[Federal Register Volume 70, Number 14 (Monday, January 24, 2005)]
[Rules and Regulations]
[Pages 3438-3461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-982]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Final Rule To Designate
Critical Habitat for the Buena Vista Lake Shrew (Sorex ornatus
relictus); Final Rule
Federal Register / Vol. 70, No. 14 / Monday, January 24, 2005 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT66
Endangered and Threatened Wildlife and Plants; Final Rule To
Designate Critical Habitat for the Buena Vista Lake Shrew (Sorex
ornatus relictus)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Buena Vista Lake shrew (Sorex ornatus
relictus) (referred to here as the shrew) pursuant to the Endangered
Species Act of 1973, as amended (Act). In total, approximately 84 acres
(ac) (34 hectares (ha)) occur within the boundaries of the critical
habitat designation. The critical habitat is located in the Central
Valley floor of Kern County, California.
DATES: This final rule is effective February 23, 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 Way, W-2605, Sacramento, California
95825 (telephone 916-414-6600).
FOR FURTHER INFORMATION CONTACT: Shannon Holbrook or Arnold Roessler,
Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605
Sacramento, California, (telephone 916-414-6600; facsimile 916-414-
6712).
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to the 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 is 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 468 species or 37 percent
of the 1,256 listed species in the United States under our jurisdiction
have designated critical habitat. We address the habitat needs of all
1,256 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. We believe that it is these measures that may make the
difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit 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.
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 of
this consequence, 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 situation 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 associated with the critical habitat designation process
include legal costs, the costs of preparation and publication of the
designation, the analysis of the economic effects and the costs of
requesting and responding to public comments, and, in some cases, the
costs of compliance with National Environmental Policy Act. 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 these
associated costs directly reduce the scarce funds available for direct
and tangible conservation actions.
Background
For background information, please see the proposed designation of
critical habitat for the Buena Vista Lake shrew published on August 19,
2004 (69 FR 51417). That information is incorporated by reference into
this final rule.
Previous Federal Actions
A final rule listing the shrew as endangered was published in the
Federal Register on March 6, 2002 (67 FR 10101). Please refer to the
final rule listing the shrew for information on previous Federal
actions prior to March 6, 2002. On January 12, 2004, the United States
District Court for the Eastern District of California issued a
Memorandum Opinion and Order (Kern County Farm Bureau et al. v. Anne
[[Page 3439]]
Badgley, Regional Director of the United States Fish and Wildlife
Service, Region 1 et al., CV F 02-5376 AWIDLB). The order required the
Service to publish a proposed critical habitat determination (also
known as a proposed rule) for the shrew no later than July 12, 2004,
and a final determination no later than January 12, 2005. On July 8,
2004, the court extended the deadline for submitting the proposed rule
to the Federal Register to August 13, 2004.
On August 19, 2004 (69 FR 51417), we published a proposed critical
habitat designation for the Buena Vista Lake shrew. Publication of this
proposed rule opened a 60-day public comment period, which closed on
October 18, 2004. On September 16, 2004, we announced via local news
media and publications that a public hearing was to be held on
September 30, 2004, in Bakersfield, California. At the public hearing,
approximately 10 members of the public provided or presented
information and comments on the proposed critical habitat designation.
On November 30, 2004, we published a notice announcing the availability
of our draft economic analysis (DEA) of the proposed critical habitat
designation (69 FR 69578). The notice opened a 15-day public comment
period on the DEA, extended the comment period on the proposed critical
habitat designation, and closed on December 15, 2004.
Summary of Comments and Recommendations
We contacted appropriate Federal, State, and local agencies,
scientific organizations, and other interested parties and invited them
to comment on the proposed critical habitat designation for the Buena
Vista Lake shrew. In addition, we invited public comment through the
publication of a notice in the Bakersfield Californian on September 16,
2004.
In the August 19, 2004, proposed critical habitat designation (69
FR 51417), we requested that all interested parties 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 the critical habitat designation,
potential exclusions and the associated rationale for the exclusions,
and methods used to designate critical habitat. We also contacted all
appropriate Federal, State, and local agencies, scientific
organizations, and other interested parties and invited them to
comment. This was accomplished through letters and news releases 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
newspapers throughout Kern County.
We provided notification of the draft economic analysis (DEA)
through postcards, letters, and news releases faxed and/or mailed to
affected elected officials, media outlets, local jurisdictions, and
interest groups. We published a notice of its availability in the
Federal Register and made the DEA and associated material available on
our Sacramento Fish and Wildlife Office Internet site on November 30,
2004 (69 FR 69578).
We received a total of 16 comment letters and electronic mail
correspondences (e-mails) during the comment periods. We reviewed all
comments received for substantive issues and new information regarding
the Buena Vista Lake shrew. We grouped similar public comments into six
general issue categories relating specifically to the proposed critical
habitat determination and/or the DEA. Substantive comments and
accompanying information have either been incorporated directly into
the final rule or final economic analysis documents, and/or they have
been addressed in the following summary.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we solicited review from at
least three appropriate and independent specialists/experts regarding
the proposed rule. The purpose of such review is to ensure that our
critical habitat designation is based on scientifically sound data,
assumptions, and analyses.
We solicited peer review from 5 individuals who have detailed
knowledge of and expertise in either mammalian biology in general, or
shrew biology specifically, as well as scientific principles and
conservation biology. The individuals were asked to review and comment
on the specific assumptions and conclusions regarding the proposed
designation of critical habitat. Two of the five reviewers submitted
comments on the proposed designation.
Peer Comment (1): One peer reviewer felt the proposed critical
habitat designation incorporated the most up to date information on the
biology of the shrew and the issues of range, distribution, and life
history requirements of the shrew. This peer reviewer questioned
whether connectivity of habitat fragments had been considered in
preparation of the proposed rule. Both reviewers stated that shrews,
that were possibly the Buena Vista Lake shrew, have been captured at
the Atwell Island Land Retirement Demonstration project site: both
reviewers questioned why this area was not included in the proposed
critical habitat designation.
Our Response (1): Although we agree that preserving connectivity
between known occupied locations is important for the conservation of
the Buena Vista Lake shrew, we do not believe that unoccupied and
historical locations are essential for the conservation of the species.
The Recovery Plan for Upland Species of the San Joaquin Valley
(Recovery Plan) determined that the Buena Vista Lake shrew could be
conserved by protection of habitat in three or more disjunct occupied
conservation areas, excluding unoccupied and/or historical locations.
All units that were described in the Recovery Plan were analyzed to
determine if the areas exhibited the physical and biological features
that are essential to the conservation of the shrew and would require
special management. We have determined that the areas or units that we
have proposed to designate as critical habitat, based on our analysis
of the best available scientific and commercial data, provide for the
essential lifecycle needs of the species, and provide the habitat
components essential for the conservation of this species (i.e., the
primary constituent elements (PCEs) described below in the Primary
Constituent Elements section). Therefore, we do not believe that it is
necessary for the conservation of the Buena Vista Lake shrew to
designate critical habitat in unoccupied areas or areas that do not
exhibit the primary constituent elements essential for the conservation
of the species.
State and Federal Agency or Tribal Comments
We did not receive any comments regarding the proposed critical
habitat designation from any State, Federal or Tribal entity.
Other Public Comments and Responses
We address other substantive comments and accompanying information
in the following summary. Any changes and/or reference updates
suggested by commenters have been incorporated into this final rule or
the final economic analysis, as appropriate.
[[Page 3440]]
Issue 1--Habitat- and Species-Specific Information
Comment (1): Several commenters stated that we have not adequately
established that all the areas identified as critical habitat do in
fact contain the Primary Constituent Elements (PCEs) essential for the
conservation of the species and that the proposed designation fails to
narrowly define those areas that have the PCEs. These commenters also
stated they wanted excluded from designation those areas that did not
contain the PCEs for the shrew. These comments were directed towards
roads, pump sites, maintained canals, and other areas devoid of
vegetation within the designation. One commenter expressed concern that
there was no comprehensive biological study utilizing uniform
assumptions of analysis for all five units.
Our Response (1): We used the best scientific and commercial data
available to us at the time in determining which areas proposed as
critical habitat are essential for the shrew. In our final
determination, we used additional information available to us,
including detailed aerial imagery and other information provided by
commenters to assist us in refining our mapping of essential habitat.
After refining our proposal by removing additional nonhabitat and other
nonessential areas such as roads, pump sites, maintained canals, and
other areas devoid of vegetation, and considering the best available
information, we conclude that the areas designated by this final rule,
including currently occupied areas, are essential for the conservation
of the species. In our development of the proposed designation, we
utilized certain specific conservation criteria of protecting a variety
of habitats, protecting suitable habitat across the range of the
species, and protecting habitats essential for the maintenance and
growth of self-sustaining populations in establishing the areas of
critical habitat. This strategy was also used in the development of the
final designation.
Comment (2): One commenter suggested that there would be an
increase in siltation and debris accumulation in channels and that this
would increase maintenance burdens of water districts if there was a
restriction in channel use due to the critical habitat designation.
Our Response (2): In our final determination, we have additional
information available to us, including detailed aerial imagery and
other information provided by commenters to assist us in refining our
mapping of essential habitat. We have determined that channels, because
they lack the PCEs, do not provide habitat for the shrews. Therefore,
channel areas have been removed from the critical habitat boundaries.
Therefore, no restrictions of use or modifications to channel
operations will be imposed due to critical habitat designation.
Comment (3): One commenter stated that the final rule should
recognize all cumulative impacts to the shrew occurring in the area.
Our Response (3): In accordance with Section 4(b) of the Endangered
Species Act, the regulations state that the Secretary shall determine
whether a species is an endangered species or a threatened species
because of any of the following factors: (1) The present or threatened
destruction, modification, or curtailment of its habitat or range, (2)
overutilization for commercial, recreational, scientific, or
educational purposes, (3) disease or predation, (4) the inadequacy of
existing regulatory mechanisms, and (5) other natural or manmade
factors affecting its continued existence. As a result of this
analysis, the Buena Vista Lake shrew was listed as endangered on March
6, 2002 (67 FR 10101). The recognition of ``cumulative impacts'' or
threats is part of the process of listing a species and not part of the
designation of critical habitat.
Comment (4): One commenter stated that the final rule should
reflect a commitment to monitoring or improved data collection for the
threat of selenium contamination.
Our Response (4): Critical habitat identifies those areas which
contain the physical and biological features that are essential to the
conservation of the species and those areas that may require special
management considerations or protections. Critical habitat designation
is not intended to be a management plan for a specific area. Any
monitoring or special management actions can be developed through
consultation or management agreements through partnerships with
Federal, State, local or private groups.
Issue 2--Costs and Regulatory Burden
Comment (5): Several commenters stated that the Service needs to
clarify the proposed rule to allow the public to understand what
activities will be limited at each proposed unit. These commenters
expressed concern that critical habitat designation would limit their
land use practices. Specifically, several commenters stated concern
over West Nile virus and whether mosquito abatement procedures would be
allowed in areas and boundaries of those areas designated as critical
habitat. Several commenters were concerned over ability of the city to
provide adequate drinking water supplies if groundwater recharge
practices were restricted. Several commenters were concerned that
critical habitat designation will adversely affect farming operations,
interrupt water supplies, and cause degradation of surrounding
farmland. One commenter states that critical habitat designation has
potential to adversely affect water management activities such as
irrigation, municipal purposes, and flood management. One commenter
asks if critical habitat will affect how the County administers FEMA
regulations.
Our Response (5): All Federal agencies are required to evaluate
whether projects they authorize, fund, or carry out may adversely
affect a federally listed species and/or its designated critical
habitat. If projects with a federal nexus are not likely to adversely
affect critical habitat, then a consultation with us would not be
necessary. For projects that are likely to have only discountable,
insignificant, or wholly beneficial effects on critical habitat, we
would concur in writing and no further consultation will be necessary.
For projects likely to have adverse affects on critical habitat, formal
consultation would be required pursuant to Section 7 of the Act.
Only those activities federally funded or authorized that may
affect critical habitat would be subject to the regulations pertaining
to critical habitat. Since all of the Buena Vista Lake shrew habitat
within the designation is occupied by the listed Buena Vista Lake shrew
and occurs on privately owned lands, the designation of critical
habitat is not likely to result in a significant increase in regulatory
requirements above those already in place due to the presence of the
listed species.
Buena Vista Lake shrews have been found within areas of proposed
critical habitat where these intricate water banking and management
operations are in place. We recognize and acknowledge that certain
water banking and water management practices likely have no impacts on
the Buena Vista Lake shrew and may in fact be beneficial for
maintaining them.
While the designation of critical habitat does not constitute a
regulation on private lands, the Federal listing of the Buena Vista
Lake shrew under the Endangered Species Act may affect private
landowners. Private actions which could result in take of Buena Vista
Lake shrew (e.g., ground disturbing activities) require an exemption
from take following consultation under Section 7 or an
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incidental take permit under section 10 of the Act. Because the Buena
Vista Lake shrew was listed in 2002, proposed actions on private lands
that require Federal authorization or funding that may affect the
species already undergo consultation under Section 7 to ensure that
their actions are not likely to jeopardize the continued existence of
the species. Future consultations involving private lands will also
analyze the effect of the proposed action on designated critical
habitat.
