its 
location at the northernmost extent of the subspecies' range and its 
geographic isolation from other units, due to occupancy, and due to 
remnant natural wetland and riparian habitat that contains the PCEs.
    The site is part of an area that was created to provide a place for 
city storm water to percolate and drop potential contaminants to shield 
the Kings River during years of flood runoff. Portions of the area are 
flooded periodically, forming fragmented wetland communities throughout 
the area.
    The plant communities of the Lemoore Wetland Reserve Unit include a 
mixture of vegetation communities: nonnative grassland, vernal marsh, 
and elements of valley sink scrub. Commonly occurring plants include 
Brassica nigra (black mustard), red brome, B. hordeaceus (soft chess), 
saltgrass, alkali heath, rushes, Lactuca serriola (prickly lettuce), 
rabbitfoot grass, cottonwood, Rumex crispus (curly dock), Salix ssp. 
(willow), Scirpus ssp. (bulrush), Sonchus oleraceus (common 
sowthistle), cattails, foxtail fescue and Xanthium strumarium 
(cocklebur). This unit is essential to the conservation of the species 
because it is currently occupied and contains the PCEs identified for 
the shrew.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including 
ourselves, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
or threatened species, or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with us on any agency action which is likely to jeopardize the 
continued existence of any species proposed to be listed under the Act 
or result in the destruction or adverse modification of proposed 
critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Sierra Club v. U.S. Fish and 
Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001) and Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 
(9th Cir. 2004)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from ourselves under section 10 of 
the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species, or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives for the project, if any are identifiable. The 
alternatives identify how the likelihood of jeopardy to the species, or 
destruction or adverse modification of critical habitat, may be 
avoided. We define ``reasonable and prudent alternatives'' (at 50 CFR 
402.02) as alternative actions identified during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species or avoid the 
likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

[[Page 39854]]

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the essential 
physical or biological features to an extent that appreciably reduces 
the conservation value of critical habitat for the Buena Vista Lake 
shrew.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. We list examples of such activities below. All such 
activities would also trigger consultation in the absence of critical 
habitat, as required by section 7(a)(2) of the Act, in order to avoid 
jeopardizing the continued existence of the subspecies. Activities that 
may affect critical habitat, when carried out, funded, or authorized by 
a Federal agency, should result in consultation for the shrew. These 
activities include, but are not limited to:
    (1) Actions carried out, permitted or funded by Federal agencies 
that would affect the delivery of water to riparian or wetland areas 
within critical habitat. Such activities could include damming, 
diversion, and channelization. These activities could eliminate or 
reduce the habitat necessary for the reproduction, sheltering, or 
growth of Buena Vista Lake shrews.
    (2) Groundbreaking activities within critical habitat, as carried 
out, permitted, or funded by Federal agencies. Such activities could 
include construction of roads or communication towers, Superfund site 
cleanup, and projects to control erosion or flooding. These activities 
could eliminate or reduce the complex vegetative structure, soil 
moisture, or prey base necessary for reproduction, sheltering, 
foraging, or growth of Buena Vista Lake shrews.
    (3) Activities carried out, permitted, or funded by Federal 
agencies that could affect water quality within critical habitat, 
including the deposition of silt. Such activities could include 
placement of fill into wetlands or discharge of oil or other pollutants 
into streams. These activities could eliminate or reduce the habitat 
and prey base necessary for the reproduction, feeding, or growth of 
Buena Vista Lake shrews.
    (4) Activities carried out on critical habitat designated on 
Federal lands (Unit 1) that could reduce the complex vegetative 
structure, soil moisture, or prey base of critical habitat. Such 
activities could include fire management actions or invasive species 
removal. These activities could eliminate or reduce the habitat or prey 
base necessary for reproduction, sheltering, foraging, or growth of 
Buena Vista Lake shrews.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands within the proposed 
critical habitat designation. Therefore, we are not exempting lands 
from this final designation of critical habitat for the Buena Vista 
Lake shrew pursuant to section 4(a)(3)(B)(i) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise her discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying 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; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying 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 that provides 
equal to or more conservation than a critical habitat designation would 
provide.

