[Federal Register Volume 70, Number 44 (Tuesday, March 8, 2005)]
[Rules and Regulations]
[Pages 11140-11154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4173]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI26
Endangered and Threatened Wildlife and Plants; Final Designation
of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal
Pool Plants in California and Southern Oregon; Re-evaluation of Non-
Economic Exclusions From August 2003 Final Designation
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; confirmation.
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SUMMARY: We, the Fish and Wildlife Service (Service), confirm the non-
economic exclusions made to our previous final rule (August 6, 2003, 68
FR 46683, effective September 5, 2003), which designated critical
habitat pursuant to the Endangered Species Act of 1973, as amended
(Act), for 4 vernal pool crustaceans and 11 vernal pool plants. A total
of approximately 1,184,513 ac (479,356 ha) of land falls within the
boundaries of designated critical habitat. This estimate reflects
exclusion of: Lands within the boundaries of Habitat Conservation
Plans, National Wildlife Refuge lands and National fish hatchery lands
(33,097 ac (13,394 ha)), State lands within ecological reserves and
wildlife management areas (20,933 ac (8,471 ha)), Department of Defense
lands within Beale and Travis Air Force Bases as well as Fort Hunter
Liggett and Camp Roberts Army installations (64,259 ac (26,005 ha)),
Tribal lands managed by the Mechoopda Tribe (644 ac (261 ha)), and the
Santa Rosa Plateau Ecological Reserve (10,200 ac (4,128 ha)) from the
final designation. The area estimate does not reflect the exclusion of
lands within the California counties of Butte, Madera, Merced,
Sacramento, and Solano, which are excluded from the final designation
pursuant to section 4(b)(2) of the Act and pending further analysis as
directed by the October 29, 2004, order by the court.
This critical habitat designation requires us to consult under
section 7 of the Act with regard to actions authorized, funded, or
carried out by a Federal agency. Section 4 of the Act requires us to
consider economic and other relevant impacts when specifying any
particular area as critical habitat. We solicited data and comments
from the public on all aspects of the proposed rule, including data on
economic and other impacts of the designation.
[[Page 11141]]
DATES: This document confirms the non-economic exclusions made to our
previous final rule (August 6, 2003, 68 FR 46683, effective September
5, 2003), and this document is effective on March 8, 2005.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, will be
available for public inspection, by appointment, during normal business
hours at the Sacramento Fish and Wildlife Office, U.S. Fish and
Wildlife Service, 2800 Cottage, Room W-2605, Sacramento, CA 95825.
FOR FURTHER INFORMATION CONTACT: Arnold Roessler, at the Sacramento
Fish and Wildlife Office address above (telephone (916) 414-6600;
facsimile (916) 414-6710).
SUPPLEMENTARY INFORMATION:
Preamble
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat are paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 473 species or 37 percent
of the 1,264 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat. We address the habitat needs
of all 1,264 listed species through conservation mechanisms such as
listing, section 7 consultations, the Section 4 recovery planning
process, the Section 9 protective prohibitions of unauthorized take,
Section 6 funding to the States, and the Section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.
We note, however, that a recent judicial opinion, Gifford Pinchot
Task Force v. United States Fish and Wildlife Service, has invalidated
the Service's regulation defining destruction or adverse modification
of critical habitat. We are currently reviewing the decision to
determine what effect it may have on the outcome of consultations
pursuant to Section 7 of the Act.
In crafting the Act, Congress provided guidance for the exercise of
discretion by the Secretary in making critical habitat decisions. We
have applied the guidance in this rulemaking. Section 3(5)(a) of the
Act, defines critical habitat as ``(i) the specific areas within the
geographical area occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this Act, on which are
found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of this Act, upon
a determination by the Secretary that such areas are essential for the
conservation of the species.''
Section 3(5)(C) of the Act further provides that ``except in those
circumstances determined by the Secretary, critical habitat shall not
include the entire geographical area which can be occupied by the
threatened or endangered species.'' ``These provisions of section 3
authorize the exercise of discretion in determining (1) whether special
management considerations or protections may be required; (2) whether
unoccupied areas are essential for the conservation of the species; and
(3) the extent to which the entire area which can be occupied by the
species should be included in critical habitat.''
Finally, section 4(b)(2) of the Act allows the Secretary to exclude
any area from critical habitat, after considering the economic impact
and any other relevant impact of a designation, upon a determination
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless the failure to
designate such area as critical habitat will result in the extinction
of the species concerned.
The Congressional record is clear that Congress contemplated
occasions where the Secretary could exclude the entire designation. In
addition, the discretion that Congress anticipated would be exercised
in Section 4(b)(2) of the Act is extremely broad. ``The consideration
and weight given to any particular impact is completely within the
Secretary's discretion. * * *'' (Congressional Research Service 1982).
Given that section 4(a)(3)(A) of the Act requires that critical
habitat be designated concurrently with making a determination that a
species is an endangered species or a threatened species, we are
mindful of the Congressional intent with respect to listing as we
designate critical habitat. For example, section 4(a)(1) of the Act (16
U.S.C. 1533(a)(1), states that we must consider in listing
determinations, among factors, ``the inadequacy of existing regulatory
mechanisms'' (so-called ``Factor D''); and ``other natural or manmade
factors affecting its continued existence'' (referred to as ``Factor
E'').
Section 4(b)(1)(A) requires us also to ``tak[e] into account those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and food
supply, or other conservation practices, within any area under its
jurisdiction, or on the high seas.'' Read together, sections 4(a)(1)
and 4(b)(1)(A), as reflected in our regulations at 50 CFR 424.11(f),
require us to take into account any State or local laws, regulations,
ordinances, programs, or other specific conservation measures that
either positively or negatively affect a species' status (i.e.,
measures that create, exacerbate, reduce, or remove threats identified
through the section 4(a)(1) analysis). The manner in which the section
4(a)(1) factors are framed supports this conclusion. Factor (D) for
example, ``the inadequacy of existing regulatory mechanisms'' indicates
that overall we might find existing regulatory mechanisms adequate to
justify a determination not to list a species. Factor (E) in section
4(a)(1) (any ``manmade factors affecting [the species'] continued
existence'') requires us to consider the pertinent laws, regulations,
programs, and other specific actions of any entity that either
positively or negatively affect the species. Thus, the analysis
outlined in
[[Page 11142]]
section 4 of the Act requires us to consider the conservation efforts
of not only State and foreign governments but also of Federal agencies,
Tribal governments, businesses, organizations, or individuals that
positively affect the species' status. The section 4 analysis for
listing determinations is relevant to our exercise of discretion in
critical habitat designations, although it must be stressed that
analysis in no way limits the Secretary's discretion.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed. The accelerated
schedules of court-ordered designations have left the Service with
almost no ability to provide for adequate public participation or to
ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals due to the risks associated with
noncompliance with judicially imposed deadlines. This in turn fosters a
second round of litigation in which those who fear adverse impacts from
critical habitat designations challenge those designations. The cycle
of litigation appears endless, is very expensive, and in the final
analysis provides relatively little additional protection to listed
species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects, the cost of requesting and responding to public
comment, and in some cases the costs of compliance with the National
Environmental Policy Act (NEPA); all are part of the cost of critical
habitat designation. None of these costs result in any benefit to the
species that is not already afforded by the protections of the Act
enumerated earlier, and they directly reduce the funds available for
direct and tangible conservation actions.
Background
On September 24, 2002, we published a proposed rule to designate
critical habitat, pursuant to the Endangered Species Act of 1973, as
amended (Act), for 4 vernal pool crustaceans and 11 vernal pool plants
(67 FR 59884). The four vernal pool crustaceans involved in this
critical habitat designation are the Conservancy fairy shrimp
(Branchinecta conservatio), longhorn fairy shrimp (Branchinecta
longiantenna), vernal pool fairy shrimp (Branchinecta lynchi), and
vernal pool tadpole shrimp (Lepidurus packardi). The 11 vernal pool
plant species are Butte County meadowfoam (Limnanthes floccosa ssp.
californica), Contra Costa goldfields (Lasthenia conjugens), Hoover's
spurge (Chamaesyce hooveri), fleshy (or succulent) owl's-clover
(Castilleja campestris ssp. succulenta), Colusa grass (Neostapfia
colusana), Greene's tuctoria (Tuctoria greenei), hairy Orcutt grass
(Orcuttia pilosa), Sacramento Orcutt grass (Orcuttia viscida), San
Joaquin Valley Orcutt grass (Orcuttia inaequalis), slender Orcutt grass
(Orcuttia tenuis), and Solano grass (Tuctoria mucronata). We proposed a
total of 128 units of critical habitat for these 15 vernal pool
species, totaling approximately 672,920 hectares (ha) (1,662,762 acres
(ac)) in 36 counties in California and one county in Oregon. In
accordance with our regulations at 50 CFR 424.16(c)(2), we opened a 60-
day comment period on this proposal which closed on November 25, 2002.
All the species live in vernal pools (shallow depressions that hold
water seasonally), swales (shallow drainages that carry water
seasonally), and ephemeral freshwater habitats. None are known to occur
in riverine waters, marine waters, or other permanent bodies of water.
The vernal pool habitats of these species have a discontinuous
distribution west of the Sierra Nevada that extends from southern
Oregon through California into northern Baja California, Mexico. The
species have all adapted to the generally mild climate and seasonal
periods of inundation and drying that help make the vernal pool
ecosystems of California and southern Oregon unique.