The Act also requires recovery planning for listed species.
Recovery planning for Buena Vista Lake shrew may include
recommendations for land acquisition or easements involving private
landowners. These efforts would be undertaken with the cooperation of
the landowners. We also work with landowners to identify activities and
modifications to activities that will not result in take, to develop
measures to minimize the potential for take, and to provide
authorizations for take through section 7 and 10 of the Act. We
encourage landowners to work in partnership with us to develop plans
for ensuring that land uses can be carried out in a manner consistent
with the conservation of listed species.
Comment (6): One commenter stated there would be economic impacts
if water deliveries to Buena Vista Lake Recreation Area were altered.
One commenter feels that critical habitat will cause substantial
financial burden if changes in structures or abilities to manage for
irrigation and floodwater or banking operations are required. One
commenter stated that the Critical habitat designation should be
limited to those areas that are already reserved for habitat purposes
to minimize economic impact. One commenter stated that the Service must
quantify economic impacts and consider cumulative impacts of the
proposed rule.
Our Response (6): We made a draft economic analysis (DEA) available
for public comment for the Buena Vista Lake shrew on November 30, 2004,
and accepted comments on the DEA from that date through December 15,
2004 (69 FR 69578). These comments will be considered in the final EA.
We did not propose to designate as critical habitat the Buena Vista
Lake Recreation Area. Furthermore, based on our economic analysis, we
do not anticipate a substantial financial burden in the area that we
are designating. The annualized economic effects of this designation
are estimated to be $8,752 to $12,932, based on the economic analysis
for Kern Lake only, as all the other units were excluded from
designation.
Comment (7): Several commenters stated that there should be
allowances for continued operation, maintenance, repair, and
replacement of existing facilities.
Our Response (7): Critical habitat designations do not prevent the
normal operation, maintenance, repair, or replacement of existing
facilities. However, any action that would result in the take of a
federally listed species (e.g., ground disturbing activities), would
require a Federal permit under section 7 or section 10 of the Act.
Consultation on critical habitat is only triggered when there is a
Federal nexus (action carried out, funded, or authorized by a Federal
agency). Even if there is a Federal nexus, consultation would not be
triggered unless the PCEs are present in the action area. Where
possible, existing facilities, such as the ones referred to in the
comment, have been excluded from critical habitat designation. Due to
the mapping scale utilized in the rule, it was not possible to remove
all areas that do not exhibit the PCEs for the species. Nonetheless,
critical habitat does not include man-made structures and not
containing one or more of the PCEs, such as buildings, aqueducts,
airports, and roads, and the land on which such structures are located.
If these areas do not exhibit the PCEs, and/or there is no Federal
nexus, the owners of the facilities would not have regulatory
responsibilities due to critical habitat.
Issue 3--Property Rights
Comment (8): Several commenters were concerned that designation of
critical habitat would affect flood control and water supply to
Bakersfield and surrounding communities. They stated the designation
could adversely affect agricultural production and urban water
districts if water deliveries are restricted or restrictive management
practices are imposed.
Our Response (8): Critical habitat designations do not constitute a
burden in terms of Federal laws and regulations on private landowners
carrying out privately funded activities. Unless a Federal nexus exists
for a project proposed on private property, the critical habitat
designation poses no regulatory burden for private landowners and
similarly should not interfere with future land use plans. Therefore,
we do not believe that this designation will deny ranchers and farmers
use of their land. We have also determined that channels such as water
delivery canals do not provide habitat for the shrews due to lack of
the primary constituent elements, and we have removed them from the
critical habitat boundaries. Therefore, we do not anticipate
restrictions of use or modifications to water deliveries to be imposed
due to critical habitat designation.
While the designation of critical habitat does not typically result
in regulation on private lands, the Federal listing of the Buena Vista
Lake shrew under the Endangered Species Act may affect private
landowners. Actions which could result in take of Buena Vista Lake
shrew (e.g., ground disturbing activities) require a Federal permit
under section 7 or section 10 of the Act. Because the Buena Vista Lake
shrew was listed in 2002, Federal agencies already consult with us on
activities in areas currently occupied by the species or, if the
species may be affected by an action, to ensure that their action does
not jeopardize the continued existence of the species.
Comment (9): One commenter asks if restrictive critical habitat
management practices imposed on federal agencies or private property
owners seeking federal permits increase mitigation costs, property
damage, or raise public safety issues involving the maintenance of
flood-carrying capacity for the affected water conveyance facilities.
Our Response (9): Critical habitat identifies those areas which
contain the physical and biological features that are essential to the
conservation of the species and those areas that may require special
management considerations or protections. Critical habitat designation
is not intended to be a management plan for a specific area. Any
monitoring or special management practices can be developed through
Section 7 or Section 10 of the Act. Based on previous consultations,
there have been no restrictive management practices required that have
resulted in increased mitigation costs, property damage, or have raised
public safety issues. Nor do we anticipate, based on the economic
analysis, in the future restrictive management practices that will
increase mitigation costs, property damage or public safety issues.
Comment (10): Several commenters stated that areas that are subject
to a management regime that supports the shrew should be excluded from
designation.
Our Response (10): We exclude areas with management regimes from
designation if a current plan provides adequate management or
protection and meets three criteria: (1) The plan is complete and
provides a conservation benefit to the species (i.e., the plan must
maintain or provide for an increase in the species' population, or the
enhancement or restoration of its habitat
[[Page 3442]]
within the area covered by the plan); (2) the plan provides assurances
that the conservation management strategies and actions will be
implemented (i.e., those responsible for implementing the plan are
capable of accomplishing the objectives, have an implementation
schedule, and adequate funding for implementing the management plan);
and (3) the plan provides assurances that the conservation strategies
and measures will be effective (i.e., it identifies biological goals,
has provisions for monitoring and reporting progress, and is of a
duration sufficient to substantially implement the plan and achieve the
plan's goals and objectives). Units containing a management plan or
regime that meets the above criteria have been excluded from
designation.
Comment (11): Several commenters stated concern over the regular
operation, repair, and maintenance of existing oil and gas pipelines
and water diversion canals within critical habitat boundaries. Several
commenters are concerned that critical habitat designation will affect
water district supplies. They stated that significant economic effects
will occur if operations of banking projects or delivery canals require
modifications.
Our Response (11): Activities carried out, funded, authorized, or
permitted by a Federal agency (i.e., Federal nexus) require
consultation pursuant to section 7 of the Act if they may affect a
federally listed species and/or its designated critical habitat. Our
experience with consultations on the Buena Vista Lake shrew is that few
oil and gas activities have involved a Federal nexus and have not
required a consultation under Section 7 of the Act. Regardless, we have
excluded from critical habitat the units with oil and gas pipelines due
to their adequate management plans. See Exclusions Under Section
4(b)(2) of the Act. Similarly, there are no water diversion canals
within final critical habitat boundaries. The canal that occurs within
the unit included in the final designation has been removed from the
critical habitat boundary. Therefore, projects within these canals
would not require consultation due to critical habitat.
Comment (12): Several commenters stated that designation would
result in restrictions or delays to regular operation or maintenance or
new construction of water delivery or agricultural or industrial
facilities, requiring consultation with the Service.
Our Response (12): All lands designated as critical habitat are
within the geographic area occupied by the species, and are likely to
be used by the Buena Vista Lake shrew, whether for foraging, breeding,
growth of juveniles, genetic exchange, or sheltering. Thus, we consider
all critical habitat units to be occupied by the species. Federal
agencies already consult with us on activities in areas currently
occupied by the species or if the species may be affected by the action
to ensure that their actions do not jeopardize the continued existence
of the species. Therefore, we believe that the designation of critical
habitat is not likely to result in additional regulatory burden above
that already in place due to the presence of the listed species.
Issue 4--Mapping Methodology
Comment (13): Several commenters asked that specific areas that
they believed do not exhibit the PCEs be excluded from the critical
habitat designation.
Our Response (13): Where site-specific documentation was submitted
to us providing a rationale as to why an area should not be designated
critical habitat, we evaluated that information in accordance with the
definition of critical habitat pursuant to section 3 (5)(A) of the Act
and the provisions of section 4 (b)(2) of the Act. Following our
evaluation of the parcels, we made a determination as to whether
modifications to the proposal were warranted. In the preparation of the
final rule, we further examined the area proposed and we refined the
critical habitat boundaries to exclude, where possible within the
limitations of our minimum mapping scale, those areas that did not, or
were not likely to, contain the PCEs for the Buena Vista Lake shrew.
Please refer to the Summary of Changes from the Proposed Rule
section of this final rule for a more detailed discussion of changes
and exclusion from the proposed rule.
Comment (14): One commenter urges the Service to expand critical
habitat designation to include all habitats essential to the
conservation of the species and in need of special management. The
commenter further states that the proposed rule does not ensure
recovery of the species. They state that the designation is too small
and too isolated to ensure viable, self-sustaining populations. They
argued that the rule should include occupied as well as unoccupied
potential habitat that could be recolonized and provide potential
dispersal habitats. This commenter also stated that the Service should
analyze areas described in the Recovery Plan for inclusion in the final
rule, as well as areas to provide connectivity. One commenter
recommends identifying locations, such as irrigation ditches and other
potentially restorable riparian habitats which might provide essential
connectivity between existing large blocks of core habitat. This
commenter also wants the required agriculture land location at Atwell
Island near Alpaugh included as critical habitat.
Our Response (14): Although we agree that preserving connectivity
between known occupied locations is important for the conservation of
the Buena Vista Lake shrew, we do not believe that unoccupied and
historical locations are essential for the conservation of the species.
The Recovery Plan for Upland Species of the San Joaquin Valley
(Recovery Plan) determined that the Buena Vista Lake shrew could be
conserved by protecting habitat in three or more disjunct occupied
conservation areas, excluding unoccupied and/or historical locations.
All units that were described in the Recovery Plan were analyzed to
determine if the areas exhibited the physical and biological features
(PCEs) that are essential to the conservation of the shrew and may
require special management. The five units that we have proposed to
designate as critical habitat provide for the essential life-cycle
needs of the species, and provide the habitat components essential for
the conservation of this species (i.e., the primary constituent
elements (PCEs) described below in the Primary Constituent Elements
section). Under the Act, areas without PCEs cannot be designated
critical habitat, such as these areas suggested for potentially
restorable areas, unless determined to be essential for the
conservation of the species. Again, we have determined that the areas
or units that we have proposed to designate as critical habitat provide
the habitat components essential for the conservation of this species.
Therefore, we do not believe that it is necessary to the conservation
of the Buena Vista Lake shrew to designate critical habitat in
unoccupied areas.
Issue 5--Procedural Concerns
Comment (15): Several commenters stated concerns because the
proposed rule was not accompanied by an economic analysis. They claimed
it was difficult to comment on the proposed rule without reviewing the
information from the economic analysis.
Our Response (15): We made a draft of the economic analysis (DEA)
available for public comment for the Buena Vista Lake shrew on November
30, 2004, and accepted comments on the DEA from that date through
December 15, 2004 (69 FR 69578). The information presented in the DEA
has been reviewed
[[Page 3443]]
and its analysis has been included in our decisionmaking process for
the final designation.
Comment (16): Several commenters stated that the Service could not
designate critical habitat without first complying with NEPA
requirements.
Our Response (16): We published a notice in the Federal Register on
October 25, 1983 (48 FR 49244) outlining our reasons for our
determination not to prepare an environmental analyses as defined by
the NEPA in connection with designating critical habitat under the
Endangered Species Act of 1973, as amended. It is our position that in
the Ninth Circuit, as upheld by the courts (Douglas County v. Babbitt,
48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996),
we do not need to prepare environmental analyses as defined by the
NEPA.
Comment (17): One commenter argued that the proposed critical
habitat designation contains areas that are not occupied by the shrew.
The commenter stated that Congress restricts the authority of the
Service to designate critical habitat in areas that are occupied.
Our Response (17): All lands designated as critical habitat are
within the geographic area and have been documented to be occupied by
the species (CNDDB 2004; Maldonado 1992; Williams and Harpster 2001;
ESRP 2004), and are likely to be used by the Buena Vista Lake shrew,
whether for foraging, breeding, growth of juveniles, genetic exchange,
or sheltering. Thus, we consider all critical habitat units to be
occupied by the species.
Comment (18): One commenter requested that Unit 2 be excluded from
designation because it is currently in negotiations for a Section 7
permit, which the commenter believes would provide the area with a
sufficient management plan.
Our Response (18): A current plan provides adequate management or
protection if it meets three criteria, outlined above in our Response
to Comment 10. A Section 7 consultation with long-term conservation
assurances provides for the long-term protection and management of the
species and its habitat. At the time we received this comment, the
Service was in negotiations for a Section 7 permit. A Biological
Opinion with long-term conservation assurances has since been completed
and issued for the Gooselake project. The Goose Lake Unit has been
excluded from designation based on the conservation measures that will
benefit the Buena Vista Lake shrew outlined in the Section 7
consultation and long term easement on the project. See Exclusions
Section.
Comment (19): The City of Bakersfield stated that it is operating
under current management practices that benefit the shrew and that it
is currently developing a management plan to benefit the shrew, and
therefore its unit should be excluded from designation.