[[Page 39855]]

    In the case of the Buena Vista Lake shrew, the benefits of critical 
habitat include public awareness of the shrew's presence and the 
importance of habitat protection, and in cases where a Federal nexus 
exists, increased habitat protection for the shrew due to the 
protection from adverse modification or destruction of critical 
habitat.
    When we evaluate the existence of a management plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.

Summary of Exclusions

    Based on the information provided by entities seeking exclusion, as 
well as additional public comments and information received, we 
evaluated whether certain lands in the proposed critical habitat (Units 
2, 3, 4, and 7 in their entirety, and portions of Units 2, 3, 4, 5, and 
7) were appropriate for exclusion from this final designation pursuant 
to section 4(b)(2) of the Act. We identified Unit 3 (Kern Fan Water 
Recharge Unit) in its entirety (2,687 ac (1,088 ha)) for exclusion from 
critical habitat designation for the shrew.
    We are excluding this area because we believe that:
    (1) Its value for conservation will be preserved for the 
foreseeable future by existing protective actions, and, therefore:
    (2) It is appropriate for exclusion under the ``other relevant 
impacts'' provisions of section 4(b)(2) of the Act.

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis (DEA) 
of the proposed critical habitat designation and related factors 
(Industrial Economics (IEc) 2013a) (available at https://www.regulations.gov, Docket No. FWS-R8-ES-2009-0062). We then opened a 
public comment period announcing the availability of the DEA (78 FR 
14245; March 5, 2013), and subsequently completed a final economic 
analysis (FEA) (IEc 2013b) (also available at https://www.regulations.gov, Docket No. FWS-R8-ES-2009-0062), on which we base 
our determination of economic exclusions.
    The intent of the FEA is to quantify the economic impacts of all 
potential conservation efforts for the Buena Vista Lake shrew. Some of 
these costs will likely be incurred regardless of whether we designate 
critical habitat (baseline). The economic impact of the final 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 already in place for the species (e.g., under 
the Federal listing 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 designation of critical habitat for the species. 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 consider in the final designation of critical 
habitat. The analysis looks retrospectively at baseline impacts 
incurred since the species was listed, and forecasts both baseline and 
incremental impacts likely to occur with the designation of critical 
habitat.
    The FEA 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 FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decisionmakers can use this information to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, the FEA looks retrospectively at costs that 
have been incurred since 2002 (the year of the species' listing) (67 FR 
10101), and considers those costs that may occur in the 20 years 
following the designation of critical habitat, which was determined to 
be the appropriate period for analysis because limited planning 
information was available for most activities to forecast activity 
levels for projects beyond a 20-year timeframe.
    The FEA quantifies economic impacts of Buena Vista Lake shrew 
conservation efforts associated with various economic activities, 
including: (1) Water management; (2) agricultural production; and (3) 
energy development. Incremental impacts (attributable to critical 
habitat) are expected to result from the need for additional 
consultations between ourselves and other Federal agencies seeking to 
fund or permit new projects in critical habitat units. The total 
estimated incremental economic impact for all areas proposed as revised 
critical habitat over the next 20 years is $130,000 ($11,000 
annualized), assuming a 7 percent discount rate. More than half of 
those impacts ($79,000) are estimated to apply to Unit 3, which we are 
excluding based on an established habitat management plan for the area 
(see Exclusions Based on Other Relevant Impacts below). Please refer to 
the FEA for a comprehensive discussion of all potential impacts.
    Because the impacts of critical habitat estimated by the FEA are 
relatively low, and not distributed in such a way as to unduly burden 
any particular area or group, the Secretary is not exercising her 
discretion to exclude any units based on economic impacts. A copy of 
the FEA with supporting documents may be obtained by contacting the 
Sacramento Fish and Wildlife Office (see ADDRESSES) or by downloading 
from the Internet at www.regulations.gov, (Docket No. FWS-R8-ES-2009-
0062).