Section 4(b)(2) of the Act requires that the Secretary of the
Interior designate or revise critical habitat based upon the best
scientific and commercial data available, after taking into
consideration the economic impact, impact to national security, and any
other relevant impact of specifying any particular area as critical
habitat. The Secretary may exclude any area from critical habitat if
she determines that the benefit of such exclusion outweighs the
benefits of specifying such area as part of the critical habitat,
unless the failure to designate such area as critical habitat will
result in the extinction of the species concerned. Thus, to fulfill our
requirement to consider the potential economic impacts of the proposed
designation of critical habitat for the 15 vernal pool species, we
conducted an analysis of the potential economic impacts on the proposed
designation and published a notice on November 21, 2002 (67 FR 70201),
announcing the availability of our draft economic analysis (DEA). The
notice opened a 30-day public comment period on the draft economic
analysis and extended the comment period on the proposed critical
habitat designation.
During the development of the final designation, we reviewed the
lands proposed as critical habitat based on public comments and any new
information that may have become available and refined the boundaries
of the proposal to remove lands determined not to be essential to the
conservation of the 15 vernal pool species. We then took into
consideration the potential economic impacts of the designation,
impacts on national security, and other relevant factors such as
partnerships, existing management of the lands being considered, and
the effect of designation on the conservation of the species whose
critical habitat was covered by the designation. Next, we determined
whether the benefits of excluding certain lands from the final
designation of critical habitat for the 15 vernal pool species
outweighed the benefit of including them in the designation, and
whether the specific exclusions would result in the extinction of any
of the species involved. The final rule made two types of exclusions,
lands excluded from the final designation based on economic effects of
the designation and lands excluded due to other considerations. Lands
excluded due to other considerations included lands within specific
National Wildlife Refuges and Fish Hatcheries; Department of Defense
lands; Tribal lands; State Wildlife Areas and Ecological Reserves; and
lands covered by habitat conservation plans or other management plans
that provide a benefit for the species. Lands proposed
[[Page 11143]]
as critical habitat in Butte, Madera, Merced, Sacramento, and Solano
Counties were excluded based on potential economic impacts. Thus, on
July 15, 2003, we made a final determination of critical habitat for
the 15 vernal pool species; the final rule was published in the Federal
Register on August 6, 2003 (68 FR 46684). A total of approximately
744,067 ac (301,114 ha) of land were identified as within the
boundaries of the designated critical habitat for the 15 vernal pool
species.
In January 2004, Butte Environmental Council and several other
organizations filed a complaint alleging that we: (1) Violated both the
Act, and the Administrative Procedure Act (APA) by excluding over 1
million acres from the final designation of critical habitat for the 15
vernal pool species; (2) violated mandatory notice-and-comment
requirements under the Act and APA; and (3) engaged in an unlawful
pattern, practice, and policy by failing to properly consider the
economic impacts of designating critical habitat. On October 28, 2004,
the court signed a Memorandum and Order in that case. The Memorandum
and Order remanded the final designation to the Service in part. In
particular, the court ordered us to: (1) Reconsider the exclusions from
the final designation of critical habitat for the 15 vernal pool
species, with the exception of those lands within the 5 California
counties that were excluded based on potential economic impacts, and
publish a new final determination as to those lands within 120 days;
and (2) reconsider the exclusion of the 5 California counties based on
potential economic impacts and publish a new final determination no
later than July 31, 2005. The court did not alter the August 6, 2003,
final designation.
In order to more completely comply with the court order, on
December 28, 2004, we reopened the comment period for 30 days (69 FR
77700) on the designation, to solicit any new information concerning
the benefits of excluding and including the lands the final rule
excluded on the basis of noneconomic considerations. Comments received
during this 30-day comment period are addressed herein.
This notice addresses the first requirement of the remand--the
reconsideration of the lands excluded for noneconomic considerations
from the final designation of critical habitat for the 15 vernal pool
species. Those lands within the 5 California counties that were
excluded based on potential economic impacts will be addressed through
a future Federal Register document, upon completion of the economic
analysis currently underway.
Table 1 lists each specific area that was excluded from the
proposed designation of critical habitat for the 15 vernal pool
species, based on policy by category and size. The total area shown is
the cumulative critical habitat area for all 15 species. Many of the
critical habitat boundaries for each species overlap and as a result
the actual total critical habitat area would be less.
Table 1.--Approximate Areas of Critical Habitat Exclusions for the
Vernal Pool Crustaceans and Plants in California and Oregon
------------------------------------------------------------------------
Exclusion area Acres Hectares
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National Wildlife Refuges (NWR) and Fish Hatchery Exclusions
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Sacramento NWR Complex............................ 19,363 7,836
San Francisco Bay NWR............................. 617 250
San Luis NWR Complex.............................. 18,014 7,290
Kern NWR Complex.................................. 4,894 1,980
Coleman Nat. Fish Hatchery........................ 13 5
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Total......................................... 42,914 17,367
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Department of Defense Exclusions
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Beale Air Force Base *............................ 10,033 4,060
Travis Air Force Base *........................... 9,651 3,906
Fort Hunter Liggett............................... 16,583 6,711
Camp Roberts...................................... 33,937 13,734
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Total......................................... 70,204 28,410
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Tribal Land Exclusions
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Mechoopda Tribe................................... 644 261
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Total......................................... 644 261
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State Wildlife Areas (WA) and Ecological Reserve (ER) Exclusions
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Allensworth ER.................................... 1,141 462
Battle Creek WA................................... 637 258
Big Sandy WA...................................... 478 194
Boggs Lake ER..................................... 50 20
Butte Creek Canyon ER............................. 0.4 0.16
Calhoun Cut ER.................................... 3,021 1,223
Carrizo Plains ER................................. 455 184
Dales Lake ER..................................... 754 305
Fagen Marsh ER.................................... 420 170
Grizzly Island WA................................. 10 4
Hill Slough WA.................................... 1,559 631
North Grasslands WA............................... 5 2
Oroville WA....................................... 39 16
Phoenix Field ER.................................. 7 3
[[Page 11144]]
San Joaquin River ER.............................. 278 113
Stone Corral ER................................... 3,074 1,244
Thomes Creek ER................................... 447 181
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Total......................................... 12,373 5,007
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Habitat Conservation Plans (HCP) and Cooperatively Managed Land
Exclusions
------------------------------------------------------------------------
Skunk Hollow HCP.................................. 239 97
Western Riverside Multiple Species HCP............ 5,730 2,319
Santa Rosa Plateau Ecological Reserve............. 4,246 1,718
San Joaquin County Multiple Species HCP........... 10 4
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Total......................................... 10,224 4,138
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Grand Total............................... 136,358 55,182
------------------------------------------------------------------------
* Beale and Travis AFB have approved INRMPs and are not designated
critical habitat based on 4(a)(3)(B) of the Act.
Summary of Comments and Recommendations
In the September 24, 2002, proposed critical habitat designation
(67 FR 59884) and subsequent Federal Register notices concerning the 15
vernal pool species (67 FR 70201 and 68 FR 12336), we requested all
interested parties to submit comments on the specifics of the proposal,
including information related to the critical habitat designation, unit
boundaries, species occurrence information and distribution, land use
designations that may affect critical habitat, potential economic
effects of the proposed designation, benefits associated with critical
habitat designation, potential exclusions and the associated rationale
for the exclusions, and methods used to designate critical habitat.
In the December 28, 2004, reopening of public comment period for
noneconomic exclusions related to critical habitat designation (69 FR
77700), we requested all interested parties to submit comments on the
specifics of the proposal, including information related to amount and
distribution of habitat, essential habitat, rationale for including or
excluding habitat, benefits associated with including or excluding
critical habitat designation, current or planned activities on proposed
critical habitat, and public participation in designating critical
habitat.
We contacted all appropriate State and Federal agencies, county
governments, elected officials, and other interested parties and
invited them to comment. This was accomplished through telephone calls,
letters, and news releases faxed and/or mailed to affected elected
officials, media outlets, local jurisdictions, interest groups and
other interested individuals. In addition, we invited public comment
through the publication of legal notices in numerous newspaper and news
media throughout California and Oregon. In 2002, we provided
notification of the DEA and proposed rule to all interested parties. At
the request of Congressman Cardoza's Office, the Merced County Board of
Supervisors, and the Stanislaus County Board of Supervisors, we held
two public meetings to explain the December 28, 2004, Federal Register
notice regarding the noneconomic exclusions to the public and requested
that they provide comments. We provided contacts where they could
direct questions regarding the proposed designation. We also posted the
associated material on our Sacramento Fish and Wildlife Office internet
site following the publication on December 28, 2004. Additionally, we
made available to the public upon request individual maps of the
noneconomic exclusions.
We received a total of 955 comment letters during the first 3
comment periods, and 17 on the most recent comment period, which ended
on January 27, 2005. Comments were received from Federal, Tribal, State
and local agencies, and private organizations and individuals. We
reviewed all comments received, for this and previous rules, for
substantive issues and new information on the proposed exclusions and
other information regarding the vernal pool plants and vernal pool
crustaceans. Similar comments were grouped into several general issue
categories relating specifically to the proposed critical habitat
determination, the proposed exclusions, and the Draft Economic
Analysis, and are identified below.