Our Response (19): The City of Bakersfield's Kern Fan Water
Recharge Unit has been excluded from designation based on the
conservation measures that will benefit the Buena Vista Lake shrew
outlined in the management plan which meets the Service's exclusion
criteria. See Exclusions Section.
Comment (20): Several commenters stated that the Coles Levee Unit 4
is covered by a management plan sufficient for the protection of the
species and its habitat and should be excluded from designation. The
commenters stated that the conservation easement for the Coles Levee
Unit, that is held by California Department of Fish and Game,
specifically recognizes the shrew in Section 5.3 of the easement as a
``Species of Concern Benefited by this Easement.''
Our Response (20): We have reviewed and evaluated the conservation
easement conditions which meet the Service's exclusion criteria. We
have determined that the Coles Levee Unit 4 should be excluded from the
designation based on the conservation measures that will benefit the
Buena Vista Lake shrew. See Exclusions section.
Issue 6--Economic Analysis
Comment (21): One comment suggested that the analysis should
address the costs associated with ``allowing the extinction of the
subspecies of shrew, including the genetic traits necessary for the
survival of the entire species.'' Furthermore, extinction of the shrew
would be a loss of opportunity for students and scientists who study
the species, and who also spend money locally.
Our Response (21): The purpose of the DEA is to estimate the
economic effects of conservation activities associated with the listing
and designation of critical habitat for the shrew, as well as the
economic effects of the protective measures taken as a result of the
listing. The Service believes that the benefits of critical habitat
designation are best expressed in biological terms that can be weighed
against the expected cost impacts of the rulemaking. Thus, the DEA does
not provide a monetary measure of the economic benefits of preventing
extinction.
Comment (22): One comment indicated that the economic analysis of
critical habitat designation should measure not only loss of profit
(i.e., lost producer surplus) of affected businesses, but loss of
revenue as a measure that may better capture the total economic
impacts, including ``employment dislocation'' and ``associated ill
effects.''
Our Response (22): The Service acknowledges that the economic
effects identified by the commenter are important, and should be
addressed. Both categories of effects (i.e., welfare change in terms of
lost producer surplus, and distributional effects in terms of
employment dislocation) were addressed in the DEA. However, guidance
from OMB, and compliance with Executive Order 12866 specifies that
Federal agencies measure changes in economic efficiency as a means of
understanding how society will be affected by a regulatory action. This
provides a measure of the net impact of conservation measures.
Consideration of how certain economic sectors or groups of people are
affected in a distributional manner is important and should be
considered, but OMB encourages Federal agencies to consider
distributional effects separately from efficiency effects. These
distinctions are discussed in Sections 1.1.1 and 1.1.2 of the DEA. As
such, the DEA presents the quantitative effects of shrew conservation
measures as the efficiency effects, and presents the distributional
effects of changes in agricultural activities in Section 5.5.
Comment (23): One comment suggested that the water requirement
assumption of 3.5 acre-feet per acre is ``much too high, and that use
of evapotranspiration rates for field crops and grass is not
appropriate because it does not account for shading or mulch (as
suitable habitat for the Buena Vista Lake shrew).''
Our Response (23): Several sources were consulted to determine
appropriate water requirements for use in the DEA. The estimate of 3.5
acre-feet per acre was suggested by managers of the Kern National
Wildlife Refuge (KNWR). As noted by those managers and as reported in
Section 6.3.5.1 of the DEA, a rate of 3.5 acre-feet per acre provides
for optimal management of habitat in KNWR. This level was considered
reasonable because all units are in the same geographic zone, and the
KNWR water rate reflects optimal management conditions. As noted in
Section 2.0 of the DEA, estimates of water requirements for wetland
habitat in the San Joaquin Valley range as high as 10 acre-feet per
acre.
[[Page 3444]]
Comment (24): One comment noted that the cost of water purchases
for maintaining habitat based on $209 per acre-foot is ``not
accurate,'' and would instead require the purchase of permanent water
rights for ``a guaranteed source of water.'' Furthermore, current costs
for water is $2,500 per acre-foot.
Our Response (24): In drafting the DEA, the need for water was
investigated for each of the proposed units. This research concluded
that supplemental water would be necessary on two units (Unit 1, Kern
National Wildlife Refuge; and Unit 2, Goose Lake), but may or may not
be warranted on the remaining three units. The DEA assumes that
supplemental water may be purchased on an as-needed basis. The $209 per
acre-foot estimate is an average spot price for leased water,
equivalent to a one-time, one-use acquisition. The purchase of
permanent water rights would add more certainty to the attainment of
water, and would be a reasonable and conservative assumption. There is
little difference between a purchase price of $2,500 per acre-foot and
discounted annual purchases of leased water, however. Thus, this
comment does not significantly change the quantitative results of the
economic analysis.
Comment (25): One comment letter inquired whether all the water
applied to shrew habitat would be transpired or evaporated, or whether
some would soak into the ground for eventual availability to adjacent
water banks or croplands.
Our Response (25): The DEA considered the water diversion
requirement (that is, the gross amount of water that would be applied
to habitat). It is understood in the DEA that only a portion of that
water would be used by plants or evaporated, and that at least some of
that water would soak into the ground and would be available for other
uses.
Comment (26): Multiple comments stated that the DEA understated the
cost to water districts by not considering ``worst case'' operating and
maintenance costs if the Service imposes restrictions on Federal
surface water allotments, use of conveyance systems, water banking, and
other water district activities and programs.
Our Response (26): A range of possible scenarios was investigated
through interviews with area water district managers and
representatives exploring the potential restrictions or other measures
that could be imposed on water districts or purveyors. The ``worst
case'' scenarios were considered, including the possibility of much
higher costs for purchased water, and the possibility of closure of the
existing facilities to future uses for water banking or withdrawal.
However, further research revealed that these scenarios could not be
substantiated through available information and therefore were too
speculative to be considered reasonably foreseeable.
Comment (27): A comment submitted on behalf of the City of
Bakersfield, Kern County Farm Bureau, Kern County Water Agency, and
J.G. Boswell Company suggested that designation of Unit 3 as critical
habitat, Kern Fan Water Recharge Area (KFWRA), ``places in jeopardy
roughly $37.5 million in water resources'' of the City of Bakersfield,
and ``another $25 million in potential replacement costs'' for other
entities who bank water (Buena Vista Water Storage District, Cal Water
Service Company, Kern County Water Agency, and the Olcese Water
District). The comment states that the KFWRA is an essential element of
the City's water supply that is relied upon for water storage. If
banking of water at this project is restricted, the City may be
required to seek additional water supplies from the already stressed
State Water Project and Central Valley Project, which will result in
additional economic and environmental impacts. Further, if banking of
water during flood events is restricted, Kern River water could flood
adjacent properties resulting in public safety risks. The commenter
also suggested that the designation of Unit 3 may alter the diversion
of water upstream of the habitat area and that Section 7 consultations
``could cause the Army Corps of Engineers to re-schedule its
operational releases from Lake Isabella to maintain habitat downstream
in Unit 3.''
Our Response (27): Importantly, Unit 3 of the proposed designation
is excluded from the final designation and impacts to water banking
projects including the KFWRA associated with shrew conservation
measures are therefore not expected. The following discussion, however,
provides some context to the consideration of this project in the DEA.
Multiple possible management scenarios for Unit 3 were investigated in
the development of the DEA through interviews with area water district
managers and representatives exploring the potential restrictions or
other measures that could be imposed on water districts or purveyors.
This research determined that a change in the management of the water
recharge area from its historic operations would not be required if
Unit 3 is designated as critical habitat. In the case that water
banking quantity or timing were impacted, economic impacts could occur
though all information gathered during the development of the DEA did
not suggest this would be the case.
Comment (28): One comment noted that, should the banked water from
the Kern River and Friant-Kern Canal in Unit 3 be made unavailable to
the Pioneer Project, Kern Water Bank, and Berrenda Mesa Project, the
``replacement value'' at a rate of $209 per acre-foot for a total of
43,337 acre-feet banked annually would amount to $9.1 million per year
(or $130 million over 20 years applying a seven percent discount rate).
Additionally, the commenter states that the DEA doesn't consider total
economic impacts; ``secondary impacts'' resulting from timing of water
supply and economic dislocation may result in an even greater cost.
Applying a multiplier of 2.2, the commenter suggests impacts may be as
high as $311 million. The commenter further suggests that
``conservation of that water may entail fallowing in some other
location that is supplying the water,'' and cites estimates for field
crops (e.g., alfalfa) and the loss of revenue that would lead to an
economic impact of $21.8 million annually. An additional commenter
suggested that the Friant Water Authority could be affected in its
ability ``to manage flood waters with Kern and Tulare County water
districts and growers throughout its Service Area.''
Our Response (28): Unit 3 is not included in the final designation
for the BLVS and therefore no costs are expected related to the shrew
designation in this area for purchase of replacement water. The
following discussion, however, provides more information on the water
use in the region. The current operation of Unit 3 is as a water
recharge area, where excess flows from the Kern River are allowed to
percolate to the groundwater aquifer for later extraction. The DEA
concludes that a change in the management of the water recharge area
from its historic operations would not be required if the area were to
be designated as critical habitat and, as such, that there would not be
a need to purchase the replacement of 43,337 acre-feet. In the case
that operations were significantly affected, and some amount of water
lost to these projects, the DEA would understate the economic effects
to water users.
The Kern Fan Water Recharge Area also serves as a flood control
management area, where flood flows may be deposited and channeled from
other areas. The DEA concludes that the area will continue its historic
use of flood management. To the extent that
[[Page 3445]]
flood management uses were restricted, the DEA would understate the
economic effects in Unit 3.
Comment (29): One commenter stated that the Friant-Kern Canal and
its district distribution systems could be affected by additional
vegetation control or management on canals directing water to the
critical habitat units.
Our Response (29): Neither the Friant-Kern Canal or Friant Water
Authority and its member districts have facilities within or adjacent
to any of the proposed units, and their distribution systems are not
likely to be affected with additional vegetation control requirements.
Comment (30): One commenter indicated that the requirement for
water to enhance critical habitat units ``could cause a redirection of
water in the Friant-Kern Canal,'' and that such a redirection would
cause a financial burden to the Friant Water Authority. The commenter
further notes that water purchased by the federal government for the
critical habitat units ``must be delivered to the sites, and the costs
of which would be partly provided by the Authority.''
Our Response (30): The need for supplemental water in each of the
critical habitat units is effected by the assumption that water will be
purchased from willing sellers. As such, no redirection or displacement
of existing uses would take place; rather, supplemental water may be
purchased on an as-needed basis. A $209 per acre-foot estimate is an
average spot price for leased water, equivalent to a one-time, one-use
acquisition. The purchase price is assumed to include cost of delivery,
and thus it would cover the cost of conveyance systems. The economic
costs for water purchases are discussed in Section 6.3.5 in the DEA.
Comment (31): One commenter noted that requirement of water to
flood habitat may burden the water districts operating the Friant-Kern
Canal. During dry years, when the amount of water is limited,
additional burden may occur on the Friant Water Authority and its
member districts.
Our Response (31): The supplemental water for the critical habitat
units is assumed to be purchased on an as-needed basis from willing
sellers. In dry years, when water to member districts may be limited,
the critical habitat units may also be limited in acquisition of water.
In other words, water for the critical habitat units is necessarily
secondary (or junior) to the member districts, and may not be available
in dry years. As such, that the units need water is not expected to
have a supplemental financial burden effect on member districts.
Comment (32): Two comments indicated that the cost to agriculture
is understated in that a larger buffer that the 45 feet estimated in
the DEA would be necessary between farmed lands and critical habitat.
One commenter also suggested that farmers who typically use aerial
application of pesticides may have to change to more expensive ground
application, and incur the higher costs.
Our Response (32): For the DEA, the Extension Service was consulted
regarding the appropriate width of a buffer that is intended to prevent
pesticide drift from farmed lands, and that would also allow for
maneuverability of farm equipment. This width (45 feet) was used in the
analysis.
Aerial application of pesticides is more likely to result in
pesticide drift than are ground-based methods. There are six or fewer
farms with cultivated land located adjacent to critical habitat. These
are farms that are adjacent to Unit 2 (Kern Fan Recharge), Unit 3
(Goose Lake), and Unit 5 (Kern Lake). To the extent that any or all of
these farms currently use aerial pesticide applications and switch to
ground applications then the annual cost to those farms may be
understated assuming costs of ground application is more expensive. It
is not clear, however, how and where these farms employ pesticides, and
it was not determined in the development of the DEA that aerial
application would be restricted.
Comment (33): One comment indicated that the cost to agriculture is
overstated, in that the value of the fruit produced in buffers should
be subtracted from the cost of the trees.
Our Response (33): The DEA assumed that the pomegranate tree
buffers planted on agricultural lands would not be developed for
commercial production purposes, but to create ``hedgerow thickets''
designed to limit pesticide drift. As such, the plantings would be
dense and managed for brush and foliage rather than fruit production,
the yield of which would be less than a comparable orchard. Harvesting
of fruit would be made difficult by the thicket. In conclusion, any
revenue from fruit sales would be minimal.
Comment (34): One comment indicated that in Unit 5 (Kern Lake),
``soil and groundwater conditions will not allow tree production'' in
the proposed buffer strip.
