[Federal Register Volume 70, Number 205 (Tuesday, October 25, 2005)]
[Proposed Rules]
[Pages 61591-61595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21205]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU23
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Distinct Population Segment of the California
Tiger Salamander in Sonoma County
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period and notice of
availability of draft economic analysis.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the comment period on the proposed designation of critical habitat
for the distinct population segment (DPS) of the California tiger
salamander in Sonoma County and the availability of the draft economic
analysis of the proposed designation of critical habitat. The draft
economic analysis identifies potential costs of approximately $336
million over a 20-year period or approximately $17 million per year as
a result of the proposed designation of critical habitat, including
those costs coextensive with listing. We are reopening the comment
period to allow all interested parties an opportunity to comment
simultaneously on the proposed rule and the associated draft economic
analysis. Comments previously submitted need not be resubmitted as they
will be incorporated into the public record as part of this comment
period, and will be fully considered in preparation of the final rule.
DATES: We will accept public comments until November 14, 2005.
ADDRESSES: Written comments and materials may be submitted to us by any
one of the following methods:
1. You may submit written comments and information to the Field
Supervisor, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-
2605, Sacramento, CA 95825;
2. You may hand-deliver written comments and information to our
Sacramento Fish and Wildlife Office, at the above address, or fax your
comments to 916/414-6713; or
3. You may send comments by electronic mail (e-mail) to:
[email protected]. For directions on how to file
comments electronically, see the ``Public Comments Solicited'' section.
In the event that our Internet connection is not functional, please
submit your comments by the alternate methods mentioned above.
Copies of the draft economic analysis and the proposed rule for
critical habitat designation are available on the Internet at http://www.fws.gov/pacific/sacramento or from the Sacramento Fish and Wildlife
Office at the address and contact numbers above.
FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Sacramento Fish and
Wildlife Office, at the address above (telephone 916/414-6600;
facsimile 916/414-6713).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We will accept written comments and information during this
reopened comment period. We solicit comments on the original proposed
critical habitat designation (70 FR 44301; August 2, 2005) and on our
draft economic analysis of the proposed designation. We will consider
information and recommendations from all interested parties. We are
particularly interested in comments concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat, as provided by section 4 of the Endangered
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.),
including whether the benefits of exclusion outweigh the benefits of
including such area as part of critical habitat;
(2) Specific information on the amount and distribution of
California tiger salamander (CTS) habitat in Sonoma County, and what
habitat is essential to the conservation of this species and why;
(3) Land use designations and current or planned activities in the
subject area and their possible impacts on proposed habitat;
(4) Information on whether, and if so, how many of the State and
local environmental protection measures referenced in the draft
economic analysis were adopted largely as a result of the listing of
the Sonoma County population of the CTS, and how many were either
already in place or enacted for other reasons;
(5) Whether the draft economic analysis identifies all State and
local costs attributable to the proposed critical habitat designation,
and information on any costs that have been inadvertently overlooked;
(6) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and likely regulatory changes
imposed as a result of the designation of critical habitat;
(7) Whether the draft economic analysis correctly assesses the
effect on regional costs associated with any land use controls that may
derive from the designation of critical habitat;
(8) The draft economic analysis indicates potentially
disproportionate impacts to areas within Sonoma County. Based on this
information, we are considering excluding portions of these areas from
the final designation per our discretion under section 4(b)(2) of the
Act. We are specifically seeking comment and additional information on
areas within Sonoma County that could be potentially be
disproportionately impacted by a CTS critical habitat designation;
(9) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, and in particular, any
impacts on small entities or families; does our conclusion that the
proposed designation of critical habitat will not result in a
disproportionate effect to small businesses warrant further
consideration, and other information that would indicate that the
designation of critical habitat would or would not have any impacts on
small entities or families;
(10) Whether the draft economic analysis appropriately identifies
all costs that could result from the designation; and
(11) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concern and comments.
An area may be excluded from critical habitat if it is determined
that the benefits of such exclusion outweigh the
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benefits of including a particular area as critical habitat, unless the
failure to designate such area as critical habitat will result in the
extinction of the species. We may exclude an area from designated
critical habitat based on economic impacts, national security, or any
other relevant impact.
All previous comments and information submitted during the initial
comment period on the August 2, 2005, proposed rule (70 FR 44301) need
not be resubmitted. If you wish to comment, you may submit your
comments and materials concerning the draft economic analysis and the
proposed rule by any one of several methods (see ADDRESSES section).
Our final designation of critical habitat will take into consideration
all comments and any additional information we received during both
comment periods. On the basis of public comment on this analysis and on
the critical habitat proposal, and the final economic analysis, we may
during the development of our final determination find that areas
proposed are not essential, are appropriate for exclusion under section
4(b)(2) of the Act, or not appropriate for exclusion.