Peer Review
For a discussion of the peer review of vernal pool critical habitat
designation, please refer to our August 6, 2003, final designation (68
FR 46684).
State Agencies
For a discussion of the State Agency comments on the vernal pool
critical habitat designation, please refer to our August 6, 2003, final
designation (68 FR 46684).
Other Public Comments and Responses
We address other substantive comments and accompanying information
in the following summary. Relatively minor editing changes and
reference updates suggested by commenters have been incorporated into
this final rule or the final economic analysis, as appropriate.
Issue 1--Habitat and Species-Specific Information
Comment 1: One commenter suggested that created vernal pool habitat
should not be used as a method of mitigation for impacts to existing
vernal pool habitat.
Our Response: Preservation of naturally occurring vernal pool
complexes remains a key component to conservation for vernal pool
species. In designating critical habitat areas we evaluated the
importance of including created vernal pool habitat within the
designated areas. We have determined that created vernal pool areas do
provide essential habitat for many of the vernal pool species and are a
key component toward their conservation.
Comment 2: The military, notably the California Army National
Guard,
[[Page 11145]]
specifically Camp Roberts and Fort Hunter Liggett, and the U.S. Air
Force, specifically Beale Air Force Base and Travis Air Force Base,
requested that critical habitat not be designated on the four bases. In
addition, the Solano County Board of Supervisors requested that Travis
Air Force Base, in particular, not be included in critical habitat
designation. Another commenter had concerns that vernal pool habitat
for federally listed vernal pool species within Travis Air Force Base
was not adequately protected from military activities that occur on the
base. This commenter requested that vernal pool habitat within Travis
Air Force Base be designated as critical habitat.
Our Response: The two Air Force Bases have approved INRMPs and were
excluded through section 4(a)(3)(B) of the Act. The two Army National
Guard Reserves Bases were excluded through section 4(b)(2) of the Act,
since the benefits of excluding outweigh the benefits of including
those vernal pool areas within the designation. For a summary of our
comments regarding the exclusion of lands occupied by these bases,
please refer to our August 6, 2003, final designation (68 FR 46684) and
the Exclusions section below. No significant changes to vernal pool
habitat and the management of this habitat have occurred since these
military bases were evaluated for exclusion from critical habitat
designation in the August 6, 2003, final rule. All of these bases have
draft or final Integrated Natural Resource Management Plans (INRMPs)
and the Service has completed or is currently working on consultations
on these through the section 7 consultation process. We recognize that
the military is implementing measures to conserve existing locations of
federally listed vernal pool species and the habitat they occupy. In
addition, section 4(b)(2) of the Act requires that the Secretary of the
Interior designate or revise critical habitat based upon the best
scientific and commercial data available, after taking into
consideration the economic impact, impact to national security, and any
other relevant impact of specifying any particular area as critical
habitat. The Secretary may exclude any area from critical habitat if
she determines that the benefit of such exclusion outweighs the
benefits of specifying such area as part of the critical habitat,
unless the failure to designate such area as critical habitat will
result in the extinction of the species concerned.
Comment 3: Travis Air Force Base stated that in the August 6, 2003,
final designation (68 FR 46684) we indicated that the exclusion acreage
at Travis AFB is 9,651 acres. Travis AFB stated that the correct
acreage is 5,128 acres of fee owned land and 1,255 acres in lesser
interests, such as easements and rights of way.
Response: The acreage figures identified in the proposed rule
issued on December 27, 2004 (69 FR 77700), reflected the accumulated
critical habitat total for each of the species within the Travis Air
Force boundary. As a result the total acreage identified was higher.
Comment 4: One commenter stated that critical habitat has to be
occupied by the species at the time the species is listed, needs to
contain the features essential to the conservation of the species, and
may require special management considerations or protections. This
commenter stated that that the 10 acres under discussion in the San
Joaquin County Multiple Species Habitat Conservation Plan should
continue to be excluded because this area is already afforded special
management considerations or protections.
Our Response: We agree that this area is already under special
management consideration and afforded protection by virtue of the San
Joaquin County Multi-Species Habitat Conservation and Open Space Plan
and have excluded the area covered under this HCP from this
designation. For further discussion on the legal definition of critical
habitat, refer to our August 6, 2003, final rule (68 FR 46684).
Comment 5: During the comment period for the proposed rule (67 FR
59884) and the December 28, 2004, proposed rule (69 FR 77700), the
Mechoopda Tribe requested the exclusion of their land in Butte County
from critical habitat designation. The Mechoopda Tribe's Environmental
Department stated that they have implemented measures through a
comprehensive management plan to further the protection and
conservation of vernal pool ecosystems on their land.
Our Response: As a result of meeting with the Tribe and discussing
the details of their management plan, we have determined that it is
appropriate to exclude the Mechoopda lands from the current
designation. We recognize that the Tribe is implementing measures to
conserve existing locations of federally listed vernal pool species and
the habitat they occupy. In addition, we note that under the tribe's
existing management, vernal pool complexes have remained intact and
able to support the species that rely on them. For a more detailed
discussion summary of our comments regarding the exclusion of lands
occupied by the Tribe and a more detailed description of the Tribe's
voluntary measures to benefit the conservation of listed species,
please refer to the discussion later in this rule.
Comment 6: The Bureau of Land Management (BLM) requested that
critical habitat not be designated on the Carrizo Plains National
Monument due to current management and protection of vernal pool
resources within BLM's jurisdiction.
Our Response: The BLM's management plan implements measures to
conserve existing locations of federally listed vernal pool species and
their habitat. The Service is currently consulting on this plan through
the section 7 consultation process. If we determine that the lands of
the Carrizo Plains National Monument merits exclusion, we will solicit
additional comments on such an exclusion when we reopen the comment
period for the draft economic analysis in the spring of 2005. Those
comments and any comments already received will be fully considered
before sending a final rule to the Federal Register.
Comment 7: The Placer County Board of Supervisors stated that
Critical Habitat Unit 12 for the vernal pool fairy shrimp should be
excluded from designation because the Placer Legacy Habitat
Conservation Plan, which is currently under development, will provide
adequate protection of federally listed vernal pool species in this
region. The Board of Supervisors stated that because the Placer Legacy
HCP is similar to other HCPs, such as the Western Riverside Multiple
Species HCP, and would provide for the conservation of vernal pools and
listed vernal pool crustaceans, the Placer Legacy HCP should therefore
similarly be excluded from critical habitat designation.
Our Response: The scope of this notice was to seek comments on
those areas previously excluded for noneconomic reasons. However, we
will consider all comments we receive and if additional proposed
exclusions result from those comments, we will solicit additional
comments on exclusions when we re-open the comment period for the draft
economic analysis in the spring of 2005. Those comments and any
comments already received will be fully considered before sending a
final rule to the Federal Register.
Comment 8: One commenter stated that the existing designation of
critical habitat for vernal pool species should be expanded.
Specifically, areas adjacent to the Santa Rosa Plateau Ecological
Reserve should be considered for critical habitat designation because
[[Page 11146]]
these areas, as well as areas within the ER, are threatened by runoff
from development on adjacent unprotected lands.
Our Response: The area proposed as critical habitat within the
Santa Rosa Plateau Ecological Reserve has been excluded, as part of the
Western Riverside MSHCP, under 4(b)(2) of the Act. In our original
proposal we proposed to designate only those areas essential to the
conservation of the vernal pool fairy shrimp and the vernal pool
complexes in which it occurs. In our mapping of the area we believe we
captured those areas, which were essential to maintain water quality
and hydrology of the vernal pools and vernal pool complexes within the
proposed unit. We determined that areas outside the proposed designated
areas were not essential for the conservation of the species or its
habitat. In addition, the scope of this notice was to seek comments on
those areas previously excluded for noneconomic reasons. We will
solicit additional comments on exclusions when we reopen the comment
period for the draft economic analysis in the spring of 2005. Those
comments and any comments already received will be fully considered
before sending a final rule to the Federal Register.
Comment 9: One commenter requested that lands covered in the Skunk
Hollow vernal pool basin should continue to be excluded, and if
critical habitat designation is necessary, it should only include the
136-acre Barry Jones Wetland Mitigation Bank.
Our Response: This area is already under special management
considerations and afforded protection as part of the Western Riverside
County MSHCP. Therefore, we have determined that it would be
appropriate to exclude the area covered under this HCP from this
designation. For more detail on our reasons for exclusions please refer
to the specific discussion in this rule.
Comment 10: Two commenters stated that the Western Riverside
Multiple Species HCP is not designed to adequately review environmental
effects on unprotected vernal pool habitats in this area.
Our Response: Critical habitat is only one of many conservation
tools for federally listed species. HCPs are one of the most important
tools for conserving habitat and reconciling economic land use with the
conservation of listed species on non-Federal lands. Designation of
critical habitat does not afford protection to species or habitat
unless there is a federal nexus, lands protected under HCPs are
protected regardless of the designation of critical habitat. Section
4(b)(2) allows us to exclude from critical habitat designation areas
where the benefits of exclusion outweigh the benefits of designation,
provided the exclusion will not result in the extinction of the
species. We believe that in most instances, the benefits of excluding
HCPs from critical habitat designations will far outweigh the benefits
of including them. For this designation, we find that the benefits of
exclusion outweigh the benefits of inclusion for the Western Riverside
MSHCP issued for the covered federally listed species. In particular,
Section 10(a)(1)(B) of the Act states that HCPs must meet issuance
criteria, including minimizing and mitigating any take of the listed
species covered by the permit to the maximum extent practicable, and
that the taking must not appreciably reduce the likelihood of the
survival and recovery of the species in the wild.