Our Response (34): The buffers would be installed in currently
cultivated farmland. To the extent that the suggested buffer planting
of a pomegranate hedgerow will not survive because of the soil type, an
alternative brushy or hedgerow plant could be identified as suitable
for the soils. The cost of installing the buffer is not expected to
vary more than a nominal amount from that estimated in the DEA in the
case that a different hedgerow is required.
Comment (35): One comment noted that the DEA statement that ``there
is no cultivated farmland within the boundaries of the proposed
designation'' is not accurate. The commenter noted that approximately
47 acres in four fields within Unit 2, Goose Lake, have been cultivated
in the past, and have been and are eligible for annual loan deficiency
(Farm Program) payments.
Our Response (35): To the extent that the land continues to be
enrolled in the Farm Program, and the owners choose not to cultivate
the land for crop production in the future in order to avoid an
incidental take of shrew, then the effect of the critical habitat
designation would be the difference between net revenue (after
expenses) of crop production and the farm program deficiency payment.
This amount will vary depending upon crop and deficiency payment
amount. In 2004, according to the commenter, the fields received loan
deficiency payments, indicating that they may not have been cultivated
and have not been used to produce an alternate crop. If this status
were to continue in the future, there would be no effect on the owner
from the critical habitat designation.
Comment (36): One commenter states that the DEA ``fails to address
the impacts to upstream agricultural water users if their water
allotments are reduced or eliminated.''
Our Response (36): The DEA considered the water needs of the
critical habitat units, and acknowledges that supplemental water,
whether required or optional, would necessitate a purchase or lease of
water from willing sellers. Section 6.3.5 provides an analysis of the
water requirements and associated costs for each of the units. The DEA
also contemplated the possibility of closure of the existing facilities
or effects on water users upstream of the units and determined these
scenarios were considered unlikely; therefore, associated impacts were
too speculative to be considered reasonably foreseeable.
Comment (37): One comment letter requested information as to
whether critical habitat designation in Unit 5 (Kern Lake) would
affect: (1) Mosquito abatement; (2) diversions of water from New Rim
Ditch; (3) timing and
[[Page 3446]]
quantities of flows through the Kern Delta Water District facilities;
(4) farming activities adjacent to Unit 5; (5) operation of the tile
drain system; (6) maintenance of canals and roadways; (7) eligibility
of the site for development into a mitigation bank; (8) eligibility for
inclusion of Unit 5 into the Metropolitan Bakersfield HCP; and (9)
activities of the owner to voluntarily supply water to the site.
Our Response (37): In the development of the DEA, our investigation
regarding whether changes would be recommended to modify existing
mosquito abatement activities revealed that producers who follow
pesticide labels instructions for application will not be impacted by
shrew conservation activities. The Kern Delta Water District uses the
New Rim Ditch to transport water to its service members. The New Rim
Ditch lies adjacent to, but outside of, critical habitat in Unit 5. It
was determined that requirements for changing diversions, quantities,
and timing of flows through existing facilities was not reasonably
foreseeable in this area. The DEA considered farming activities in
terms of the planting of buffer strips on adjacent lands, including
those adjacent to Unit 5 (see Section 5.4 of the DEA). Implementation
of these buffer zones is estimated to cost approximately $5,187
annually. The DEA also considered whether designation of critical
habitat would affect operation, or possible removal, of the tile drain
system. Discussions with the land owner indicate that operations on the
tile drain system include periodic maintenance and repair of the pumps
transporting tailwater at the end of the drains; these activities are
not likely to affect the shrew. Routine maintenance of canals and
roadways, including grading and adding to gravel base, have been
conducted in the past and are not anticipated to be restricted due to
shrew conservation activities. Further investigation did not indicate
that designation of Unit 5 would limit its eligibility for development
into a mitigation bank, or inclusion into the Metropolitan Bakersfield
HCP. The potential for restrictions on additional water supply, or
changes in the timing of water applications to the site, were also
considered. Such activities are not likely to be restricted or limited
as the shrew thrives on moist edges to wetted areas, and could
reasonably adapt under these conditions.
Comment (38): One comment letter expressed concern about the future
status of the tile drain system in Unit 5 (Kern Lake), and the economic
damage in terms of land values and crop losses ``in excess of $30
million'' that would result if the Service required it to be
dismantled.
Our Response (38): In developing the DEA, the possibility of
impacts to tile drain system project, including its removal, were
examined. No evidence was uncovered to give reason to assume that the
existing system or tile drain in place would require any alteration,
and therefore it was determined that there would not be any reasonably
foreseeable loss of land value or crop production associated with
modification to this project.
Comment (39): One commenter stated that the Kern Delta Water
District operates and maintains the New Rim Ditch in Unit 5, and
expressed concern that the district would be impacted if their ability
to operate the ditch is affected by the designation.
Our Response (39): The New Rim Ditch, levee, and adjacent roadway
are on the boundary, but outside of, the Unit 5. Previous operations
and use of the New Rim Ditch have been conducive for the survival of
the shrew, and the seepage has been beneficial for its habitat. As long
as current operations and use do not change in the future, there would
be no restrictions placed upon it that would result in economic
effects.
Comment (40): One commenter indicated that the Buena Vista Water
Storage District (BVWSD), which owns the Outlet Canal, located within
Unit 4, Coles Levee, could be affected if they are unable to line the
canal as they plan.
Our Response (40): Proposed Unit 4 is not included in the final
designation for the BLVS and therefore no further costs are expected
related to the shrew associated with this potential project. The
following discussion, however, provides more information on the Outlet
Canal lining project. A representative of the BVWSD was contacted
regarding operational plans for the Outlet Canal. The BVWSD has
considered lining the Outlet Canal since the late 1970s, but never
completed necessary feasibility studies. More recently, the District
has begun to consider it again, based on the installation of new
equipment to better measure the seepage from the canal. Among the study
alternatives is the efficacy of lining the entire canal (bottom and
sides) versus lining the bottom and only parts of the sides, leaving
the top parts of the levees unlined in order to protect the waterway
habitat. Lining of the canal could provide the BVWSD with a reduction
in seepage loss and ability to use or sell the conserved water. The
benefit to the BVWSD of the additional water would be offset by the
cost of lining. Future improvements or changes to the Outlet Canal are
uncertain, as the economic feasibility of improvements to the BVWSD has
not yet been determined.
Comment (41): One comment asserts that the study understated the
full range of effects on private individuals or entities due to Section
7 consultations that induce the preparation of biological reports. In
particular, costs of preparation and ongoing operating costs for the
Kern County Valley Floor HCP are understated. The Kern County Planning
Department estimates that these costs are $200,000 for completion of
the HCP document and more than $70,000 annually in subsequent years for
implementation.
Our Response (41): The costs to private entities was determined
along with other costs associated with Section 7 consultations and
development of HCPs. Table 16 in the DEA provides a summary of the
costs to non-Federal entities, both as a result of the listing and
anticipated in the future.
With respect to the Kern County Valley Floor HCP, the commenter was
contacted for cost estimates in the course of preparing the DEA, and
those costs were subsequently included in the revised economic
analysis. The total cost to date of $450,000 was assumed to be divided
equally among the 28 species included in the HCP. The prospective
annual cost, which is $125 as shown in Table 16, was based on the
$70,000 forecasted by the commenter as required to complete the HCP.
The annual costs may appear understated because they are assumed to be
shared equally among the 28 listed species considered in the HCP.
Comment (42): One comment suggested that designation of Unit 3,
Kern Fan Water Recharge, would necessitate the installation of ``an
irrigation system such as sprinklers * * * to water disconnected areas
and establish sufficient vegetative cover.'' As such, the DEA should
include the annual costs for a sprinkler system.
Our Response (42): Proposed Unit 3 is currently operated as a water
recharge area, where excess flows from the Kern River are allowed to
percolate to the groundwater aquifer for later extraction. The DEA did
not anticipate significant enough changes to operations in this Unit to
necessitate the installation of infrastructure for irrigation. However,
Unit 3 is not included in the final designation for the BLVS and
therefore no costs are expected related to the shrew for an irrigation
system in this area.
Comment (43): One comment noted that the DEA does not consider
``the costs of replacing the consumptive use
[[Page 3447]]
of water needed to moisten shrew habitat'' within Unit 3, the Kern Fan
Water Recharge, and that the replacement of 9,163 acre-feet of
groundwater in that unit would cost $1.9 million annually.
Our Response (43): Unit 3 is not included in the final designation
for the BLVS and therefore no costs are expected related to the shrew
for purchase of replacement water. The following discussion, however,
provides more information on the consumptive water use in the region.
The Kern Fan Water Recharge area operates as a water bank with an
intentional use of allowing water to percolate to the groundwater
aquifer for eventual reuse. In allowing percolation of supplemental
water, and simultaneously providing habitat moisture to the benefit of
the shrew, some evaporative loss may occur that would not be
recoverable. Assuming a 15 percent rate of evaporative loss,
approximately 1,375 acre-feet of the supplemental water would not be
available to groundwater users. It should be noted that it is not known
whether supplemental water will be required in the Kern Fan Recharge
Area. If water is required, it is assumed that water would be purchased
from willing sellers, and hence would not displace other existing uses.
Nevertheless, should the water be required, the upper bound on the
opportunity cost of the 1,375 acre-feet of water lost, at $209 per
acre-foot, would be $287,375 annually.
Comment (44): One comment letter stated that the Semitropic Water
District owns and operates a canal in Unit 2 for water delivery and
transport of flood waters, and concern was expressed that the district
would be constrained in its operations or use of the canal.
Our Response (44): This canal is not included in the final
designation for the shrew as Unit 2 has been excluded from designation
and therefore no economic impacts are anticipated to this project.
Current operations of the canal in Unit 2 for water delivery and
transport of flood waters have permitted the survival of the shrew,
however, and investigation regarding whether the canal's operation or
use would be restricted in the future under a critical habitat
designation concluded that restrictions are reasonably foreseeable.
Comment (45): One comment letter submitted on behalf of the
Gooselake Holding Company (GHC) clarified the ownership status and
plans for surface water regulation and groundwater recharge within Unit
2, Goose Lake, consistent with a Biological Opinion signed by the
Service on November 15, 2004. GHC owns most of the Goose Lake Area, not
the Semitropic Water Storage District as stated in the DEA.
Our Response (45): The Biological Opinion for this project was
signed after the publication date of the DEA. The Service appreciates
these clarifications to the description in the DEA and they are
incorporated into the revised analysis. It is of note, however, that
Unit 2 of the proposed critical habitat, which contains this project,
has been excluded from the final designation of critical habitat.
Comment (46): One comment inquired whether water purchased for
maintenance of shrew habitat would enhance waterfowl habitat in Unit 2
(Goose Lake), and if so, could a monetary value be placed on the
enhancement and deducted from the cost of water.
Our Response (46): It is possible that waterfowl habitat would be
enhanced by purchase of water for shrew habitat. However, estimating
the monetary value or economic benefits (``negative costs'') of habitat
enhancement is extremely difficult, and requires that a strict set of
conditions be met in order to follow the guidance of the Office of
Management and Budget and develop useable results. While improvements
to habitat to other species may occur, the Service believes that the
benefits of critical habitat designation are best expressed in
biological terms that can be weighed against the expected cost impacts
of the rulemaking. Thus, this DEA does not provide a monetary measure
of the economic benefits of improving habitat for other species.
Summary of Changes From the Proposed Rule
In preparing our final designation of critical habitat for the
Buena Vista Lake shrew, we reviewed comments received on the proposed
designation of critical habitat. In addition to minor clarifications in
the text, we made numerous changes to our proposed designation, as
follows:
(1) Under section 4(b)(2) of the Act, we excluded four properties
with adequate management plans that provide for conservation of the
Buena Vista Lake shrew and its habitat. For more information, refer to
Exclusions Under 4(b)(2) of the Act section below.
(2) We refined our mapping boundaries, using the best information
available to us, to include only occupied areas which we have
determined to have the primary constituent elements and are essential
to the shrew. We removed canals, open water areas, and other
nonessential areas from the proposed critical habitat designation.
(3) Collectively, we excluded a total of 4,566 ac (1,848 ha) of
federally and privately-owned lands from this final critical habitat
designation.
Table 1.--Proposed and Final Critical Habitat Area
------------------------------------------------------------------------
Unit Proposed Final
------------------------------------------------------------------------
1. Kern Wildlife Refuge Unit 387 ac (157 ha)..... 0 ac (0 ha).
2. Goose Lake Unit.......... 1,277 ac (517 ha)... 0 ac (0 ha).
3. Kern Fan Recharge Unit... 2,682 ac (1,085 ha). 0 ac (0 ha).
4. Coles Levee Unit......... 214 ac (87 ha)...... 0 ac (0 ha).
5. Kern Lake Preserve Unit.. 90 ac (36 ha)....... 84 ac (34 ha).
�����������������������������
------------------------------------------------------------------------
Critical Habitat
Section 3(5)(A) of the Act defines critical habitat as--(i) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection; and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the
[[Page 3448]]
species. ``Conservation'' means the use of all methods and procedures
that are necessary to bring an endangered or a threatened species to
the point at which listing under the Act is no longer necessary.