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. We have determined that the lands 
within Buena Vista Lake shrew critical habitat units are not owned or 
managed by the Department of

[[Page 39856]]

Defense, and, therefore, we anticipate no impact on national security. 
Consequently, the Secretary is not exercising her discretion to exclude 
any areas from this final designation based on impacts on national 
security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether any conservation partnerships would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
look at any tribal issues, and consider the government-to-government 
relationship of the United States with tribal entities. We also 
consider any social impacts that might occur because of the 
designation.

Land and Resource Management Plans, Conservation Plans, or Agreements 
based on Conservation Partnerships

    We consider a current land management or conservation plan to 
provide adequate management or protection if it meets the following 
criteria:
    (1) The plan is complete and provides the same or better level of 
protection from adverse modification or destruction than that provided 
through a consultation under section 7 of the Act;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We consider the habitat management plan operated by the City of 
Bakersfield for the Kern Fan Water Recharge Area (Kern Fan Habitat 
Management Plan (HMP)) to fulfill the above criteria, and the Secretary 
is therefore excluding non-Federal lands covered by this plan (all of 
Unit 3) that provide for the conservation of the Buena Vista Lake 
shrew.

Exclusions Under Section 4(b)(2) of the Act--Kern Fan Water Recharge 
Area

    Proposed Unit 3 is covered in its entirety by the Kern Fan Water 
Recharge Area, which is owned and operated by the City of Bakersfield. 
The Water Recharge Area consists of approximately 2,800 ac (1,133 ha) 
west of Bakersfield, on which the City spreads water, as available, 
from the Kern River and State Water Project (LOA 2004, p. 8). By 
spreading water over the Recharge Area, the City is able to buffer 
downstream flooding and allow for the recharge of underground aquifers. 
Water used in this fashion also supports the physical or biological 
features essential to the shrew. The City has worked closely with us 
since 2004 to develop and implement a habitat management plan (Kern Fan 
HMP) for the conservation of the shrew (LOA 2004, entire).
    The Kern Fan HMP benefits the shrew in several ways. First, it 
incorporates several preexisting beneficial management practices, 
thereby making those practices more likely to persist, and giving us 
input regarding any future proposals to change them. The practices 
include limitation of public access to the site, cessation of livestock 
grazing, and maintenance of the site as open space left predominantly 
in its natural vegetative state (LOA 2004, pp. 20, 21). Second, it 
applies the results of a baseline habitat survey to establish 
priorities according to which available waters will be spread so as to 
most benefit the shrew (LOA 2004, pp. 22-24). Third, it establishes a 
monitoring program involving yearly habitat surveys (LOA 2004, pp. 25-
27). And fourth, it incorporates adaptive management provisions by 
establishing goals for various areas and adjusting management to meet 
those goals as necessary (LOA 2004, pp. 24, 27-28). The plan requires 
monitoring results to be shared with us, and provides for yearly 
meetings between ourselves and the City to discuss adaptive management 
options (LOA 2004, p. 28).
    The City of Bakersfield has carried out the terms of this plan 
since 2005 (LOA 2005, entire; LOA 2006, entire; LOA 2007, entire; LOA 
2008, entire; LOA 2009, entire; LOA 2010, entire; LOA 2012a, entire; 
LOA 2012b, entire). In 2011, with our input, the City proposed an 
addendum, referred to as the ``Enhanced Management Plan,'' under which 
monitoring efforts would be expanded to include prey-base surveys and 
trapping surveys for presence of the shrew (LOA 2011, p. 8). The 
Enhanced Management Plan also provided additional assurances that the 
plan would continue to be carried out, by calling for funding 
provisions and for the establishment of a City resolution to codify the 
City's long-term commitment (LOA 2011, p. 7). That resolution has been 
passed, subject to a condition that we exclude the Kern Fan Water 
Recharge Area from critical habitat designation (Bakersfield Water 
Board Committee 2011, entire).