Comment 11: Congressman Dennis Cardoza and one other commenter
concurred with our previous noneconomic exclusions of lands from
designation of critical habitat. In addition, they further stated that
all lands with conservation easements that are managed for the
protection of listed vernal pool species should also be excluded from
vernal pool critical habitat designation.
Our Response: The scope of this notice was to seek comments on
those areas previously excluded for non-economic reasons. We will
consider comments requesting additional exclusions and will propose any
additional exclusions with opportunity for comments when we reopen the
comment period for the draft economic analysis in the spring of 2005.
Those comments, and any comments already received, will be fully
considered before sending a final rule to the Federal Register.
Comment 12: Commenters associated with California Native Plant
Society (CNPS) and Butte Environmental Council stated that lands
excluded for policy and noneconomic reasons are essential to the
survival and recovery of endangered vernal pool species, and therefore
should be designated as vernal pool critical habitat. CNPS emphasized
that vernal pool habitat on Department of Defense lands should be
included in the designation of vernal pool critical habitat.
Our Response: There is minimal benefit from designating critical
habitat for the vernal pool species within areas that are currently
excluded because these lands, such as State-owned Wildlife Areas,
Ecological Reserves, National Fish and Wildlife Refuges and Hatcheries,
are already managed for the conservation of wildlife. HCPs that have
been excluded from the rule for the same reason, they are already
managed for conservation under Section 10(a)(1)(B) of the Act, which
states that HCPs must meet issuance criteria, including minimizing and
mitigating any take of the listed species covered by the permit to the
maximum extent practicable, and that the taking must not appreciably
reduce the likelihood of the survival and recovery of the species in
the wild. Furthermore, an HCP application must itself be consulted
upon. While this consultation will not look specifically at the issue
of adverse modification to critical habitat, unless critical habitat
has already been designated in the proposed plan area, it will
determine if the HCP permit would jeopardize the species in the plan
area. In addition, protections afforded by HCPs, management plans, and
other landscape management programs go beyond any protections provided
by a critical habitat designation. A critical habitat designation only
protects areas that are subject to a federal action. HCPs and other
management plans are not dependent on federal action to provide species
protection.
In response to the CNPS concerns regarding exclusions of Department
of Defense lands, section 4(b)(2) of the Act requires that the
Secretary of the Interior shall designate or revise critical habitat
based upon the best scientific and commercial data available, after
taking into consideration the economic impact, impact to national
security, and any other relevant impact of specifying any particular
area as critical habitat. The Secretary may exclude any area from
critical habitat if she determines that the benefit of such exclusion
outweighs the benefits of specifying such area as part of the critical
habitat, unless the failure to designate such area as critical habitat
will result in the extinction of the species concerned. The two AFBs
were not eligible for designation through operation of section
4(a)(3)(B) of the Act as they had approved INRMPs, which provided for
the conservation of the species. The two ANGR bases were excluded
through section 4(b)(2) of the Act, since the benefits of excluding
outweigh the benefits of including those vernal pool areas within the
designation. For a detailed discussion of our noneconomic exclusion
analysis used in our final designation of critical habitat for the 15
vernal pool species, please refer to our August 6, 2003, final
designation (68 FR 46684) and in the Exclusions section below.
Comment 13: One commenter stated that prior designations and
economic analyses do not properly account for the
[[Page 11147]]
recovery standard and the mitigation requirements expressed by the
court in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service,
378 F.3d 1059, 1070 (9th Cir. 2004). This commenter stated that certain
areas within Critical Habitat Unit 12 in western Placer County should
be excluded, specifically the Placer Vineyards site and the Rioso
property, because the Primary Constituent Elements (PCEs) are absent.
They also stated, along with an additional commenter, that other areas
outside this critical habitat unit should actually be included because
PCEs are present.
Our Response: With regard to including additional areas for
critical habitat designation, the scope of this notice was to reexamine
our previous noneconomic exclusions and to more fully explain our
rationale for any noneconomic exclusions we make subsequent to the re-
examination. We will consider all comments received, and if we propose
additional exclusions for non-economic reasons or any other reason, we
will propose those exclusions and solicit additional comments when we
reopen the comment period for the draft economic analysis in the spring
of 2005. Those comments and any comments already received will be fully
considered before sending a final rule to the Federal Register. We will
be considering the impact of the recent 9th Circuit decision (Gifford
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059,
1070 (9th Cir. 2004)) in the economic analysis conducted for this final
rule.
Comment 14: One commenter requested that the Service incorporate
results from Dr. Bob Holland's recent work regarding biogeographic
distribution of vernal pool species in relation to their edaphic (soil
related) requirements. The commenter also requested that the Service
link critical habitat designation to recovery plans as long as critical
habitat deadlines are enforced.
Our Response: It is the goal of the Service to utilize the most
recent scientific information available. In the development of this
designation, we contacted numerous species experts and other members of
the scientific community, including Dr. Holland. In developing critical
habitat designations, we analyze all pertinent scientific and
commercial information available to make our final determinations. This
information would include any scientific information that was used in
the development of recovery plans for the specific species. In the case
of the 15 vernal pool species, we used, among other sources of
information, scientific information gathered during the recovery
planning process. On November 18, 2004, the draft Vernal Pool Recovery
Plan for Vernal Pool Ecosystems in California and Southern Oregon was
published in the Federal Register (69 FR 67601). We used the scientific
information compiled in the draft recovery plan in this final
determination; however, we will re-examine the designation in light of
any significant information should we become aware of such information
and make a final determination by July 31, 2005.
Issue 2--Costs and Regulatory Burden
Comment 15: The military, notably the California Army National
Guard, specifically Camp Roberts and Fort Hunter Liggett, and the U.S.
Air Force, specifically Beale Air Force Base, requested that critical
habitat be excluded on the four bases. Designation of critical habitat
would increase the costs and regulatory requirements and hamper the
military from carrying out its mission objectives for the bases.
Designation of critical habitat would adversely affect national
security by diminishing the military's ability to support realistic and
effective military operations.
Our Response: We have not designated critical habitat on two AFBs
based on section 4(a)(3)(B) of the Act and excluded the two Army Bases
from final designation of critical habitat pursuant to section 4(b)(2)
of the Act. Please refer to the Relationship of Critical Habitat to
Military Lands section of this final rule for a detailed discussion of
our rationale for not including or excluding these military bases
pursuant to section 4(a)(3)(B) or 4(b)(2) of the Act.
Comment 16: The Placer County Board of Supervisors and one other
commenter stated that critical habitat designation within the County
places a disproportionate amount of the regulatory burden on western
Placer County. Western Placer County contains the infrastructure to
support the majority of the projected growth within the entire County
and, therefore, growth in this portion of the County would be hindered
by the regulatory burden of the designation of critical habitat.
Our Response: The scope of this notice and resulting analysis was
to seek comment on the noneconomic exclusions previously excluded in
our final determination of critical habitat (68 FR 46684). We will be
conducting a new economic analysis and will finalize economic
exclusions in the final rule in July 2005. This comment will also be
addressed at that time.
Comment 17: One commenter suggested that the National Wildlife
Refuges, State Wildlife Areas, and Ecological Reserves all provide
economic benefits from wildlife viewing, photography, hunting, and
fishing. The Commenter requested that the Service quantify these
benefits using visitation records as part of the Service's re-
evaluation of special lands exclusions.
Our Response: We agree that National Wildlife Refuges, State
Wildlife Areas and Ecological Reserves provide benefits in the form of
recreational opportunities. However, these benefits will remain
regardless of whether these areas are designated as critical habitat.
These benefits are not due to a critical habitat designation, rather,
they result from the legal authorities establishing these areas, such
as the National Wildlife Refuge System Administration Act, the Refuge
Recreation Act, and other authorities, all of which are independent of
critical habitat designations.
Issue 3--Procedural Concerns
Comment 18: One commenter stated that the 30-day comment period for
the proposed rule violated 50 CFR 424.16(c)(2) and requested that we
extend the comment period on the re-evaluation of noneconomic
exclusions for a total or 60 days to allow for additional outreach to
interested parties.
Our Response: An additional public comment period of at least 30
days will open once the draft economic analysis has been completed
prior to the finalization of the rule in July.
Comment 19: One commenter stated that the maps of the lands being
considered for removal from the exempt status were not readily
available and accessible to the public in a timely manner.
Our Response: Maps and Geographic Information System (GIS) maps of
the final designation published in August of 2003 (68 FR 46684) were
available through our Sacramento and Regional Web sites as identified
in the proposed rule (69 FR 77700). Specific maps identifying the
exclusion areas and any other information requested by the public were
made available upon request on an individual basis. Because this
rulemaking is subject to a court-imposed deadline, the accelerated
schedules of this designation as well as budget and staffing
constraints had left us with a limited amount of time and resources to
post maps for the December 28, 2004, Federal Register document
specifically identifying each exclusion area.
[[Page 11148]]
Comment 20: One commenter stated that the Interior Secretary should
not use broad discretion to override critical habitat designation
decisions that are made by Service biologists, as exemplified by the
proposed special lands exemptions, because it opens the door for
political manipulation. The commenter noted that economic factors are
important and relevant, but should not be allowed to impede recovery,
particularly when interim analysis fails to quantify benefits. In
addition, this commenter stated that biology, rather than politics,
should be the driving force behind critical habitat designation.