The designation of critical habitat does not affect land ownership
or establish a refuge, wilderness, reserve, preserve, or other
conservation area. It does not allow government or public access to
private lands. Under section 7 of the Act, Federal agencies must
consult with us on activities they undertake, fund, or permit that may
affect critical habitat and lead to its destruction or adverse
modification. However, the Act prohibits unauthorized take of listed
species and requires consultation for activities that may affect them,
including habitat alterations, regardless of whether critical habitat
has been designated. We have found that the designation of critical
habitat provides little additional protection to most listed species.
To be included in a critical habitat designation, habitat must be
either a specific area within the geographic area occupied by the
species on which are found those physical or biological features
essential to the conservation of the species (primary constituent
elements, as defined at 50 CFR 424.12(b)) and which may require special
management considerations or protections, or be specific areas outside
of the geographic area occupied by the species which are determined to
be essential to the conservation of the species. Section 3(5)(C) of the
Act states that not all areas that can be occupied by a species should
be designated as critical habitat unless the Secretary determines that
all such areas are essential to the conservation of the species. Our
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall
designate as critical habitat areas outside the geographic area
presently occupied by the species only when a designation limited to
its present range would be inadequate to ensure the conservation of the
species.''
Regulations at 50 CFR 424.02(j) define special management
considerations or protection to mean any methods or procedures useful
in protecting the physical and biological features of the environment
for the conservation of listed species. When we designate critical
habitat, we may not have the information necessary to identify all
areas that are essential for the conservation of the species.
Nevertheless, we are required to designate those areas we consider to
be essential, using the best information available to us. Accordingly,
we do not designate critical habitat in areas outside the geographic
area occupied by the species unless the best available scientific and
commercial data demonstrate that those areas are essential for the
conservation needs of the species.
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, the impact on national security, and any other
relevant impact of specifying any particular area as critical habitat.
We may exclude areas from critical habitat designation when the
benefits of exclusion outweigh the benefits of including the areas
within critical habitat, provided the exclusion will not result in
extinction of the species.
Our Policy on Information Standards under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that our decisions represent the best scientific and commercial
data available. It requires our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing package for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties
or other entities that develop HCPs, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge.
Section 4 of the Act requires that we designate critical habitat on
the basis of what we know at the time of listing. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by section 7(a)(2) and section 9 of the
Act, as determined on the basis of the best available information at
the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
Our methods for identifying the Buena Vista Lake shrew critical
habitat included in this final designation are identical to the methods
we used in our proposal of critical habitat for the Buena Vista Lake
shrew, published on August 19, 2004 (69 FR 51417).
As required by section 4(b)(2) of the Act and regulations at 50 CFR
424.12, we used the best scientific and commercial data available to
determine areas that contain the physical and biological features that
are essential for the conservation of the shrew. This included data and
information contained in, but not limited to, the proposed and final
rules listing the shrew (65 FR 35033, June 1, 2000, and 67 FR 10101,
March 6, 2002), the Recovery Plan for Upland Species of the San Joaquin
Valley, California (Service 1998), the proposed rule designating
critical habitat (69 FR 51417, August 19, 2004), research and survey
observations published in peer-reviewed articles (Grinnell 1932, 1933;
Hall 1981; Williams and Kilburn 1984; Williams 1986), habitat and
wetland mapping and other data collected and reports submitted by
biologists holding section 10(a)(1)(A) recovery permits, biological
assessments provided to the Service through section 7 consultations,
reports and documents that are on file in the Service's field office
(Center for Conservation Biology 1990; Maldonado et al. 1998; ESRP
1999a; ESRP 2004), personal discussions with experts inside and outside
of the Service with extensive knowledge of the shrew and habitat in the
area, and information received during the two open comment periods. We
also conducted site visits and visual habitat evaluation in areas known
to have shrews, and in areas within the historical ranges that had
potential to contain shrew habitat.
The critical habitat units were delineated by creating rough areas
for each unit by screen-digitizing polygons (map units) using ArcView
(Environmental Systems Research
[[Page 3449]]
Institute, Inc.), a computer Geographic Information System (GIS)
program. The polygons were created by overlaying current and historic
species location points (CNDDB 2004), and mapped wetland habitats
(California Department of Water Resources 1998) or other wetland
location information, onto SPOT imagery (satellite aerial photography)
(CNES/SPOT Image Corporation 1993-2000) and Digital Ortho-rectified
Quarter Quadrangles (DOQQs) (USGS 1993-1998) for areas containing the
shrew. We utilized GIS data derived from a variety of Federal, State,
and local agencies, and from private organizations and individuals. To
identify where essential habitat for the shrew occurs, we evaluated the
GIS habitat mapping and species occurrence information from the CNDDB
(2004). We presumed occurrences identified in CNDDB to be extant unless
there was affirmative documentation that an occurrence had been
extirpated. We also relied on unpublished species occurrence data
contained within our files, including section 10(a)(1)(A) reports and
biological assessments.
These polygons of identified habitat were further evaluated.
Several factors were used to delineate the proposed critical habitat
units from these land areas. We reviewed any information in the
Recovery Plan for Upland Species of the San Joaquin Valley, California
(Service 1998), or other peer-reviewed literature or expert opinion for
the shrew to determine if the designated areas would meet the species'
needs for conservation and whether these areas contained the
appropriate primary constituent elements for the species. Further
refinement was done by using satellite imagery, watershed boundaries,
soil type coverages, vegetation/land cover data, and agricultural/urban
land use data to eliminate areas that did not contain the appropriate
vegetation or associated native plant species, as well as features such
as cultivated agriculture fields, development, and other areas that are
unlikely to contribute to the conservation of the shrew.
As stated earlier, the shrew occurs in habitats in and adjacent to
riparian and wetland edge areas with a vegetation structure that
provides cover, allowing for moist soils that support a diversity of
terrestrial and aquatic insect prey. We have determined that one of the
five known locations of shrew should be designated as critical habitat
(CNDDB 2004). This area contains wetland and/or riparian habitat, is
located within the historical range of the shrew, and is occupied by
the shrew. The specific essential habitat is explained in greater
detail below in the Unit Descriptions section.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to base critical habitat determinations on the
best scientific and commercial data available and to consider those
physical and biological features (primary constituent elements (PCEs))
that are essential to the conservation of the species, and that may
require special management considerations and protection. These
include, but are not limited to: space for individual and population
growth and for normal behavior; food, water, air, light, minerals, or
other nutritional or physiological requirements; cover or shelter;
sites for breeding, reproduction, and rearing (or development) of
offspring; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
The specific primary constituent elements required for the shrew
are derived from the biological needs of the shrew as described in the
Background section of this proposal and in the final listing rule.
Space for Individual and Population Growth and Normal Behavior
As described previously, shrew were recorded in association with
perennial and intermittent wetland habitats along riparian corridors,
marsh edges, and other palustrine (marsh type) habitats in the southern
San Joaquin Valley of California. The shrew presumably occurred in the
moist habitat surrounding wetland margins in the Kern, Buena Vista,
Goose and Tulare Lakes basins on the valley floor below 350 ft (107 m)
elevation (Grinnell 1932, 1933; Hall 1981; Williams and Kilburn 1984;
Williams 1986; Service 1998). With the draining and conversion of the
majority of the shrew's natural habitat from wetland to agriculture and
the channelization of riparian corridors for water conveyance
structures, the vegetative communities associated with the shrew have
become degraded and non-native species have replaced the plant species
associated with the shrew (Grinnell 1932; Mercer and Morgan 1991;
Griggs 1992; Service 1998). Current survey information has identified
five areas where the shrew has been found (CNDDB 2004; Maldonado 1992;
Williams and Harpster 2001; ESRP 2004). The five locations are the
former Kern Lake Preserve (Kern Preserve) on the old Kern Lake bed, the
Kern Fan recharge area, Cole Levee Ecological Preserve (Cole Levee),
the Kern National Wildlife Refuge (Kern NWR), and the Goose Lake slough
bottoms. The vegetative communities associated with these areas and
with shrew occupancy are characterized by the presence of but are not
limited to: Fremont cottonwood (Populus fremontii), willows (Salix
spp.), glasswort (Salicornia sp.), wild-rye grass (Elymus sp.), rush
grass (Juncus sp.), and other emergent vegetation (Service 1998).
Maldonado (1992) found shrews in areas of moist ground covered with
leaf litter near other low-lying vegetation, branches, tree roots, and
fallen logs, or in areas with cool, moist soil beneath dense mats of
vegetation kept moist by its proximity to the water line. He described
specific habitat features that would make them suitable for the shrew:
(1) Dense vegetative cover; (2) a thick, three-dimensional understory
layer of vegetation and felled logs, branches, and detritus/debris; (3)
heavy understory of leaf litter with duff overlying soils; (4)
proximity to suitable moisture; and (5) a year-round supply of
invertebrate prey. Williams and Harpster (2001) concluded that the best
habitat for the shrew was found in ``riparian and wetland communities
with an abundance of leaf litter (humus) or dense herbaceous cover.''
They also determined that ``although moist soil in areas with an
overstory of willows or cotton woods appears to be favored,'' they
doubted that such overstory was essential. Based on changes in the
native habitat composition and structure and information on habitat
descriptions of where the shrew have been found, we include the moist
vegetative communities surrounding permanent and semipermanent wetlands
in our description of shrew critical habitat because they are the
habitat requirements needed by the shrew.
Food
The specific feeding and foraging habits of the shrew are not well
known. In general, shrews primarily feed on insects and other animals,
mostly invertebrates (Harris 1990; Williams 1991; Maldonado 1992). Food
probably is not cached and stored, so the shrew must forage
periodically day and night to maintain its high metabolic rate.
The vegetation communities described above provide a diversity of
structural layers and plant species and likely contribute to the
availability of prey for shrews. Therefore, conservation of the shrew
should include consideration of the habitat needs of prey species,
including structural and species diversity and seasonal
[[Page 3450]]
availability. Shrew habitat must provide sufficient prey base and cover
from which to hunt in an appropriate configuration and proximity to
nesting sites. The shrew feeds indiscriminately on available larvae and
adults of several species of aquatic and terrestrial insects. An
abundance of invertebrates is associated with moist habitats, such as
wetland edges, riparian habitat, or edges of lakes, ponds, or drainages
that possess a dense vegetative cover (Owen and Hoffmann 1983).
Therefore, to be considered essential, critical habitat consists of a
vegetative structure that contains suitable soil moisture capable of
supporting a diversity of invertebrates so that there is a substantial
food source to sustain occurrences of the shrew.
Water
Open water does not appear to be necessary for the survival of the
shrew. The habitat where the shrew have been found contain areas with
both open water and mesic environments (Maldonado 1992; Williams and
Harpster 2001). The availability of water contributes to improved
vegetation structure and diversity which improves cover availability.
The presence of water also attracts potential prey species improving
prey availability.
Reproduction and Rearing of Offspring
Little is known about the reproductive needs of the shrew. The
breeding season begins in February or March and ends in May or June,
but can be extended depending on habitat quality and available moisture
(Paul Collins, Santa Barbara Museum of Natural History, in litt. 2000).
The edges of wetland or marshy habitat allow the shrew to provide
hospitable environments and have a larger prey base to give birth and
raise its young. The shrew's preference for dense vegetative
understories also provides cover from predators. Dense vegetation also
allows for the soil moisture necessary for a consistent supply of
terrestrial and aquatic insect prey (Kirkland 1991; Ma and Talmage
2001; Freas 1990; Maldonado 1992; Maldonado et al. 1998).
The areas proposed for designation as critical habitat for the
shrew consist of occupied habitat with the primary constituent elements
that are essential for adult and juvenile shrews to maintain and
sustain occurrences throughout their range. The PCEs below describe the
physical and biological features essential to shrew conservation.
Special management, such as habitat rehabilitation efforts (e.g.,
provision of an adequate and reliable water source and restoration of
riparian habitat), may be necessary in the unit designated.
Primary Constituents for the Buena Vista Lake Shrew
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that the shrew's primary constituent elements are:
(i) Riparian or wetland communities supporting a complex vegetative
structure with a thick cover of leaf litter or dense mats of low-lying
vegetation; and
(ii) Suitable moisture supplied by a shallow water table,
irrigation, or proximity to permanent or semipermanent water; and
(iii) A consistent and diverse supply of prey.
The requisite riparian and wetland habitat is essential for the
shrew because it provides space and cover necessary to sustain the
entire life cycle needs of the shrew, as well as its invertebrate prey.
The shrew is preyed upon by many large vertebrate carnivores as well as
by avian predators. Therefore, a dense vegetative structure provides
the cover or shelter essential for evading predators as well as serving
as habitat for breeding and reproduction, and allows for the protection
and rearing of offspring and the growth of adult shrews.
Criteria Used To Identify Critical Habitat
We are designating critical habitat on lands that we have
determined essential to the conservation of the Buena Vista Lake shrew.
These areas have the primary constituent elements described above.
Protecting a variety of habitats and conditions that contain the PCEs
will allow for the conservation of the species because it will increase
the ability of the shrew to survive stochastic environmental (e.g.,
fire), natural (e.g., predators), demographic (e.g., low recruitment),
or genetic (e.g., inbreeding) events, therefore lowering the
probability of extinction. Suitable habitat within the historic range
is extremely limited and remaining habitats are vulnerable to both
anthropogenic and natural threats because so few extant occurrences of
the shrew exist, and the number of individuals at each location is
estimated to be low. Also, these areas provide habitats essential for
the maintenance and growth of self-sustaining populations and
metapopulations (a set of local populations where typically migration
from one local population to other areas containing suitable habitat is
possible) of shrews throughout its range. Therefore, these areas are
essential to the conservation of the shrew.