Benefits of Inclusion--Kern Fan Water Recharge Area

    The potential benefits to the shrew of designating the proposed 
Kern Fan Water Recharge Unit as critical habitat include increased 
oversight of Federal agencies to assure that they do not permit, fund, 
or carry out actions in the area that could destroy or adversely modify 
critical habitat. However, because Buena Vista Lake shrews occur in the 
proposed unit, Federal agencies carrying out actions affecting the area 
would be required to consult with us if their actions might affect the 
shrew, even in the absence of critical habitat (IEc 2013, p. 4-3). 
Critical habitat may result in additional protective measures from 
consultation due to the additional emphasis it places on habitat, and 
due to the different standard used under the Act for judging impacts to 
that habitat. However, in this particular case, we expect that 
additional protective measures resulting from critical habitat would be 
rare. Any such benefits would also be limited to ameliorating the 
potential impacts of Federal actions. They would not extend to 
proactive, ongoing management of the habitat to maintain or increase 
essential habitat features.
    Critical habitat designation would also serve to alert the public 
and State agencies of the presence of the shrew in the area. However, 
the City of Bakersfield's habitat management plan for the shrew would 
also serve that purpose to some extent.

Benefits of Exclusion--Kern Fan Water Recharge Area

    The benefits of exclusion, in this case, would include the 
continued participation of the City of Bakersfield in its established 
habitat management plan (LOA 2004, entire), and the adoption by the 
city of additional improvements as specified in the Enhanced Management 
Plan (LOA 2011, entire). As discussed above, this would mean habitat 
protection, monitoring of conditions, and adaptive management to 
benefit the shrew on an ongoing basis, regardless of actions by Federal 
agencies in the area. In considering the potential benefits of any 
management plan we must also consider the likelihood that the plan will 
continue to be implemented in the future. The City of Bakersfield has 
demonstrated a commitment to continued implementation by consistently 
carrying out the terms of the 2004 management plan since its inception. 
The City's prospective adoption of the Enhanced

[[Page 39857]]

Management Plan, and its passage of a conditional resolution indicating 
commitment to that plan and continued funding, also provide strong 
indications that the City will implement the plan into the indefinite 
future.
    Additional benefits of exclusion include the building of a working 
relationship between ourselves and the City of Bakersfield, which may 
foster an atmosphere of mutual trust and input by both sides into shrew 
conservation actions. Successful establishment of such a relationship 
can increase the likelihood that other landowners may be willing to 
enter similar relationships for the benefit of threatened and 
endangered species.

Benefits of Exclusion Outweigh Benefits of Inclusion--Kern Fan Water 
Recharge Area

    Both designation and exclusion of the Kern Fan Recharge Area 
provide direct and indirect benefits for the shrew, which we must weigh 
against each other while taking into account the likelihood that such 
benefits will actually be realized. In this case, we consider the 
direct benefits of exclusion to outweigh those of designation, because 
exclusion can lead to ongoing adaptive conservation management under 
the Kern Fan HMP. In contrast, designation can only protect the shrew 
against certain Federal actions, and because the area is occupied year-
round by the shrew, most of those actions are already covered by the 
Act's prohibition against jeopardizing the continued existence of a 
listed species (16 U.S.C. 1536(7)(a)(2)).
    Similarly, the indirect benefits of exclusion (the fostering of a 
working relationship with the City of Bakersfield to provide for the 
conservation of the shrew), outweigh the indirect benefits of 
designation (alerting the public to the shrew's presence in the area). 
Another indirect benefit of critical habitat is the establishment and 
general publication of the habitat needs of the species, but this 
benefit can be realized through this designation without need to 
designate the Kern Fan Water Recharge Area specifically.
    Finally, although the benefits of designating the Kern Fan area are 
essentially certain, the benefits of exclusion are also very likely to 
occur. The City of Bakersfield has established a long-standing practice 
of following its habitat management plan for the conservation benefit 
of the shrew. They have also worked closely with us to improve the 
plan, and have passed a city ordinance to codify their intent to carry 
out the terms of the improved plan into the indefinite future. 
Accordingly, we find that the conservation benefits of excluding the 
Kern Fan Water Recharge Area from critical habitat designation outweigh 
the conservation benefits of specifying the area as part of the shrew's 
critical habitat.