Our Response: Section 4(b)(2) of the Act requires us to designate
critical habitat on the basis of the best scientific and commercial
information available, and to consider the economic and other relevant
impacts of designating a particular area as critical habitat. We may
exclude areas from critical habitat upon a determination that the
benefits of exclusions outweigh the benefits of specifying such areas
as critical habitat. The Congressional record is clear that Congress
contemplated occasions where the Secretary could exclude the entire
designation. In addition, the discretion that Congress anticipated
would be exercised in Section 4(b)(2) of the Act is extremely broad.
``The consideration and weight given to any particular impact is
completely within the secretary's discretion'' (Congressional Research
Service 1982). We cannot exclude areas from critical habitat when the
exclusion will result in the extinction of the species concerned. We
will be analyzing the economic costs associated with the proposed
designation and re-evaluate the economic exclusions based on the new
analysis when it becomes available. The public will have an opportunity
to comment on the analysis at that time.
Summary of Changes From the Previous Final Rule
In development of the original final designation of critical
habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants
in California and Southern Oregon, significant revisions to the
proposed critical habitat designation were made based on review of
public comments received on the proposed designation, the Draft
Economic Analysis (DEA), and further evaluation of existing protection
on lands proposed as critical habitat. These revisions relied on legal
authorities and requirements provided in the Act. This re-evaluation of
those exclusions relies on the same legal authorities.
In analyzing the proposed exclusions, we contacted representatives
from State Wildlife Areas and Ecological Reserves, the four military
bases, and the Mechoopda Tribe to verify that no significant changes to
vernal pool habitat or their management have occurred since the August
6, 2003, final rule. After reviewing the public comments received and
the previously proposed and final designations of critical habitat for
the 4 vernal pool crustaceans and 11 vernal pool plants in California
and southern Oregon, we find that the noneconomic exclusions were based
on the best available science and that the benefits of excluding these
areas outweighs the benefits of inclusion. As a result we have
determined that no significant boundary changes to the noneconomic
exclusions should occur to the August 6, 2003, final rule (68 FR
46684). Where we have received new information was included in our
reanalysis. In addition, we have expanded our discussion of the
analysis conducted on each of the exclusions.
Critical Habitat
This rule focuses on the reanalysis and evaluation of the non-
economic exclusions from critical habitat. For that reason, much of the
August 6, 2003, final rule describing the basis for designation is
unchanged. Accordingly, for all discussions other than those related to
non-economic exclusions we refer you to the August 6, 2003, final
designation (68 FR 46684).
On the basis of the final economic analysis and other relevant
impacts, as outlined under section 4(b)(2) of the Act, and the economic
effects associated with this rule, certain exclusions were made to our
final designation. The Service will be reanalyzing the economic effects
of the critical habitat designation over the entire designation. Our
original rule excluded five Counties: Butte, Madera, Merced,
Sacramento, and Solano Counties. That exclusion was based on a
comparison of the economic effects of the designation among the
counties, and excluded those with relatively higher effects. At the
time, the economic effects were aggregated on a countywide basis, which
limited our ability to make exclusions on anything less than a county-
level. Pursuant to the October 28, 2004, court order, the Service is
reanalyzing the economic effects of the entire designation and will
make its final critical habitat designation and any economic exclusions
based on this more detailed analysis. A Federal Register notice
announcing the availability of the draft economic analysis will be
published and the public will have the opportunity to comment on the
document.
Section 4(a)(3)(B) of the Act
Section 318 of fiscal year 2004 the National Defense Authorization
Act (Public Law No. 108-136) amended the Endangered Species Act to
address the relationship of Integrated Natural Resources Management
Plans (INRMPs) to critical habitat by adding a new section 4(a)(3)(B).
This provision prohibits the Service from designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are subject
to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary of the Interior determines in writing that such
plan provides a benefit to the species for which critical habitat is
proposed for designation.
This provision was added subsequent to our final designation of
critical habitat in 2003. However, its provisions apply to this
designation. Accordingly the Service does not have the authority to
designate Beale Air Force Base or Travis Air Force Base as those
facilities have existing INRMPs that provide a benefit to the species.
Noneconomic Exclusions Under Section 4(b)(2) of the Act
As noted earlier, section 4(b)(2) of the Act states that critical
habitat shall be designated, and revised, on the basis of the best
available scientific data after taking into consideration the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. An area may be
excluded from critical habitat if it is determined that the benefits of
exclusion outweigh the benefits of specifying a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species. The following
paragraphs will provide detail as to the basis for the non-economic
exclusions that we have analyzed and found appropriate.
A total of approximately 1,184,513 ac (479,356 ha) of land falls
within the boundaries of designated critical habitat of those lands we
propose to exclude:
Lands within the boundaries of Habitat Conservation Plans,
National Wildlife Refuge lands and National fish hatchery
lands (33,097 ac (13,394 ha)),
State lands within ecological reserves and wildlife
management areas (20,933 ac (8,471 ha)),
Department of Defense lands within Fort Hunter Liggett
Army installation (16,583 ac (6,711 ha)),
Tribal lands managed by the Mechoopda Tribe (644 ac (261
ha)),
[[Page 11149]]
The Santa Rosa Plateau Ecological Reserve (10,200 ac
(4,128 ha)) from the final designation.
Habitat Conservation Plans
(1) Benefits of Inclusion
The benefits of including HCPs or NCCP/HCPs in critical habitat are
small to nonexistent. The principal benefit of any designated critical
habitat is that federally funded or authorized activities in such
habitat that may affect it require consultation under section 7 of the
Act. Such consultation would ensure that adequate protection is
provided to avoid adverse modification of critical habitat. An HCP
application must be itself consulted upon. While this consultation will
not look specifically at the issue of adverse modification to critical
habitat, unless critical habitat has already been designated within the
proposed plan area, it will determine if the HCP jeopardizes the
species in the plan area. Therefore, any federal activity that is
consistent with the terms of the HCP and IA would be very unlikely to
have an effect on the primary constituent elements of habitat that
would otherwise be designated as critical habitat would not serve the
intended conservation role for the species.
HCPs/NCCPs are already designed to ensure the long-term survival of
covered species within the entire plan area rather than just those
areas with a federal nexus. Where we have approved HCPs or NCCP/HCPs,
lands will normally be protected in reserves and other conservation
lands by the terms of the HCPs or NCCP/HCPs and their Implementing
Agreements (IAs). These HCPs or NCCP/HCPs and IAs include management
measures and protections for conservation lands designed to protect,
restore, and enhance their value as habitat for covered species and
provide the same benefits for any species that relies on the same
ecosystems.
Another possible benefit to including these lands is that the
designation of critical habitat can serve to educate landowners and the
public regarding the potential conservation value of an area. This may
focus and contribute to conservation efforts by other parties by
clearly delineating areas of high conservation value for certain
species. However in the case of HCCP/NCCPs the public notice and
comment and final publication in the Federal Register of the final
provisions provide virtually the same notice as a critical habitat
designation.
Because of the above, we conclude that any benefits that accrue to
habitat in an HCP from a critical habitat designation are small to non-
existant.
(2) Benefits of Exclusion
The benefits of excluding HCPs from critical habitat are
significant. In an approved HCP, lands that might ordinarily be
identified as critical habitat for covered species will normally be
protected in reserves and other conservation lands by the terms of the
HCP and its associated implementing agreement (IA). Since these large
regional HCPs address land use within the plan boundaries, habitat
issues within the plan boundaries have been addressed in the HCP and
the consultation on its associated permit. In the consultation we are
required to if the action jeopardizes the listed species. In the case
of critical habitat we analyze whether the function of the habitat for
recovery of the species will be reduced or eliminated by the proposed
action.
Designating these areas will likely have an adverse impact on the
partnerships that we have developed with the local jurisdiction(s) and
project proponents in the development of the HCP and NCCP/HCP, and in
the management of the other excluded areas to benefit the species.
Excluding these areas will promote future partnerships, and avoid
duplicative regulatory burden on cooperating parties. We have received
substantial comments from various parties in comment periods on this
and many other critical habitat rules that those regulatory burdens can
be significant to private and public parties. In part, it is to avoid
the regulatory costs associated with project-by-project consultations
that provides an incentive for private landowners to enter into HCPs.
The Service achieves far more conservation when entire regions can be
subject to the HCP permit issuance standards instead of just projects
with a federal nexus. Failure to exclude HCPs from critical habitat
removes any incentive for landowners to voluntarily participate in HCPs
and thus removes any protection for lands with no federal nexus.
San Joaquin County Multiple Species Habitat Conservation Plan (MSHCP)
The San Joaquin County Multi-Species Conservation Plan (SJMSCP)
covers the entirety of San Joaquin County and identifies the vernal
pool fairy shrimp and the vernal pool tadpole shrimp as covered
species. The SJMSCP has identified areas where growth and development
are expected to occur (build-out areas). A portion of one of these
build-out areas overlaps with the San Joaquin Unit 18 for vernal pool
fairy shrimp. The SJMSCP has been finalized and includes participants
from seven cities; the County of San Joaquin, the San Joaquin Council
of Governments; various water districts within the County; the
California Department of Transportation; East Bay Municipal Utility
District; and the San Joaquin Area Flood Control District. The SJMSCP
is a subregional plan under the State's Natural Community Conservation
Planning (NCCP) program and was developed in cooperation with
California Department of Fish and Game (CDFG). Within the county wide
planning area of the SJMSCP, approximately 71, 837 ac (29,071 ha) of
diverse habitats are proposed for conservation. The proposed
conservation of 71, 837 ac (29,071 ha) will compliment other, existing
natural and open space areas that are already conserved through other
means (e.g., State Parks, USFWS, and County Park lands). For a complete
discussion of this HCP, please refer to our August 6, 2003, final
designation (68 FR 46684).