We are designating critical habitat in the units that we have
determined are essential to the conservation of the shrew, except for
those excluded under Section 4(b)(2). In our development of critical
habitat for the shrew, we used the following methods. The unit being
designated has the primary constituent elements described above.
Whenever possible, areas not containing the primary constituent
elements, such as developed areas, were not included in the boundaries
of critical habitat. However, we did not map critical habitat in enough
detail to exclude all developed areas, or other areas unlikely to
contain the primary constituent elements essential for the conservation
of the Buena Vista Lake shrew. Areas within the boundaries of the
mapped units, such as buildings, roads, parking lots, railroad tracks,
canals, and other paved areas, are excluded from the designation by
text, but these exclusions do not show on the maps because their scale
is too small.
In summary, we are designating one critical habitat unit within the
known geographical area occupied by the species. The primary
constituent elements are present and the shrew is extant in this unit.
Additional areas outside of the geographic area currently known to be
occupied by the shrew were evaluated to determine if they are essential
to the conservation of the shrew and should be included in the final
critical habitat designation. Based upon our evaluation of available
information, which included the Recovery Plan, survey data, and
historical records, we do not find any areas outside of the known
geographical area occupied by the shrew to be essential to the
conservation of the species at this time.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be essential for conservation may require special
management considerations or protections. As we undertake the process
of designating critical habitat for a species, we first evaluate lands
defined by those physical and biological features essential to the
conservation of the species for inclusion in the designation pursuant
to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined
by those features to assess whether they may require special management
considerations or protection.
The majority of locations supporting the shrew are on private land,
and are
[[Page 3451]]
subject to a change in the water supply, which maintains the current
habitat. Elevated concentrations of selenium also represent a serious
environmental threat to the species (Service 2002). High levels of
selenium have been measured in recharge and evaporation ponds adjacent
to areas where the shrew occurs (California Department of Water
Resources in litt. 1997). Potential dietary selenium concentrations
from sampled aquatic insects are within ranges toxic to small mammals
(Olson 1986) and could include, but may not be limited to, reduced
reproductive output or premature death (Eisler 1985). The shrew also
faces high risks of extinction from random catastrophic events (e.g.,
floods, drought, and inbreeding) (Service 1998). These threats and
others mentioned above would render the habitat less suitable for the
shrew, and special management may be needed to address them.
The critical habitat unit identified in this final designation may
require special management considerations or protection to maintain a
functioning hydrological regime to maintain the requisite riparian and
wetland habitat, which is essential for the shrew by providing space
and cover necessary to sustain the entire life cycle needs of the
shrew, as well as its invertebrate prey. This designated unit is
threatened by activities that may result in the alteration of the
moisture regime which would lead to reduced water quality or supply,
loss of suitable invertebrate supply for feeding and loss of complex
vegetative structure for cover.
We have determined this unit may require special management or
protection, due to the existing threats to the shrew, and because no
long-term protection or management plan exists for this unit. Absent
special management or protection, this unit is susceptible to existing
threats and activities such as the ones listed in the ``Effects of
Critical Habitat'' section, which could result in degradation and
disappearance of the shrew populations and their habitat.
Critical Habitat Designation
We are designating one (1) unit as critical habitat for the shrew.
This critical habitat unit described below constitutes our best
assessment at this time of the areas essential for the conservation of
the shrew. The unit being designated as critical habitat for the shrew
is the Kern Lake Preserve Unit.
The approximate area encompassed within the critical habitat unit
is shown in Table 2.
Table 2.--Final Critical Habitat Units for the Buena Vista Lake Shrew
----------------------------------------------------------------------------------------------------------------
Federal State Local Private Total
-------------------- agencies -------------------
Unit ----------
ac ha ac ha ac ha ac ha ac ha
----------------------------------------------------------------------------------------------------------------
1. Kern Lake Preserve......................................... ... ... ... ... ... ... 84 34 84 34
------
Grand Total............................................... 0 0 0 0 0 0 84 34 84 34
----------------------------------------------------------------------------------------------------------------
The areas essential for the shrew include an area within the
species' range in California. Below is a brief description of the unit
and the reasons why it is essential for the conservation of the shrew.
Unit 1: Kern Lake Preserve Unit
Modifications were made to this unit which resulted in the
exclusion of a canal and the canal levee banks from the designation.
This exclusion resulted in the reduction of critical habitat
designation from 90 ac (36 ha) to 84 ac (34 ha).
The Kern Lake Unit is approximately 84 acres (34 ha) and is found
in the southern portion of the San Joaquin Valley in southwestern Kern
County, approximately 16 miles south of Bakersfield. This unit lies
between Hwy 99 and Interstate 5, south of Herring Road near the New Rim
Ditch. This unit is essential to the conservation of the species
because it represents one of five remaining areas known to support an
extant population of the shrew that also contains the PCEs. The Kern
Lake area was formerly managed by the Nature Conservancy for the
Boswell Corporation, and was once thought to contain the last remaining
population of the shrew. This area does not have a conservation
easement and is managed by the landowners. We are unaware of any plans
to develop this site.
The Kern Lake Unit is situated at the edge of the historic Kern
Lake. Since the advent of reclamation and development, the surrounding
lands have seen intensive cattle and sheep ranching and, more recently,
cotton and alfalfa farming. While Kern Lake is now only a dry lake bed,
the unit's ``Gator Pond'' site and wet alkali meadows stand as unique
reminders of their biological heritage.
A portion of the runoff from the surrounding hills travels through
underground aquifers, surfacing as artesian springs at Gator Pond. The
heavy clay soils support a distinctive assemblage of native species. An
island of native vegetation situated among a sea of cotton fields, this
Unit contains three ecologically significant natural communities:
freshwater marsh, alkali meadow, and iodine bush scrub. Gator Pond, in
the sanctuary's eastern quarter, lies near the shoreline of the
historic Kern Lake.
Shrews were discovered at the Kern Lake Unit in 1986 near a
community of saltbushes and saltgrass. In 1988 and 1989, 25 shrews were
captured in low-lying, riparian and/or wetland habitats with an
overstory of cottonwoods and willows, abundant ground litter, and moist
soil (Center for Conservation Biology 1990).
The Kern Lake Unit may require special management considerations or
protection to maintain a functioning hydrological regime to maintain
the requisite riparian and wetland habitat, which is essential for the
shrew by providing space and cover necessary to sustain the entire life
cycle needs of the shrew, as well as its invertebrate prey. This
designated unit is threatened by activities that may result in the
alteration of the moisture regime which would lead to reduced water
quality or supply, loss of suitable invertebrate supply for feeding and
loss of complex vegetative structure for cover. Furthermore, no long-
term protection or management plan exists for this unit.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to
[[Page 3452]]
any species that is proposed or listed as endangered or threatened and
with respect to its critical habitat, if any is proposed or designated.
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act
requires Federal agencies to confer with us on any action that is
likely to jeopardize the continued existence of a proposed species or
result in destruction or adverse modification of proposed critical
habitat. Conference reports provide conservation recommendations to
assist the agency in eliminating conflicts that may be caused by the
proposed action. The conservation recommendations in a conference
report are advisory. If a species is listed or critical habitat is
designated, section 7(a)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
(action agency) must enter into consultation with us. Through this
consultation, the action agency ensures that the permitted actions do
not destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
an opinion that is prepared according to 50 CFR 402.14, if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)).
Activities on Federal lands that may affect the shrew or its
critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or
some other Federal action, including funding (e.g., Federal Highway
Administration or Federal Emergency Management Agency funding), will
also continue to be subject to the section 7 consultation process.
Federal actions not affecting listed species or critical habitat and
actions on non-Federal and private lands that are not federally funded,
authorized, or permitted do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat include those that appreciably reduce the value of critical
habitat to the shrew. We note that such activities may also jeopardize
the continued existence of the species.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the value of critical
habitat to the listed species.
Federal agencies already consult with us on activities in areas
currently occupied by the species to ensure that their actions do not
jeopardize the continued existence of the species. These actions
include, but are not limited to:
(1) Actions that would affect riparian or wetland areas by any
Federal Agency. Such activities could include, but are not limited to,
flood control or changes in water banking activities. These activities
could eliminate or reduce the habitat necessary for the reproduction,
sheltering, or growth of Buena Vista Lake shrews.
(2) Actions that would affect the regulation of water flows by any
Federal agency. Such activities could include, but are not limited to,
damming, diversion, and channelization. These activities could
eliminate or reduce the habitat necessary for the reproduction,
sheltering or growth of Buena Vista Lake shrews.
(3) Actions that would involve regulations funded or permitted by
the Federal Highway Administration. (We note that the Federal Highway
Administration does not fund the routine operations and maintenance of
the State highway system.). Such activities could include, but are not
limited to, new road construction and right-of-way designation. These
activities could eliminate or reduce riparian or wetland habitat along
river crossings necessary for reproduction, sheltering or growth of
Buena Vista Lake shrews.
(4) Actions that would involve regulation of airport improvement
activities by the Federal Aviation Administration. Such activities
could include, but are not limited to, the creation or expansion of
airport facilities. These activities could eliminate or reduce riparian
or wetland habitat necessary for the reproduction, sheltering,
foraging, or growth of Buena Vista Lake shrews.
(5) Actions that would involve licensing of construction of
communication sites by the Federal Communications Commission. Such
activities could include, but are not limited to, the installation of
new radio equipment and facilities. These activities could eliminate or
reduce the habitat necessary for the reproduction, sheltering,
foraging, or growth of Buena Vista Lake shrews.
(6) Actions that would involve funding of activities by the U.S.
[[Page 3453]]
Environmental Protection Agency, Department of Energy, Federal
Emergency Management Agency, Federal Highway Administration, or any
other Federal agency. Such activities could include, but are not
limited to, activities associated with the cleaning up of Superfund
sites, erosion control activities, and flood control activities. These
activities could eliminate or reduce upland and/or aquatic habitat for
Buena Vista Lake shrews.
(7) Actions that would affect waters of the United States by the
Army Corps under section 404 of the Clean Water Act. Such activities
could include, but are not limited to, placement of fill into wetlands.
These activities could eliminate or reduce the habitat necessary for
the reproduction, feeding, or growth of Buena Vista Lake shrews.
All lands within this designation as critical habitat are within
the historical geographic area occupied by the species, and are likely
to be used by the shrew whether for foraging, breeding, growth of
juveniles, dispersal, migration, genetic exchange, or sheltering. We
consider all lands included in this designation to be essential to the
survival of the species. Federal agencies already consult with us on
activities in areas currently occupied by the species, and also one
whether the species may be affected by the action, to ensure that their
actions do not jeopardize the continued existence of the species.
Therefore, we believe that the designation of critical habitat is not
likely to result in a significant regulatory burden above that already
in place due to the presence of the listed species. Few additional
consultations are likely to be conducted due to the designation of
critical habitat.
Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of
the Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species on which are
found those physical and biological features (i) essential to the
conservation of the species and (ii) which may require special
management considerations or protection. Therefore, areas within the
geographic area occupied by the species that do not contain the
features essential for the conservation of the species are not, by
definition, critical habitat. Similarly, areas within the geographic
area occupied by the species that do not require special management or
protection also are not, by definition, critical habitat. To determine
whether an area requires special management, we first determine if the
essential features located there generally require special management
to address applicable threats. If those features do not require special
management, or if they do in general but not for the particular area in
question because of the existence of an adequate management plan or for
some other reason, then the area does not require special management.
We consider a current plan to provide adequate management or
protection if it meets three criteria: (1) The plan is complete and
provides a conservation benefit to the species (i.e., the plan must
maintain or provide for an increase in the species' population, or the
enhancement or restoration of its habitat within the area covered by
the plan); (2) the plan provides assurances that the conservation
management strategies and actions will be implemented (i.e., those
responsible for implementing the plan are capable of accomplishing the
objectives, and have an implementation schedule or adequate funding for
implementing the management plan); and (3) the plan provides assurances
that the conservation strategies and measures will be effective (i.e.,
it identifies biological goals, has provisions for reporting progress,
and is of a duration sufficient to implement the plan and achieve the
plan's goals and objectives).
Further, 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,
the effect on national security, 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, following an
analysis, that the benefits of such 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.
In our critical habitat designations, we use both the provisions
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those
specific areas that we are considering proposing designating as
critical habitat as well as for those areas that are formally proposed
for designation as critical habitat. Lands we have found do not meet
the definition of critical habitat under section 3(5)(A) or have
excluded pursuant to section 4(b)(2) include those covered by the
following types of plans if they provide assurances that the
conservation measures they outline will be implemented and effective:
(1) Legally operative HCPs that cover the species, (2) draft HCPs that
cover the species and have undergone public review and comment (i.e.,
pending HCPs), (3) Tribal conservation plans that cover the species,
(4) State conservation plans that cover the species, and (5) National
Wildlife Refuge System Comprehensive Conservation Plans.
Relationship of Critical Habitat to the Kern National Wildlife Refuge
Unit
We are excluding the Kern National Wildlife Refuge.