Please submit electronic comments in an ASCII file format and avoid
the use of special characters and encryption. Please also include
``Attn: RIN 1018-AU23'' and your name and return address in your e-mail
message. If you do not receive a confirmation from the system that we
have received your e-mail message, please contact the person listed
under For Further Information Contact.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. In some circumstances, we would withhold
from the rulemaking record a respondent's identity, as allowable by
law. If you wish for us to withhold your name and/or address, you must
state this prominently at the beginning of your comments. However, we
will not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
Comments and materials received, as well as supporting
documentation used in preparation of the proposal to designate critical
habitat, will be available for inspection, by appointment, during
normal business hours, at the Sacramento Fish and Wildlife Office at
the address listed under ADDRESSES.
Copies of the proposed rule and draft economic analysis are
available on the Internet at: http://www.fws.gov/pacific/sacramento/.
You may also obtain copies of the proposed rule and economic analysis
from the Sacramento Fish and Wildlife Office (see ADDRESSES), or by
calling 916/414-6600.
Background
We published a proposed rule to designate critical habitat for a
distinct population segment of the CTS in Sonoma County on August 2,
2005 (70 FR 44301). The proposed critical habitat totaled approximately
74,223 acres (ac) (30,037 hectares (ha)) in Sonoma County. This
proposed critical habitat does not include areas within Santa Barbara
County or the Central Valley or Central Coast of California. A final
critical habitat designation for the distinct population segment of the
CTS in Santa Barbara County was published on November 24, 2004 (69 FR
68568), and a final critical habitat designation for the Central
population of the CTS was published on August 23, 2005 (70 FR 49380).
Per settlement agreement, we will submit for publication in the Federal
Register a final critical habitat designation for the CTS in Sonoma
County on or before December 1, 2005.
Critical habitat is defined in section 3 of the Act as 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 essential to the conservation of the species and
that may require special management considerations or protection, and
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 species. If the proposed rule is made
final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting areas designated as critical habitat must consult with us on
the effects of their proposed actions, pursuant to section 7(a)(2) of
the Act.
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic or any other
relevant impact of specifying any particular area as critical habitat.
Based on the August 2, 2005, proposed rule to designate critical
habitat for the CTS in Sonoma County, we have prepared a draft economic
analysis of the proposed critical habitat designation.
The current draft economic analysis estimates the foreseeable
economic impacts of the proposed critical habitat designation on
government agencies and private businesses and individuals. The
economic analysis identifies potential costs of approximately $336
million over a 20-year period or approximately $17 million per year as
a result of the proposed critical habitat designation, including those
costs coextensive with listing. The analysis measures lost economic
efficiency associated with residential and commercial development, and
public projects and activities, such as economic impacts on
transportation projects, the energy industry, and Federal lands.
However, no Federal lands are within the proposed critical habitat
boundary.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of the CTS in Sonoma
County, including costs associated with sections 4, 7, and 10 of the
Act, and including those attributable to designating critical habitat.
It further considers the economic effects of protective measures taken
as a result of other Federal, State, and local laws that aid habitat
conservation for the CTS in essential habitat areas. The draft analysis
considers both economic efficiency and distributional effects. In the
case of habitat conservation, efficiency effects generally reflect the
``opportunity costs'' associated with the commitment of resources to
comply with habitat protection measures (e.g., lost economic
opportunities associated with restrictions on land use). This analysis
also addresses how potential economic impacts are likely to be
distributed, including an assessment of any local or regional impacts
of habitat conservation and the potential effects of conservation
activities on small entities and the energy industry. This information
can be used by decision-makers to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
Finally, this draft analysis looks retrospectively at costs that have
been incurred since the date the species was listed as a threatened
species and considers those costs that may occur in the 20 years
following a designation of critical habitat.
As stated earlier, we solicit data and comments from the public on
this draft economic analysis, as well as on all aspects of the
proposal. We may revise the proposal, or its supporting documents, to
incorporate or address
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new information received during the comment period. In particular, we
may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area as critical habitat, provided such exclusion will not result in
the extinction of the species.
Costs related to conservation activities for the proposed CTS
critical habitat pursuant to sections 4, 7, and 10 of the Act are
estimated to be approximately $336 million from 2005 to 2025. Overall,
the residential and commercial industry is calculated to experience the
highest estimated costs. The draft analysis was conducted at the census
tract level. Of the 57 census tracts that are part of this current
proposal, six are identified as census tracts responsible for over 80%
of the most impacted areas. Annualized impacts of costs attributable to
the proposed critical habitat designation are projected to be
approximately $17 million.