Western Riverside Multiple Species Habitat Conservation Plan (MSHCP)
The Western Riverside MSHCP has been finalized since the issuance
of the August 6, 2003, rule. The Western Riverside MSHCP includes
participants from 14 cities; the County of Riverside, including the
County Flood Control and Water Conservation District; the County Waste
Department; the California Department of Transportation; and the
California Department of Parks and Recreation. The Western Riverside
MSHCP is a subregional plan under the State's Natural Community
Conservation Planning (NCCP) program and was developed in cooperation
with California Department of Fish and Game (CDFG). Within the 1.26-
million-acre (510,000-ha) planning area of the MSHCP, approximately
153,000 ac (62,000 ha) of diverse habitats are proposed for
conservation. The proposed conservation of 153,000 ac (62,000 ha) will
compliment other, existing natural and open space areas that are
already conserved through other means (e.g., State Parks, USFS, and
County Park lands). For a complete discussion of this HCP, please refer
to our August 6, 2003, final designation (68 FR 46684).
The Skunk Hollow mitigation bank (the correct title is the Barry
Jones Wetland Mitigation Bank) and the Santa Rosa Plateau Preserve are
within the planning area of the Western Riverside County MSHCP. Both of
these areas are conserved as part of the Western Riverside County
MSHCP. The management actions undertaken as part of the Western
Riverside County
[[Page 11150]]
MSHCP benefit the endangered Riverside fairy shrimp, threatened
Navarretia fossalis, and the endangered Oructtia californica-vernal
pool species, which are included as covered species under this regional
HCP, will provide equal conservation benefits for the vernal pool fairy
shrimp.
The Skunk Hollow vernal pool basin (Unit 35) consists of a single,
large vernal pool and its essential associated watershed in western
Riverside County and is part of the Western Riverside County MSHCP.
Several federally listed species have been documented as occurring in
the Skunk Hollow vernal pool basin. These include the vernal pool fairy
shrimp (Simovich, in litt. 2001), the Riverside fairy shrimp (Service
2001), Navarretia fossalis, and Orcuttia californica (Service 1998).
The vernal pool complex and watershed are also currently protected as
part of a reserve established within an approved wetland mitigation
bank in the Rancho Bella Vista HCP area, and as part of the
conservation measures contained in the Assessment District 161
Subregional HCP (AD161 HCP), all of which are now incorporated into the
Western Riverside County MSHCP. Although the Skunk Hollow does not
identify the vernal pool fairy shrimp as a covered species it does list
the endangered Riverside fairy shrimp as a covered species and protects
the vernal pool habitat within the area. Since a critical habitat
designation is designed to conserve the habitat type or ecosystem (in
this case vernal pools) and not the species specifically, the HCP and
associated reserve and mitigation bank don't need to name the species
specifically in order to provide benefits, as long as the ecosystem
upon which the species relies is preserved. In this case, since species
which rely on the same ecosystem are the target of the HCP and
mitigation bank, we are able to conclude that the plan will provide the
necessary management to protect the critical habitat. In addition,
since the entire habitat area is addressed under the HCP, preserve, and
mitigation bank and not just habitat with a federal nexus, the existing
management already provides more protection than can be provided by a
critical habitat designation.
The Western Riverside County MSHCP also encompasses lands within
the Santa Rosa Plateau Ecological Reserve (SRPER) (Unit 34 for vernal
pool fairy shrimp), an area that covers approximately 8,300 ac (3360
ha) near the town of Murrieta, California. The SRPER is situated on a
large mesa composed of basaltic and granitic substrates and contains
one of the largest vernal pool complexes remaining in southern
Riverside County. Several endemic vernal species are known to occur
within the complex, including the vernal pool fairy shrimp, Riverside
fairy shrimp, Santa Rosa fairy shrimp (Linderiella santarosae),
Orcuttia californica, Brodiaea filifolia (Thread-leaved brodiaea), and
Eryngium aristulatum var. parishii (San Diego button-celery.)
Established in 1984, the SRPER is owned by The Nature Conservancy
(TNC), and is cooperatively managed by TNC, the Riverside County
Regional Park and Open Space District, CDFG, and the Service.
TNC has transferred ownership of SRPER to CDFG. As a signatory to
the agreement, CDFG has will oversee the SRPER in a manner consistent
with the present conservation management scheme agreed to by the
cooperating agencies. The CDFG has a broad authority to protect lands
and conserve species (Fish and Game Code Sec. Sec. 2700 et seq.).
Designation of critical habitat would not have any beneficial effect of
the present management of the vernal pool complex on the SRPER.
(1) Benefits of Inclusion
The principal benefit of any designated critical habitat is that
federally funded or authorized activities in such habitat require
consultation under section 7 of the Act. Such consultation would ensure
that adequate protection is provided to avoid adverse modification of
critical habitat. Where HCPs are in place, our experience indicates
that this benefit is small or nonexistent. The issuance of a permit
(under section 10(a) of the Act) in association with an HCP application
is subject to consultation under section 7(a)(2) of the Act. During
consultation on permit issuance, we must address the issue of
destruction or adverse modification of critical habitat for vernal pool
species and any other species protected by the plan. In an approved
HCP, lands we ordinarily would define as critical habitat for covered
species will normally be protected in reserves and other conservation
lands by the terms of the HCP and its its associated implementing
agreement (IA). Since these large regional HCPs address land use within
the plan boundaries, habitat issues within the plan boundaries have
been addressed in the HCP and the consultation on the permit associated
with the HCP. This requires us to make a determination as to the
appreciable reduction in the survival and recovery of a listed species,
in the case of critical habitat by reducing the function of the habitat
so designated. Therefore, any federal activity that is consistent with
the terms of the HCP and IA would be very unlikely to have an effect on
the primary constituent elements of habitat that would otherwise be
designated as critical habitat would not serve the intended
conservation role for the species.
We have determined that the management and protections afforded the
vernal pool fairy shrimp in the build-out areas through the SJMSHCP and
the Western Riverside County MSHCP are adequate for the long-term
conservation of these species. In addition, protections afforded by
HCPs, management plans, and other landscape management programs go
beyond any protections provided by a critical habitat designation. A
critical habitat designation only protects areas that are subject to a
federal action. HCPs and other management plans are not dependent on
federal action to provide species protection. The Western Riverside
County MSHCP provides protection for the affected vernal pool complex
and its associated watershed in perpetuity. Therefore it addresses the
primary conservation needs of the species by protecting the ecosystem
upon which it relies. The management and protections afforded the
vernal pool and Riverside fairy shrimp provide for the long-term
conservation of this pool and vernal pool fairy shrimp.
The education benefits of critical habitat, including informing the
public of areas that are important for long-term survival and
conservation of the species, are essentially the same as those that
would occur from the public notice and comment procedures required to
establish a HCP or NCCP/HCP, as well as the public participation that
occurs in the development of many regional HCPs or NCCP/HCPs.
Therefore, the benefits of designating these areas as critical habitat
are low.
(2) Benefits of Exclusion
In contrast, the benefits of excluding these areas from critical
habitat, are more significant. Designating these areas will likely have
an adverse impact on the partnerships that we have developed with the
local jurisdiction and project proponents in the development of the HCP
and NCCP/HCP, and in the management of the other excluded areas to
benefit the species. Excluding these areas will promote future
partnerships, and avoid duplicative regulatory burden on cooperating
parties. We have received substantial comments from various parties in
comment periods on this and many other critical habitat rules that
those regulatory burdens can be significant to private and public
[[Page 11151]]
parties. Excluding these areas from critical habitat removes those
concerns and provides an incentive to place lands that would not
ordinarily be protected under regulatory management to protect the
ecosystem.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Section 4(b)(2) of the Act requires us to consider other relevant
impacts, in addition to economic and national security impacts, when
designating critical habitat. Section 10(a)(1)(B) of the Act authorizes
us to issue to non-Federal entities a permit for the incidental take of
endangered and threatened species. This permit allows a non-Federal
landowner to proceed with an activity that is legal in all other
respects, but that results in the incidental taking of a listed species
(i.e., take that is incidental to, and not the purpose of, the carrying
out of an otherwise lawful activity). The Act specifies that an
application for an incidental take permit must be accompanied by a
conservation plan, and specifies the content of such a plan. The
purpose of such an HCP is to describe and ensure that the effects of
the permitted action on covered species are adequately minimized and
mitigated, and that the action does not appreciably reduce the survival
and recovery of the species.