The Kern National Wildlife Refuge has an approved and signed
Comprehensive Conservation Plan (CCP) (Service 2004a) that provides for
the protection and management of all trust resources, including
federally listed species and sensitive natural habitats. One goal of
the CCP for the Kern National Wildlife Refuge is to ``restore and
maintain representative examples of Tulare Basin riparian and saltbush
scrub habitats on Kern Refuge.'' To reach this goal, the approved CCP
provides for a water source to sustain riparian vegetation and remnant
sloughs that support the Buena Vista Lake shrew through the flooding
and managing of riparian areas in the fall, winter, and early spring,
as well as irrigating trees in riparian areas during the summer months.
As part of the approved CCP, an additional 15 acres of riparian
vegetation would be planted and maintained to provide habitat for the
shrew. The plan also calls for the eradication of salt cedar from the
riparian areas and restoration of riparian areas through planting of
riparian trees, shrubs, and forbs native to riparian forests in the
area. This plan has already undergone a Section 7 consultation that has
evaluated the plan for consistency with the conservation needs of the
species (Service 2004b). Funding for the implementation of the CCP
comes from the Kern Refuge Complex's annual operation budget.
Management items that benefit the shrew will be accomplished by
existing staff and existing annual budget.
The Refuge has completed a Comprehensive Conservation Plan (CCP)
that addresses the shrew, the CCP has undergone section 7 review, and
it clearly provides a conservation benefit to the species. The Service
has a statutory mandate to manage the refuge for the conservation of
listed species, and the CCP provides a detailed plan of how it will do
so. The Refuge accordingly does not meet the definition of critical
habitat under section 3(5)(A) of the Act because management plans
already in place provide for the conservation of the shrew, and no
special management or protection will be required.
[[Page 3454]]
Relationship of Critical Habitat to the Goose Lake Project
Section 4(b)(2) of the Act requires us to consider other relevant
impacts, in addition to economic impacts, of designating critical
habitat. Section 7 of the Act authorizes us to issue permits for the
take of listed wildlife species incidental to otherwise lawful
activities. An incidental take permit application must be supported by
a Biological Assessment that identifies conservation measures that the
permittee agrees to implement for the species to minimize and mitigate
the impacts of the permitted incidental take.
One proposed critical habitat unit (Goose Lake Unit) warrants
exclusion from the final designation of critical habitat under Section
4(b)(2) of the Act based on the special management considerations and
protections afforded the Buena Vista Lake shrew habitat through the
implementation of a Biological Opinion developed through a Section 7
consultation on a wetlands restoration and enhancement project funded
through the North American Wetlands Conservation Act (NAWCA) in the
Goose Lake bottoms. We believe the benefits excluding this wetlands
restoration and enhancement project from the critical habitat
designations will outweigh the benefits of including them. The
following represents our rationale for excluding the Goose Lake Unit
for Buena Vista Lake shrew from the final designated critical habitat.
(1) Benefits of Inclusion
Designation of critical habitat provides important information on
those habitats and their primary constituent elements that are
essential to the conservation of the species. This information is
particularly important to any Federal agency, State, county, local
jurisdiction, conservation organization, or private landowner that may
be evaluating adverse actions or implementing conservation measures
that involve those habitats. The benefit of a critical habitat
designation would ensure that any actions authorized, funded, or
carried out by a Federal agency would not likely destroy or adversely
modify any critical habitat. Without critical habitat, some site-
specific projects might not trigger consultation requirements under the
Act in areas where species are not currently present; in contrast,
Federal actions in areas occupied by listed species would still require
consultation under Section 7 of the Act. We consider all habitats
within this designation to be occupied. Therefore, we anticipate little
additional regulatory benefit from including these lands in critical
habitat beyond what is already provided by the existing Section 7 nexus
for habitat areas occupied by the listed extant species.
Where conservation measures are in place, our experience indicates
that this benefit is small or nonexistent. The benefits of excluding
projects with an approved biological opinion normally outweigh the
benefits of inclusion. The principal benefit of any designated critical
habitat is that federally funded or authorized activities in such
habitat that may affect the 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. We have
found that if a project has completed its Section 7 consultation then
the benefit of excluding an area from critical habitat can be greater
than not designating the area. A Biological Opinion was developed
through a Section 7 consultation on a wetlands restoration and
enhancement project that includes areas in the Goose Lake Unit. In the
Biological Opinion, we determined that the project would ensure the
long-term survival of the covered species in the plan area, including
the shrew. By implementing the Biological Opinion, this project
includes management measures and protections for conservation of lands
designed to protect, restore, and enhance their value as habitat for
the Buena Vista Lake shrew. The project is funded through the NAWCA,
which mandates a management agreement for the project.
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 values of an area. This may
focus and contribute to conservation efforts of other parties by
clearly delineating areas of high conservation value for certain
species. However, we believe that this education benefit has largely
been achieved. The additional educational benefits, which might arise
from critical habitat designation, are largely accomplished through the
proposed rule and request for public comment that accompanied the
development of this regulation. We have accordingly determined that the
benefits of designating critical habitat on this property covered by
the described conservation measures above are small.
(2) Benefits of Exclusion
The Service believes that Buena Vista Lake shrews within the
properties with conservation strategies will benefit substantially from
landowner voluntary management actions due to a reduction in
competition with non-native predators, a reduction in risk of
chemically altered aquatic habitats, a reduction in risk of loss of
aquatic and upland habitat, and the enhancement and creation of aquatic
habitat. The conservation benefits of critical habitat are primarily
regulatory or prohibitive in nature. Where consistent with the
discretion provided by the Act, the Service believes it is necessary to
implement policies that provide positive incentives to private
landowners to voluntarily conserve natural resources and that remove or
reduce disincentives to conservation. Thus, we believe it is essential
for the recovery of the Buena Vista Lake shrew to build on continued
conservation activities such as these with a proven partner, and to
provide positive incentives for other private landowners who might be
considering implementing voluntary conservation activities but have
concerns about incurring incidental regulatory or economic impacts.
While the consultation requirement associated with critical habitat
on the Goose Lake Unit would 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. The Goose Lake Unit is currently protected under the
Conservation Measures outlined for long-term management in a Section 7
Biological Opinion that was signed for the project in November 2004.
The project is funded by NAWCA, which provides assurances for a 25-year
long-term agreement. Through this NAWCA project and Section 7
consultation, Goose Lake project will enhance and restore wetlands and
will be managed in this manner for the 25-year term of the project. The
conservation measures outlined in the biological opinion will protect
the shrew during construction and maintenance of the project and the
wetlands restored and enhanced by the project will provide essential
habitat for the shrew.
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 and the Federal
District Court decision concerning critical habitat (Center for
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan.
13, 2003), we have determined that the benefits of excluding the
Gooselake Holding Company property in Unit 2 as critical
[[Page 3455]]
habitat outweigh the benefits of including it as critical habitat for
the Buena Vista Lake shrew.
This conclusion is based on the following factors:
(1) The Gooselake Holding Company property is currently operating
under a Section 7 biological opinion in cooperation with the Service
and Ducks Unlimited to implement conservation measures and achieve
important conservation goals through the restoration and enhancement of
important riparian and wetland habitat for the Buena Vista Lake shrew.
(2) Given the current conservation strategies created and
implemented by the Gooselake Holding Company, the Service believes the
additional regulatory and educational benefits of including these lands
as critical habitat are relatively small. The designation of critical
habitat can serve to educate the general public as well as conservation
organizations regarding the potential conservation value of an area,
but this goal is already being accomplished through the identification
of this area in the management plans described above. Likewise, there
will be little additional Federal regulatory benefit to the species
because (a) this unit, if included, would likely not be adversely
affected to any significant degree by Federal activities requiring
section 7 consultation, and (b) all units are already occupied by the
Buena Vista Lake shrew, and a section 7 nexus already exists. The
Service is unable to identify any other potential benefits associated
with critical habitat for these properties.
(3) Excluding these privately owned lands with conservation
strategies from critical habitat may, by way of example, provide
positive social, legal, and economic incentives to other non-Federal
landowners who own lands that could contribute to listed species
recovery if voluntary conservation measures on these lands are
implemented.
In conclusion, we find that the exclusion of critical habitat on
Gooselake Holding Company would most likely have a net positive
conservation effect on the recovery and conservation of the Buena Vista
Lake shrew when compared to the positive conservation effects of a
critical habitat designation. As described above, the overall benefits
to these species of a critical habitat designation for these properties
are relatively small. In contrast, we believe that this exclusion will
enhance our existing partnership with these landowners, and it will set
a positive example and provide positive incentives to other non-Federal
landowners who may be considering implementing voluntary conservation
activities on their lands. We conclude there is a higher likelihood of
beneficial conservation activities occurring in these and other areas
without designated critical habitat than there would be with designated
critical habitat on these properties.
Relationship of Critical Habitat to the Kern Fan Recharge Area Unit
Section 4(b)(2) of the Act requires us to consider other relevant
impacts, in addition to economic impacts, of designating critical
habitat. One proposed critical habitat unit (Kern Fan Recharge Area
Unit) warrants exclusion from the final designation of critical habitat
under Section 4(b)(2) of the Act based on the special management
considerations and protections afforded the Buena Vista Lake shrew
habitat through a Management Plan for the Kern Fan Recharge Area
developed the City of Bakersfield. We have determined that the benefits
of excluding the Kern Fan Unit from the critical habitat designation
will outweigh the benefits of including it in the final designation.
The following represents our rationale for excluding the Kern Fan
Recharge Area Unit for Buena Vista Lake shrew from the final designated
critical habitat.
Portions of the recharge area are flooded sporadically, forming
fragmented wetland communities throughout the area. Narrow strips of
riparian communities exist on both sides of the Kern River. The plant
communities of the Kern Fan Water Recharge Area include a mixture of
Valley saltbush scrub, Great Valley mesquite shrub, and some remnant
riparian areas. Remnant riparian areas are found throughout the water
bank area, but are mainly located near the main channel of the Kern
River. The Buena Vista Lake shrew has been documented on the Kern Fan
Water Recharge Unit. This Unit is currently protected under a Service-
approved Management Plan developed by the City of Bakersfield that
includes yearly monitoring and Service approval of any changes.
(1) Benefits of Inclusion
Designation of critical habitat provides important information on
those habitats and their primary constituent elements that are
essential to the conservation of the species. This information is
particularly important to any Federal agency, State, county, local
jurisdiction, conservation organization, or private landowner that may
be evaluating adverse actions or implementing conservation measures
that involve those habitats. The benefit of a critical habitat
designation would ensure that any actions authorized, funded, or
carried out by a Federal agency would not likely destroy or adversely
modify any critical habitat. Without critical habitat, some site-
specific projects might not trigger consultation requirements under the
Act in areas where species are not currently present; in contrast,
Federal actions in areas occupied by listed species would still require
consultation under section 7 of the Act. We consider all habitats
within this designation to be occupied. Therefore, we anticipate little
additional regulatory benefit from including these lands in critical
habitat beyond what is already provided by the existing section 7 nexus
for habitat areas occupied by the listed extant species.
The benefits of including areas with approved management plans in
critical habitat are normally small. 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. Where conservation measures are in place, our
experience indicates that this benefit is small or nonexistent.
Currently approved management plans are already designed to ensure the
long-term survival of covered species within the plan area. Management
plans include management measures and protections for conservation
lands designed to protect, restore, and enhance their value as habitat
for the Buena Vista Lake shrew.
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 values of an area. This may
focus and contribute to conservation efforts of other parties by
clearly delineating areas of high conservation value for certain
species. However, we believe that this education benefit has largely
been achieved. The additional educational benefits, which might arise
from critical habitat designation, are largely accomplished through the
proposed rule and request for public comment that accompanied the
development of this regulation. We have accordingly determined that the
benefits of designating critical habitat on this property covered by
the described conservation measures above are small.
[[Page 3456]]
(2) Benefits of Exclusion
Approximately 80 percent of the occurrence records of the Buena
Vista Lake shrew are on private lands. Proactive voluntary conservation
efforts by private or non-Federal entities are necessary to prevent the
extinction and promote the recovery of the Buena Vista Lake shrew in
the Tulare Basin.
We have determined that the Buena Vista Lake shrew within the
properties with management plans or conservation strategies that
protect or enhance the conservation of the species will benefit
substantially from voluntary landowner management actions due to an
enhancement and creation of riparian and wetland habitat and a
reduction in risk of loss of riparian habitat. The conservation
benefits of critical habitat are primarily regulatory or prohibitive in
nature. Where consistent with the discretion provided by the Act, the
Service believes it is necessary to implement policies that provide
positive incentives to private landowners to voluntarily conserve
natural resources and that remove or reduce disincentives to
conservation (Wilcove et al. 1998). Thus, we believe it is essential
for the recovery of the Buena Vista Lake shrew to build on continued
conservation activities such as these with a proven partner, and to
provide positive incentives for other private landowners who might be
considering implementing voluntary conservation activities but have
concerns about incurring incidental regulatory or economic impacts.