Required Determinations--Amended
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, it is not anticipated to have an annual effect on the economy
of $100 million or more or affect the economy in a material way. Due to
the timeline for publication in the Federal Register, the Office of
Management and Budget (OMB) did not formally review the proposed rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, then the agency will need to consider
alternative regulatory approaches. Since the determination of critical
habitat is a statutory requirement pursuant to the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then
evaluate alternative regulatory approaches, where feasible, when
promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweighs the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
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 effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. In our proposed rule,
we withheld our determination of whether this designation would result
in a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the CTS would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities (e.g., residential and commercial
development). We considered each industry or category individually to
determine if certification is appropriate. In estimating the numbers of
small entities potentially affected, we also considered whether their
activities have any Federal involvement; some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
the designation of critical habitat. Designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies; non-Federal activities are not affected by the
designation.
If this proposed critical habitat designation is made final,
Federal agencies must consult with us if their activities may affect
designated critical habitat. Consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
existing consultation process.
In our draft economic analysis of the proposed critical habitat
designation, we evaluated the potential economic effects on small
business entities resulting from conservation actions related to the
listing of the CTS and proposed designation of its critical habitat. We
determined from our analysis that the small business entities that may
be affected are firms in the new home construction sector. We estimated
the number of affected small businesses and calculated the number of
houses built per small firm. It appears that the annual number of
affected small firms is far less than one in Sonoma County. Note that
if one firm closed in the first year, then this same firm would be
affected in subsequent years. The number of small firms will not
decrease every year. These firms may be affected by activities
associated with the conservation of the CTS, inclusive of activities
associated with listing, recovery, and critical habitat. Critical
habitat is not expected to result in significant small business
impacts. In the development of our final designation, we will explore
potential alternatives to minimize impacts to any affected small
business entities. These alternatives may include the exclusion of all
or portions of the critical habitat units in these counties. As such,
we expect that any final designation of critical habitat for the
distinct population segment of the CTS in Sonoma County.
We do not believe that the designation of critical habitat for the
CTS in Sonoma County will result in a disproportionate effect to small
business entities.
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However, we are seeking comment on potentially excluding areas from the
final critical habitat designation if it is determined that there will
be a substantial and significant impact to small real estate
development businesses in the county.
Critical habitat designation for the CTS is expected to have the
largest impacts on the market for developable land. The proposed
critical habitat designation for CTS occurs in a number of rapidly
growing areas. Regulatory requirements to avoid onsite impacts and
mitigate offsite affect the welfare of both producers and consumers. In
the scenario presented here, mitigation requirements increase the cost
of development, and avoidance requirements are assumed to reduce the
construction of new housing. In this scenario, the proposed critical
habitat designation is expected to impose losses of over $336 million
over the 20-year study period.
The economic impacts of the proposed critical habitat designation
vary widely even with the county. That is, the impacts of designation
are frequently localized. This finding is sensible from an economic
point of view and is consistent with the teachings of urban economics.
Housing prices vary over urban areas, typically declining as the
location of the house becomes more remote. Critical habitat is not
evenly distributed across the landscape, and large impacts may result
if a particular area has a large fraction of developable land in
critical habitat. Some areas have few alternate sites for development,
or have highly rationed housing resulting in high prices. Any of these
factors may cause the cost of critical habitat designation to increase.
The precise spatial scale of the analysis permits identification of
specific locations, or parts of individual critical habitat units, that
result in the largest economic impacts. The maps contained at the end
of the draft economic analysis are instructive in this regard. The maps
identify the census tracts within the counties where the impacts are
predicted to occur.
Please refer to our draft economic analysis of the proposed
critical habitat designation for a more detailed discussion of
potential economic impacts.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is
considered a significant regulatory action under E.O. 12866 because it
raises novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant 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; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.)
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that 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. However, 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) As discussed in the draft economic analysis of the proposed
designation of critical habitat for the CTS in Sonoma County, the
impacts on nonprofits and small governments are expected to be
negligible. There is no record of consultations between the Service and
any of these governments since the distinct population segment of the
CTS in Sonoma County was emergency listed in 2002. It is likely that
small governments involved with developments and infrastructure
projects will be interested parties or involved with projects involving
section 7 consultations for the distinct population segment of the CTS
in Sonoma County within their jurisdictional areas. Any costs
associated with this activity are likely to represent a small portion
of a local government's budget. Consequently, we do not believe that
the designation of critical habitat for the distinct population segment
of the CTS in Sonoma County will significantly or uniquely affect these
small governmental entities. As such, a Small Government Agency Plan is
not required.
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
proposing critical habitat for the Sonoma County population of CTS.
Critical habitat designation does not affect landowner actions that do
not require Federal funding or permits, nor does it preclude
development of habitat conservation programs or issuance of incidental
take permits to permit actions that do require Federal funding or
permits to go forward. In conclusion, the designation of critical
habitat for the Sonoma
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County population of CTS does not pose significant takings
implications.
Author
The primary author of this notice is the staff of the Sacramento
Fish and Wildlife Service.
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: October 14, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-21205 Filed 10-24-05; 8:45 am]
BILLING CODE 4310-55-P