Approved and permitted HCPs are designed to ensure the long-term
survival of covered species within the plan area. Where we have an
approved HCP, the areas we ordinarily would designate as critical
habitat for the covered species will be protected through the terms of
the HCPs and their IAs. These HCPs and IAs include management measures
and protections that are crafted to protect, restore, and enhance their
value as habitat for covered species. We have reviewed and evaluated
HCPs, NCCP/HCPs, and other cooperatively managed lands at the SRPER
currently with approved and implemented management plans within the
areas being designated as critical habitat for the vernal pool
crustaceans and plants. Based on this evaluation, we find that the
benefits of exclusion outweigh the benefits of designating the Western
Riverside County MSHCP, and a portion of the San Joaquin County NCCP/
MSHCP as critical habitat.
For these reasons, then, we believe that designation of critical
habitat has little benefit in areas covered by these HCPs, as the
referenced HCP and its associated IA are legally operative and
adequately protects the habitat or ecosystem upon which the listed
species rely and for which critical habitat is being designated. We
also believe that the measures being taken by the managers of the Santa
Rosa Plateau Ecological Reserve will conserve and benefit the vernal
pool fairy shrimp. The exclusion of the HCP areas and Ecological
Reserve from the designation will not result in the extinction of the
vernal pool fairy shrimp.
Relationship of Critical Habitat to National Wildlife Refuge and
National Fish Hatchery Lands
We have determined that proposed critical habitat units on the
Sacramento, San Francisco Bay, San Luis, and Kern National Wildlife
Refuge Complexes, and the Coleman National Fish Hatchery Complex,
warrant exclusion pursuant to section 4(b)(2) of the Act because the
benefits of excluding these lands from final critical habitat outweigh
the benefits of their inclusion. For a complete discussion of these
NWRs and NFHLs, please refer to our August 6, 2003 final designation
(68 FR 46684).
(1) Benefits of Inclusion
There is minimal benefit from designating critical habitat for the
vernal pool species within National Wildlife Refuge and National Fish
Hatchery lands because these lands are already managed for the
conservation of wildlife. The benefits of including these lands are
low, since their purpose is to preserve natural resource values, a
purpose that is not incompatible with critical habitat designation.
Critical habitat designation provides little gain in the way of
increased recognition for special habitat values on lands that are
expressly managed to protect and enhance those values. All of these
refuges are developing comprehensive resource management plans that
will provide for protection and management of all trust resources,
including federally listed species and sensitive natural habitats.
These plans, and many of the management actions undertaken to implement
them must also complete consultation under section 7 of the Act. The
comprehensive resource management plan for the Kern National Wildlife
Refuge Complex has been completed and the associated biological opinion
concluded that its implementation would not jeopardize the continued
existence of these species (Service 2004). Therefore, any federal
activity that is consistent with the terms of the comprehensive
resource management plan would be very unlikely to have an effect on
the primary constituent elements of habitat that would otherwise be
designated as critical habitat would not serve the intended
conservation role for the species.
(2) Benefits of Exclusion
The consultation requirement associated with critical habitat on
the National Wildlife Refuge and Fish Hatchery lands would require the
use of resources to ensure regulatory compliance that could otherwise
be used for on-the-ground management of the targeted listed or
sensitive species. Therefore, the benefits of exclusion include
relieving additional regulatory burden that might be imposed by the
critical habitat, which could divert resources from substantive
resource protection to procedural regulatory efforts.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We believe that the benefit of including these lands in critical
habitat is low because they already are publicly owned and managed to
protect and enhance unique and important natural resource values. In
addition, by designating these lands the Service would be required to
conduct internal consultations on activities to determine whether they
adversely modify critical habitat. This extra and unnecessary
regulatory process will require funding that must be diverted from the
management of the resource. The Service would prefer to allocate
taxpayer funds to actions that more directly benefit species on the
ground. Exclusion of these lands will not increase the likelihood that
management activities would be proposed which would appreciably
diminish the value of the habitat for conservation of the species.
Further, such exclusion will not result in the extinction of the vernal
pool species. We, therefore, conclude that the benefits of excluding
refuge and Fish Hatchery lands from the final critical habitat
designation outweigh the benefits of including them.
In accordance with section 4(b)(2) of the Act, we have excluded
lands within the Sacramento, San Francisco Bay, San Luis, and Kern
National Wildlife Refuge Complexes, and the Coleman National Fish
Hatchery Complex from final critical habitat.
Relationship of Critical Habitat to State-Managed Ecological Reserves
and Wildlife Areas
We contacted local California Department of Fish and Game (CDFG)
resource managers and staff at the various locations to verify that no
significant changes to vernal pool habitat and the management of this
habitat have occurred since the August
[[Page 11152]]
6, 2003, final rule. These areas continue to be managed for the benefit
of common and special-status species and their habitats.
We proposed as critical habitat, but have now considered for
exclusion from the final designation, the CDFG owned lands within the
Battle Creek, Big Sandy, Grizzly Island, Hill Slough, North Grasslands,
and Oroville Wildlife Areas and State-owned lands within Allensworth,
Boggs Lake, Butte Creek Canyon, Calhoun Cut, Carrizo Plains, Dales
Lake, Fagan Marsh, Phoenix Field, San Joaquin River, Stone Corral, and
Thomes Creek Ecological Reserves. These State Managed Ecological
Reserves and Wildlife Areas were excluded from critical habitat
designation in our August 6, 2003, final designation (68 FR 46684).
(1) Benefits of Inclusion
The designation of critical habitat would require consultation with
us for any action undertaken, authorized, or funded by a Federal agency
that may affect the species or its designated critical habitat.
However, the management objects for State ecological reserves already
include specifically managing for targeted listed and sensitive
species; therefore, the benefit from additional consultation is likely
also to be minimal.
The State of California establishes ecological reserves to protect
threatened or endangered native plants, wildlife, or aquatic organisms
or specialized habitat types, both terrestrial and nonmarine aquatic,
or large heterogeneous natural gene pools (Fish and Game Code Sec.
1580). They are to be preserved in a natural condition, or are to be
provided some level of protection as determined by the commission, for
the benefit of the general public to observe native flora and fauna and
for scientific study or research (Fish and Game Code Sec. 1584).
Wildlife areas are for the purposes of propagating, feeding, and
protecting birds, mammals, and fish (Fish and Game Code Sec. 1525);
however, they too provide habitat and are managed for the benefit of
listed and sensitive species (CDFG in litt. 2003).
Take of species except as authorized by State Fish and Game Code is
prohibited on both State ecological reserves and wildlife areas (Fish
and Game Code Sec. 1530 and Sec. 1583). While public uses are
permitted on most wildlife areas and ecological reserves, such uses are
only allowed at times and in areas where listed and sensitive species
are not adversely affected (CDFG in litt. 2003). The management
objectives for these State lands include: ``to specifically manage for
targeted listed and sensitive species to provide protection that is
equivalent to that provided by designation of critical habitat; to
provide a net benefit to the species through protection and management
of the land; to ensure adequate information, resources, and funds are
available to properly manage the habitat; and to establish conservation
objectives, adaptive management, monitoring and reporting processes to
assure an effective management program, and monitoring and reporting
processes to assure an effective management program (CDFG, in litt.
2003).'' In summary, we believe that the benefits of inclusion for
these lands are minimal as these lands already are publicly owned and
managed to protect and enhance unique and important natural resource
values. Therefore, any federal activity that is consistent with the
State code for activity on both State ecological reserves and wildlife
areas would be very unlikely to have an effect on the primary
constituent elements of habitat that would otherwise be designated as
critical habitat would not serve the intended conservation role for the
species.
(2) Benefits of Exclusion
While the consultation requirement associated with critical habitat
on the CDFG ecological reserves and wildlife areas add little benefit,
it would require the use of resources to ensure regulatory compliance
that could otherwise be used for on-the-ground management of the
targeted listed or sensitive species, in addition, there is no
guarantee that any federal action that would require consultation would
take place on such as the state preserves. In the past, the State has
expressed a concern that the designation of these lands and associated
regulatory requirements may cause delays that could be expected to
reduce their ability to respond to vernal pool management issues that
arise on the ecological reserves and wildlife areas. Therefore, the
benefits of exclusion include relieving additional regulatory burden
that might be imposed by the designation of critical habitat for vernal
pool species, which could divert resources from substantive resource
protection to procedural regulatory efforts.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We believe that the benefits of inclusion for these lands are low
as these lands already are publicly-owned and managed by a wildlife
agency to protect and enhance unique and important natural resource
values. Therefore, designation of critical habitat would add little
value. The benefits of exclusion are higher, as federal actions on
these lands may result in the need for consultation, most often on
activities that would enhance wildlife conservation. These
consultations would result in additional administrative burdens without
significant accompanying conservation benefits.
We, therefore, conclude that the benefits of excluding CDFG
ecological reserves and wildlife areas from the final critical habitat
designation outweigh the benefits of including them. Such exclusion
will not result in the extinction of the vernal pool species. Further,
we do not believe that such exclusion will increase the likelihood that
activities would be proposed that would appreciably diminish the value
of the habitat for the conservation of these species.
In accordance with section 4(b)(2) of the Act, we have excluded
California Department of Fish and Game-owned lands within the Battle
Creek, Big Sandy, Grizzly Island, Hill Slough, North Grasslands, and
Oroville Wildlife Areas and State-owned lands within Allensworth, Boggs
Lake, Butte Creek Canyon, Calhoun Cut, Carrizo Plains, Dales Lake,
Fagan Marsh, Phoenix Field, San Joaquin River, Stone Corral, and Thomes
Creek Ecological Reserves.