The City of Bakersfield manages the Kern Fan Recharge Area in such
a way as to promote the conservation of the Buena Vista Lake shrew. The
Service-approved management plan developed by the City of Bakersfield
includes management of the area for the benefit of the shrew. These
activities include limiting public access to the site, cessation of
grazing practices, protection of the site from development or
encroachment, maintenance of the site as permanent open space that has
been left predominantly in its natural vegetative state, and the
spreading of flood waters which promotes the moisture regime and
wetland and riparian vegetation determined to be essential for the
conservation of the shrew. Annual monitoring of the site will also be
implemented to promote adaptive management of the area for the optimal
enhancement of wetland and riparian vegetation for the benefit of the
shrew. Funding for the implementation of the habitat management plan is
assured through the annual fiscal budget of the City of Bakersfield's
Water Resource Department.
(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 and the Federal
District Court decision concerning critical habitat (Center for
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan.
13, 2003), we have determined that the benefits of excluding the City
of Bakersfield property in Unit 3 from critical habitat outweigh the
benefits of including them as critical habitat for the Buena Vista Lake
shrew.
This conclusion is based on the following factors:
(1) The City of Bakersfield property is currently operating under a
Service-approved Management Plan to implement conservation measures and
achieve important conservation goals through the management of water
banking operations to achieve the optimal flooding regime for the
enhancement of important riparian and wetland habitat for the Buena
Vista Lake shrew.
(2) Given the past and current conservation strategies created and
implemented by the City of Bakersfield, the Service believes the
additional regulatory and educational benefits of including these lands
as critical habitat are relatively small. The Service anticipates that
the conservation strategies will continue to be implemented in the
future, and that the funding for these activities will continue to be
available because the City of Bakersfield is enterprise funded and
receives an annual budget for the operation and maintenance of the Kern
Fan Recharge Area. The designation of critical habitat can serve to
educate the general public as well as conservation organizations
regarding the potential conservation value of an area, but this goal is
already being accomplished through the identification of this area in
the management plans described above. Likewise, there will be little
additional Federal regulatory benefit to the species because (a) there
is a low likelihood that these proposed critical habitat units will be
negatively affected to any significant degree by Federal activities
requiring section 7 consultation, and (b) all units are already
occupied by the Buena Vista Lake shrew and a section 7 nexus already
exists. The Service is unable to identify any other potential benefits
associated with critical habitat for these properties.
(3) Excluding these privately owned lands with conservation
strategies from critical habitat may, by way of example, provide
positive social, legal, and economic incentives to other non-Federal
landowners who own lands that could contribute to listed species
recovery if voluntary conservation measures on these lands are
implemented.
In conclusion, we find that the exclusion of critical habitat on
the City of Bakersfield's Kern Fan Water Recharge Unit would most
likely have a net positive conservation effect on the recovery and
conservation of the Buena Vista Lake shrew when compared to the
positive conservation effects of a critical habitat designation. As
described above, the overall benefits to these species of a critical
habitat designation for these properties are relatively small. In
contrast, we believe that this exclusion will enhance our existing
partnership with these landowners, and it will set a positive example
and provide positive incentives to other non-Federal landowners who may
be considering implementing voluntary conservation activities on their
lands. We conclude there is a higher likelihood of beneficial
conservation activities occurring in these and other areas without
designated critical habitat than there would be with designated
critical habitat on these properties.
Relationship of Critical Habitat to the Coles Levee Unit
The Coles Levee Ecosystem Preserve has been established with a
conservation easement that is held by the California Department of Fish
and Game. This conservation easement establishes that this area will be
``retained forever in a natural condition and to prevent any use of the
property that will significantly impair or interfere with the
conservation values of the property.'' The Conservation Easement limits
the use of the Property to such activities as set forth and reserved in
the easement, including those involving the conservation, protection,
restoration and enhancement of native species and their habitat.
We proposed as critical habitat, but have now considered for
exclusion from the final designation, the Coles Levee Unit that is
entirely within the Coles Levee Ecosystem Preserve.
(1) Benefits of Inclusion
There is minimal benefit from designating critical habitat for the
Buena Vista Lake shrew within the Coles Levee Ecosystem Preserve
because these lands are already managed for the conservation of
wildlife. One possible benefit of including these lands as critical
habitat would be to educate the
[[Page 3457]]
public regarding the conservation values of these areas and the habitat
they support. However, 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.
Additionally, the designation of critical habitat will not have any
appreciable effect on the development or implementation of public
education programs in these areas.
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 values of an area. This may
focus and contribute to conservation efforts of other parties by
clearly delineating areas of high conservation value for certain
species. However, we believe that this education benefit has largely
been achieved. The additional educational benefits, which might arise
from critical habitat designation, are largely accomplished through the
proposed rule and request for public comment that accompanied the
development of this regulation. We have accordingly determined that the
benefits of designating critical habitat on this property covered by
the described conservation measures above are small.
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 the Coles Levee Ecosystem preserve
already include specifically managing for targeted listed species and
sensitive species; therefore, the benefit from additional consultation
is likely also to be minimal.
(2) Benefits of Exclusion
While the consultation requirement associated with critical habitat
on the Coles Levee Ecosystem Preserve would 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. The Coles Levee Ecosystem Preserve is
currently managed by the California Department of Fish and Game through
a conservation easement and management agreement that is funded in
perpetuity. Through this management, the entire Preserve is fenced to
prevent trespass grazing or other unauthorized uses of the area. There
is additional fencing around the pond area that provides for shrew
habitat. As part of the management, ARCO will provide for a continuous
water source to the pond to sustain habitat beneficial to the shrew.
The management agreement for the Preserve also includes impact and
avoidance measures for any construction that will occur in the area and
provides for the monitoring of the Preserve on a yearly basis for
plants and animals. The agreement also stipulates a mitigation
requirement at a 4 to 1 ratio for replacement of any habitat that is
impacted. 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) The Benefits of Exclusion Outweigh the Benefits of Inclusion
We believe that the potential disincentives to the State's active
management of their trust resources that are provided by designation of
critical habitat are appreciably greater than the benefits to be
derived from such designation. This is a result of the fact that these
lands are already managed to protect and enhance unique and important
natural resource values. We therefore conclude that the benefits of
excluding the Coles Levee Ecosystem Preserve lands from the final
critical habitat designation outweigh the benefits of including them.
Such exclusion will not increase the likelihood that management
activities would be proposed that would appreciably diminish the value
of the habitat for conservation of the species. Further, such exclusion
will not result in the extinction of the species. We therefore conclude
that the benefits of excluding Coles Levee Ecosystem Preserve lands
from the final critical habitat designation outweigh the benefits of
including them.
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act and the Federal
District Court decision concerning critical habitat (Center for
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan.
13, 2003), we have determined that the benefits of excluding the Coles
Levee Ecosystem Preserve property in Unit 4 as critical habitat
outweigh the benefits of including them as critical habitat for the
Buena Vista Lake shrew.
Economic Analysis
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 such
exclusions outweigh the benefits of specifying such areas as part of
critical habitat. We cannot exclude such areas from critical habitat if
such exclusion would result in the extinction of the species.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on November 30, 2004. We accepted
comments on the draft analysis until December 15, 2004.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the Buena Vista Lake shrew. This information is intended to
assist the Secretary in making decisions about whether the benefits of
excluding particular areas from the designation outweigh the benefits
of including those areas in the designation. This economic analysis
considers the economic efficiency effects that may result from the
designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
Our proposed critical habitat rule pertained to the Buena Vista
Lake shrew. Therefore, our economic analysis evaluated the potential
future effects associated with the listing of this species as
endangered under the Act, as well as any potential effect of the
critical habitat designation above and beyond those regulatory and
economic impacts associated with listing.
[[Page 3458]]
We received nine comment letters on the draft economic analysis of
the proposed designation. Following the close of the comment period, we
considered comments, prepared responses to comments, and prepared a
summary of revisions to economic issues based on final critical habitat
designation (see Responses to Comments section). The economic analysis
indicates that is rule will not have an annual economic effect of $100
million or more. Based on our economic analysis, the annualized
economic effects of this designation are estimated to be $8,752 to
$12,932, because the economic analysis is for Kern Lake only, as all
the other units were excluded from designation. We have excluded 4,173
ac (1,689 ha) of privately owned lands (and 387 ac (157 ha) of federal
land) analyzed in the draft economic analysis based on non-economic
considerations.
A copy of the final economic analysis and a description of the
exclusion process with supporting documents may be obtained from the
Sacramento Fish and Wildlife Office directly (see ADDRESSES section).
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action; the draft economic
analysis was made available for public comment, and we considered those
comments during the preparation of this rule. We used this analysis to
meet the requirement of section 4(b)(2) of the Act to determine the
economic consequences of designating the specific area as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2), if we
determine that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless we
determine, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species.
The economic analysis indicates that this rule will not have an
annual economic effect of $100 million or more.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate critical habitat for the shrew is not a
significant regulatory action under Executive Order 12866, and it is
not expected to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. (At the
time of enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) Due to current public knowledge of the species' protection, the
prohibition against take of the species both within and outside of the
designated areas, and the fact that critical habitat provides no
incremental restrictions, we do not anticipate that this rule will
significantly or uniquely affect small governments. As such, Small
Government Agency Plan is not
[[Page 3459]]
required. We will, however, further evaluate this issue as we conduct
our economic analysis and revise this assessment if appropriate.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the Buena Vista Lake shrew in a
takings implication assessment, which indicates that this rule would
not pose significant takings implications. The takings implications
assessment concludes that this final designation of critical habitat
for the shrew does not pose significant takings implications.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI policy, we requested information from,
and coordinated development of, this proposed critical habitat
designation with appropriate State resource agencies in California. The
designation of critical habitat in areas currently occupied by the
shrew imposes no additional restrictions to those currently in place
and, therefore, has little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments in that the areas essential to the conservation of
the species are more clearly defined, and the primary constituent
elements of the habitat necessary to the survival of the species are
specifically identified. While making this definition and
identification does not alter where and what federally sponsored
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Endangered Species Act. This
proposed rule uses standard property descriptions and identifies the
primary constituent elements within the designated areas to assist the
public in understanding the habitat needs of the shrew.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no tribal lands essential for the conservation of the shrew.
Therefore, critical habitat for the shrew has not been designated on
Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Sacramento Fish and
Wildlife Office (see ADDRESSES section).
Author(s)
The primary author of this package is the Sacramento Fish and
Wildlife Office staff.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
record keeping requirements, Transportation.
Regulation Promulgation
0
For the reasons outlined in the preamble, we amend part 17, subchapter
B of chapter I, title 50 of the Code of Federal Regulations, as
follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.11(h), revise the entry for ``Shrew, Buena Vista Lake''
under ``MAMMALS'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Special
Historic range endangered or Status When listed Critical habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Shrew, Buena Vista Lake Sorex ornatus U.S.A. (CA) Entire............ E 725 17.95(a) NA
relictus.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 3460]]
* * * * *
0
3. Amend Sec. 17.95(a) by adding an entry for ``Buena Vista Lake
shrew'' in the same alphabetical order as this species appears in the
table in Sec. 17.11, to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
Buena Vista Lake Shrew (Sorex ornatus relictus)
(1) Critical habitat units are depicted for Kern County,
California, on the maps below.
(2) The primary constituent elements of critical habitat for the
Buena Vista Lake shrew are the habitat components that provide:
(i) Riparian or wetland communities supporting a complex vegetative
structure with a thick cover of leaf litter or dense mats of low-lying
vegetation; and
(ii) Suitable moisture supplied by a shallow water table,
irrigation, or proximity to permanent or semipermanent water; and
(iii) A consistent and diverse supply of prey.
(3) Critical habitat does not include existing features and
structures, such as buildings, aqueducts, airports, roads, and other
developed areas not containing one or more of the primary constituent
elements.
(4) Data layers defining map units were created on a base of USGS
7.5' quadrangles, and critical habitat units were then mapped using
Universal Transverse Mercator (UTM) coordinates.
(5) Unit 1: Kern Lake, Kern County, California.
(i) From USGS 1:24,000 quadrangle map Coal Oil Canyon, California,
land bounded by the following UTM 11 NAD 27 coordinates (E,N):
(ii) Western Polygon: 312678, 3887297; 313415, 3887298; 313415,
3887297; 313439, 3887297; 313437, 3887127; 313415, 3887121; 313415,
3887121; 313369, 3887111; 313304, 3887106; 313237, 3887111; 313199,
3887141; 313174, 3887156; 313172, 3887156; 313169, 3887157; 313156,
3887157; 313139, 3887155; 313124, 3887148; 313109, 3887135; 313096,
3887121; 313081, 3887105; 313064, 3887087; 313051, 3887072; 313042,
3887062; 313035, 3887052; 313031, 3887048; 313002, 3887026; 313001,
3887026; 313000, 3887025; 312990, 3887023; 312979, 3887026; 312963,
3887031; 312958, 3887033; 312947, 3887036; 312933, 3887044; 312921,
3887050; 312911, 3887052; 312900, 3887052; 312896, 3887052; returning
to 312678, 3887297;
(iii) Eastern Polygon: 313471, 3887135; 313472, 3887797; 313823,
3887791; 313823, 3887314; 313786, 3887267; 313696, 3887224; 313618,
3887189; 313491, 3887139; returning to 313471, 3887135.
(iv) Note: Map follows:
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[[Page 3461]]
[GRAPHIC] [TIFF OMITTED] TR24JA05.000
* * * * *
Dated: January 12, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-982 Filed 1-13-05; 12:49 pm]
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