Exclusion Will Not Result in Extinction of the Subspecies

    Because of the conservation benefits and habitat protections 
discussed above that the City of Bakersfield will implement, with our 
input, in the absence of critical habitat designation and because the 
shrew is known from seven existing locations, six of which we are 
designating as critical habitat, we conclude that exclusion of the Kern 
Fan Water Recharge Area (proposed Unit 3) will not result in extinction 
of the subspecies. Therefore, based on the above discussion, the 
Secretary is exercising her discretion to exclude approximately 2,687 
ac (1,088 ha) of land in the Kern Fan Water Recharge Area from this 
final revised critical habitat designation.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. The Office of Information and Regulatory 
Affairs has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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 of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of an agency certifies the rule will not have a significant 
economic impact on a substantial number of small entities. The SBREFA 
amended the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. In this final rule, we are certifying that the critical 
habitat designation for the Buena Vista Lake shrew will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    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; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts on 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the final designation of critical habitat for the 
shrew would significantly affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities (e.g., energy, local 
government). We apply the ``substantial number'' test individually to 
each industry to determine if certification is appropriate. However, 
the SBREFA does not explicitly define ``substantial number''

[[Page 39858]]

or ``significant economic impact.'' Consequently, to assess whether a 
``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in an area. In some circumstances, 
especially with critical habitat designations of limited extent, we may 
aggregate across all industries and consider whether the total number 
of small entities affected is substantial. In estimating the number of 
small entities potentially affected, we also consider whether their 
activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the Buena Vista Lake shrew. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification Standard'' section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of the Buena 
Vista Lake shrew and the designation of critical habitat. The analysis 
is based on the estimated impacts associated with the rulemaking as 
described in Chapters 3 through 5 and Appendix A of the analysis and 
evaluates the potential for economic impacts related to: (1) Water 
management (availability and delivery); (2) agricultural production; 
and (3) energy development.
    The incremental impacts for this designation are expected to 
consist almost entirely of administrative costs. These costs are likely 
to be borne by city and county governmental jurisdictions, as well as 
several energy utilities. Exhibit A-1 of the FEA describes entities 
that may potentially be affected by critical habitat designation and 
assesses whether they are considered small entities under the RFA based 
on the applicable small entity thresholds by North American Industry 
Classification System (NAICS) code. While there is a potential for 
other third party involvement, these are the entities we foresee 
potentially participating in consultation. As shown in Exhibit A-1, 
none of the entities expected to bear incremental impacts is considered 
to be small under the RFA. Potentially, some incremental impacts borne 
by the energy utilities may be passed on to individual customers in the 
form of increased energy prices. However, given the small size of the 
impacts, such an outcome is unlikely.
    In summary, we considered whether this designation would result in 
a significant economic effect on a substantial number of small 
entities. Based on the above reasoning and currently available 
information, we concluded that this rule would not result in a 
significant economic impact on a substantial number of small entities. 
None of the entities potentially affected in any significant way by 
such costs qualify as small entities under the SBREFA. Therefore, we 
are certifying that the designation of critical habitat for the Buena 
Vista Lake shrew will not have a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration:
     Reductions in crude oil supply in excess of 10,000 barrels 
per day (bbls);
     Reductions in fuel production in excess of 4,000 barrels 
per day;
     Reductions in coal production in excess of 5 million tons 
per year;
     Reductions in natural gas production in excess of 25 
million mcf per year;
     Reductions in electricity production in excess of 1 
billion kilowatt-hours per year or in excess of 500 megawatts of 
installed capacity;
     Increases in energy use required by the regulatory action 
that exceed the thresholds above;
     Increases in the cost of energy production in excess of 
one percent;
     Increases in the cost of energy distribution in excess of 
one percent; or
     Other similarly adverse outcomes.
    Although two energy companies operate facilities within the 
designation (Pacific Gas and Electric (PG&E) and Southern California 
Gas Company (SoCal Gas)), we do not anticipate recommending additional 
shrew conservation measures on their activities due to the designation 
of critical habitat. As a result, we do not anticipate critical habitat 
designation to affect energy use, production, or distribution. 
Additional administrative time spent consulting with us due to critical 
habitat may cost these companies $2,000 on an annualized basis, which 
is less than 0.01 percent of the annual revenues of either PG&E or 
SoCal Gas.
    In addition, our analysis concludes that it is possible that solar 
energy developments and oil and gas exploration may be proposed in the 
future within the critical habitat. No current plans exist for these 
activities, however. In the case that future solar energy project or 
oil and gas developments are proposed, we do not expect the presence of 
critical habitat for the shrew to change our recommendations with 
respect to shrew conservation. That is, all conservation efforts 
recommended via section 7 consultation on these projects would be made 
regardless of whether critical habitat is designated. Consequently, the 
only costs would be from the relatively minor administrative effort to 
consider critical habitat as part of future consultations.
    Accordingly, the FEA finds that none of the potential outcomes 
listed above are likely to result from this designation of critical 
habitat (IEc 2013, Appendix A). Thus, based on information in the 
economic analysis, energy-related impacts associated with Buena Vista 
Lake shrew conservation activities within critical habitat are not 
expected. As such, the designation of critical habitat is not expected 
to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental

[[Page 39859]]

mandate'' includes a regulation that ``would impose an enforceable duty 
upon State, local, or tribal governments'' with two exceptions. It 
excludes ``a condition of Federal assistance.'' It also excludes ``a 
duty arising from participation in a voluntary Federal program,'' 
unless the regulation ``relates to a then-existing Federal program 
under which $500,000,000 or more is provided annually to State, local, 
and tribal governments under entitlement authority,'' if the provision 
would ``increase the stringency of conditions of assistance'' or 
``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because the designation of critical habitat 
imposes no obligations on State or local governments. By definition, 
Federal agencies are not considered small entities, although the 
activities they fund or permit may be proposed or carried out by small 
entities. Also, this rule would not produce a Federal mandate of $100 
million or greater in any year; that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. The FEA 
concludes incremental impacts may occur due to administrative costs of 
section 7 consultations; however, these are not expected to 
significantly affect small governments.
    Consequently, we do not believe that this critical habitat 
designation will significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the Buena Vista Lake shrew in a takings 
implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding, assistance, or require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. The FEA has concluded that this 
critical habitat designation does not affect landowner actions that do 
not require Federal funding or permits, nor does it preclude 
development of habitat conservation programs or issuance of incidental 
take permits to permit actions that do require Federal funding or 
permits to go forward. The takings implications assessment concludes 
that this designation of critical habitat for the Buena Vista Lake 
shrew does not pose significant takings implications for lands within 
or affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we specifically met with, 
requested information from, and coordinated development of this 
critical habitat designation with appropriate State resource agencies 
in California. We did not receive comments from State agencies. The 
designation of critical habitat in areas currently occupied by the 
Buena Vista Lake shrew may impose nominal additional restrictions to 
those currently in place and, therefore, may have little incremental 
impact on State and local governments and their activities. The 
designation may have some benefit to these governments in that the 
areas that contain the physical or biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features of the habitat necessary to the conservation of the 
species are specifically identified. This information does not alter 
where and what federally sponsored activities may occur. However, it 
may assist local governments in long-range planning (rather than having 
them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the Buena Vista Lake shrew. 
The designated areas of critical habitat are presented on maps, and the 
rule provides several options for the interested public to obtain more 
detailed location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501

[[Page 39860]]

et seq.). This rule will not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), 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. We determined that there are no tribal 
lands occupied by the Buena Vista Lake shrew at the time of listing 
that contain the physical or biological features essential to 
conservation of the species, and no tribal lands unoccupied by the 
shrew that are essential for the conservation of the species. 
Therefore, we are not designating critical habitat for the shrew on 
tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at https://www.regulations.gov and upon request from the 
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Author(s)

    The primary authors of this rulemaking are the staff members of the 
Sacramento Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.