Relationship of Critical Habitat to Military Lands
As stated above we are prohibited from designating Military lands
with approved INRMPs as critical habitat according to section
4(a)(3)(B) of the Act as long as the Secretary of the Interior
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.
Section 4(b)(2) of the Act requires us to base critical habitat
designations on the best scientific and commercial data available,
after taking into consideration the economic and any other relevant
impact of specifying any particular area as critical habitat. It also
requires us to gather information regarding the designation of critical
habitat and the effects thereof from all relevant sources, including
the Unites States Air Force and the United States Army. The following
discussions are provided on Travis AFB, Beale AFB, Camp Roberts, and
Fort Hunter Liggett.
Travis Air Force Base
Travis AFB has several vernal pool complexes that support the
vernal pool fairy shrimp and Lasthenia conjugens and also contain PCEs
for Neostapfia
[[Page 11153]]
colusana, Conservancy fairy shrimp, Tuctoria mucronata, and vernal pool
tadpole shrimp. As a result of wetland surveys, Travis AFB had
identified 235 vernal pools on approximately 100 ac (40 ha) of the
1,100 ac (445 ha) that are not developed on the base. To date, only
Lasthenia conjugens and the vernal fairy shrimp have been discovered on
Travis AFB within these 100 ac (40 ha). Travis AFB has a Service
approved INRMP in place that provides a benefit for the vernal pool
fairy shrimp and Lasthenia conjugens and provides protection of the
PCEs for Neostapfia colusana, Conservancy fairy shrimp, Tuctoria
mucronata, and vernal pool tadpole shrimp. As a result we are
prohibited from designating critical habitat on Travis AFB in
compliance with our section 4(a)(3)(B) responsibilities.
Beale Air Force Base
Beale AFB has several substantial vernal pool complexes that
support the vernal pool fairy shrimp and vernal pool tadpole shrimp,
especially on the western side of the base. Beale AFB completed their
INRMP in 1999. The completed INRMP provides for management and
conservation of vernal pools with the base and establishes a Vernal
Pool Conservation and Management Area to protect vernal pool complexes
on the western side of the base. Beale AFB has provided an updated
INRMP for the Service's review. The Beale AFB is also currently
preparing a Habitat Conservation Management Plan (HCMP) for the area.
We will consult with Beale AFB under section 7 of the Act on the
development and implementation of the revised INRMP, HCMP and base
comprehensive plan. A final revised and Service approved INRMP is
expected to be completed by March 2005. Beale AFB has a Service
approved INRMP in place that provides a benefit for the vernal pool
fairy shrimp and vernal pool tadpole shrimp. As a result we are
prohibited from designating critical habitat on Beale AFB in compliance
with our section 4(a)(3)(B) responsibilities.
Camp Roberts
Camp Roberts has substantial vernal pool complexes that support the
vernal pool fairy shrimp. Camp Roberts completed their INRMP in 1999.
The completed INRMP provides for the vernal pool fairy shrimp. We will
consult with Camp Roberts under section 7 of the Act on the development
and implementation of the INRMP. Camp Roberts has a final INRMP in
place that provides a benefit for the vernal pool fairy shrimp. As a
result we are prohibited from designating critical habitat on Camp
Roberts (13,247 ha (33,117 ac)) in compliance with our section
4(a)(3)(B) responsibilities.
Fort Hunter Liggett
Fort Hunter Liggett (6,519 ha (16,298 ac)) and Camp Roberts (13,247
ha (33,117 ac)) occur in San Luis Obispo and Monterey Counties. Fort
Hunter Liggett has submitted draft INRMPs for our review. We are
currently reviewing the INRMPs and expect completion of the section 7
consultation by April 2005. Fort Hunter Ligget has several substantial
vernal pool complexes that support the vernal pool fairy shrimp.
(1) Benefits of Inclusion
Inclusion of these military lands could provide additional areas of
conserved species habitat. However, the principal benefit of any
designated critical habitat is that federally funded or authorized
activities in such habitat that may affect it require consultation
under section 7 of the Act. Such consultation would ensure that
adequate protection is provided to avoid adverse modification of
critical habitat. The military also has an obligation under the Sykes
Act, and Section 7(a)(1) of the Act to conserve threatened and
endangered species on lands under its jurisdiction. Therefore, the
benefits of inclusion are low.
(2) Benefits of Exclusion
Military operations in training areas with listed fairy shrimp at
Fort Hunter Liggett could be modified, activities affected include the
use of field artillery pieces, range training, drop zone use, and use
of tank trails or roads. One of these training areas contains a multi-
purpose range complex that only occurs at four military bases in the
country (FHL 2002b). Consistent access to the facility is critical
because comparable facilities at other locations are scheduled for use
several months to years in advance. Initiating and completing section 7
consultations that would arise from a critical habitat designation
would likely result in alterations to, and delays in, training
schedules at the multi-purpose range complex. If critical habitat is
designated on these bases, the military would need to consider and
possibly implement alternatives that modify the timing, location, and
intensity of training activities. Failure to complete the training and
activities these bases are intended for would adversely affect national
security.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding Fort Hunter Liggett as critical habitat
for vernal pool fairy shrimp (Unit 29) outweigh the benefits of
including them as critical habitat for vernal pool species. We base
this determination on the need for maintaining mission-critical
military training activities. Further, we have determined that
excluding Fort Hunter Liggett will not result in the extinction of the
vernal pool fairy shrimp.
Relationship of Critical Habitat to Tribal Lands
Section 4(b)(2) of the Act requires us to gather information
regarding the designation of critical habitat and the effects thereof
from all relevant sources, including Indian Pueblos and Tribes. In
accordance with Secretarial Order 3206, American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act
(June 5, 1997); the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments, and Executive Order 13175, we recognize the need to
consult with federally recognized Indian Tribes on a Government-to-
Government basis. The Secretarial Order 3206 ``American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act (1997)'' provides that critical habitat should not be
designated in an area that may impact Tribal trust resources unless it
is determined to be essential to conserve a listed species.
The Benefits of Exclusion Outweigh the Benefits of Inclusion
The benefits of including the Tribe's land are limited to minor
educational benefits. Because one or more of the species occupies all
these areas, consultation on federal actions will occur regardless of
whether critical habitat is designated. While some additional benefit
might accrue from these adverse modification analyses, we expect them
to be small. Tribal areas represent a small proportion of this
designation and the tribe has demonstrated the will and ability to
manage these lands in a manner that preserves their conservation
benefits. The benefits of excluding these areas from being designated
as critical habitat are more significant, and include our policy of
maintaining a government-to-government relationship with tribes, as
[[Page 11154]]
well as encouraging the continued development and implementation of
special management measures. For Tribal Lands, the Mechoopda Tribe has
their own environmental agency, the Mechoopda Environmental Protection
Agency, which is responsible for the management of the Tribe's natural
resources, and which recognizes the importance of implementing
conservation measures that will contribute to the conservation of
federally listed species on their lands. The Mechoopda Tribe have
already demonstrated their willingness to work with us to address the
habitat needs of listed species that may occur on Mechoopda lands. The
exclusion of critical habitat for the Mechoopda trust lands is
consistent with our published policies on Native American natural
resource management by allowing the Mechoopda Tribe to manage their own
natural resources.
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding Mechoopda Tribal land as critical
habitat outweigh the benefits of including it as critical habitat for
the vernal pool tadpole shrimp (Unit 4) and will not result in the
extinction of the vernal pool tadpole shrimp. For a complete discussion
of these Tribal lands, please refer to our August 6, 2003, final
designation (68 FR 46684).
Exclusion Summary
We have reviewed the overall effect of excluding from the
designated critical habitat for the vernal pool species lands covered
by the following authorities: The above-mentioned approved HCPs, the
State, national wildlife refuges, national fish hatcheries, Tribal
trusts, and military installations, and we have determined that the
benefits of excluding these areas outweigh the benefits of including
them in this critical habitat designation. The exclusion of vernal pool
critical habitat in Butte, Madera, Merced, Solano, and Sacramento
Counties, California, will be evaluated in a future Federal Register
document. The lands removed from critical habitat as a result of these
exclusions will not jeopardize the long-term survival and conservation
of the species or lead to their extinction.
Economic Analysis
An economic analysis of the effect of critical habitat in the 36
counties in California and 1 county in Oregon was conducted for the
final rule. For a complete discussion of the economic analysis, please
refer to our August 6, 2003, final rule (68 FR 46684). A re-analysis of
the economic impacts of critical habitat designation in the five
counties that were excluded in the final rule will be conducted in a
future Federal Register document.
Required Determinations
We have reviewed our analyses of Required Determinations and
subsequent conclusions that were made in the August 6, 2003, final rule
designating critical habitat for the 15 vernal pool species (68 FR
46684). On the basis that we are affirming our treatment and decisions
of noneconomic exclusions from the August 2003 final rule and are
making no additional exclusions or changes to the designation, we
believe that our previous conclusions stand. Thus, we refer the public
to our previous analyses and conclusions of the Required Determinations
in the August 6, 2003, final rule.
References Cited
A complete list of all references cited herein, as well as others,
is available upon request from the Sacramento Fish and Wildlife Office
(see ADDRESSES section).
Authors
The primary authors of this notice are the staff of the Sacramento
Fish and Wildlife Office (see ADDRESSES section).
Dated: February 28, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-4173 Filed 3-7-05; 8:45 am]
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