0
2. In Sec.  17.95, amend paragraph (a) by revising the entry for 
``Buena Vista Lake Shrew (Sorex ornatus relictus)'', to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
    Buena Vista Lake Shrew (Sorex ornatus relictus)
    (1) Critical habitat units are depicted for Kings and Kern 
Counties, California, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Buena Vista Lake shrew consist of permanent and intermittent riparian 
or wetland communities that contain:
    (i) A complex vegetative structure with a thick cover of leaf 
litter or dense mats of low-lying vegetation. Associated plant species 
can include, but are not limited to, Fremont cottonwoods, willows, 
glasswort, wild-rye grass, and rush grass. Although moist soil in areas 
with an overstory of willows or cottonwoods appears to be favored, such 
overstory may not be essential.
    (ii) Suitable moisture supplied by a shallow water table, 
irrigation, or proximity to permanent or semipermanent water.
    (iii) A consistent and diverse supply of prey. Although the 
specific prey species used by the Buena Vista Lake shrew have not been 
identified, ornate shrews are known to eat a variety of terrestrial and 
aquatic invertebrates, including amphipods, slugs, and insects.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS 7.5' quadrangles, and critical habitat units 
were then mapped using Universal Transverse Mercator (UTM) coordinates. 
The maps in this entry, as modified by any accompanying regulatory 
text, establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at https://criticalhabitat.fws.gov/crithab/, and 
at https://www.regulations.gov at Docket No. FWS-R8-ES-2009-0062, and at 
the field office responsible for this designation. You may obtain field 
office location information by contacting one of our regional offices, 
the addresses of which are listed at 50 CFR 2.2.
BILLING CODE 4310-55-P

[[Page 39861]]

    (5) Index map of Buena Vista Lake shrew critical habitat units 
follows:
[GRAPHIC] [TIFF OMITTED] TR02JY13.002


[[Page 39862]]


    (6) Unit 1: Kern National Wildlife Refuge Unit, Kern County, 
California. Note: Map of Unit 1, Kern National Wildlife Refuge Unit, 
follows:
[GRAPHIC] [TIFF OMITTED] TR02JY13.003


[[Page 39863]]


    (7) Unit 2: Goose Lake Unit, Kern County, California. Note: Map of 
Unit 2, Goose Lake Unit, follows:
[GRAPHIC] [TIFF OMITTED] TR02JY13.004


[[Page 39864]]


    (8) Unit 4: Coles Levee Unit, Kern County, California. Note: Map of 
Unit 4, Coles Levee Unit, follows:
[GRAPHIC] [TIFF OMITTED] TR02JY13.005


[[Page 39865]]


    (9) Unit 5: Kern Lake Unit, Kern County, California. Note: Map of 
Unit 5, Kern Lake Unit, follows:
[GRAPHIC] [TIFF OMITTED] TR02JY13.006


[[Page 39866]]


    (10) Unit 6: Semitropic Ecological Reserve Unit, Kern County, 
California. Note: Map of Unit 6, Semitropic Ecological Reserve Unit, 
follows:
[GRAPHIC] [TIFF OMITTED] TR02JY13.007


[[Page 39867]]


    (11) Unit 7: Lemoore Wetland Reserve Unit, Kings County, 
California. Note: Map of Unit 7, Lemoore Wetland Reserve Unit, follows:
[GRAPHIC] [TIFF OMITTED] TR02JY13.008

* * * * *

    Dated: June 20, 2013.
Rachel Jaconson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-15586 Filed 7-1-13; 8:45 am]
BILLING CODE 4310-55-C