[Federal Register Volume 72, Number 63 (Tuesday, April 3, 2007)]
[Proposed Rules]
[Pages 15857-15859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5743]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI71 and RIN 1018-AI72
Endangered and Threatened Wildlife and Plants; Reopening of
Public Comment Periods for the Proposed Designations of Critical
Habitat for the Coastal California Gnatcatcher and the San Diego Fairy
Shrimp
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rules; reopening of public comment periods.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announce the
reopening of the public comment period on our April 24, 2003, proposed
rule (68 FR 20228) to designate critical habitat for the coastal
California gnatcatcher (Polioptila californica californica) and our
April 22, 2003, proposed rule (68 FR 19888) to designate critical
habitat for the San Diego fairy shrimp (Branchinecta sandiegonensis).
The comment period will provide the public and Federal, State, and
local agencies and Tribes with an opportunity to submit in writing
updated comments and information on these species and associated
habitat, the proposed critical habitat designations, and respective
draft economic analyses. Comments relevant to issues identified for
consideration in the April 22 and April 24, 2003, proposed critical
habitat rules and the April 8, 2004, notice of availability of the
draft economic analyses for these species that were previously
submitted during one of the prior public comment periods need not be
resubmitted as they have already been incorporated into the public
record and will be fully considered in any final decision. Comments
relevant to issues identified in the April 8, 2004, Federal Register
notice (69 FR 18515) reopening the comment period on the proposed
determination of a Distinct Vertebrate Population Segment for the
California gnatcatcher also need not be resubmitted as that
determination will be made separately from the critical habitat
designations for the coastal California gnatcatcher and San Diego fairy
shrimp.
DATES: We will accept comments and information until May 3, 2007. Any
comments received after the closing date may not be considered in the
final decisions on these proposals.
ADDRESSES: If you wish to comment, you may submit your comments and
materials on these proposals to us by any one of the following methods:
1. You may submit written comments and information to Jim Bartel,
Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, CA 92011.
2. You may hand-deliver written comments and information to the
Carlsbad Fish and Wildlife Office at the above address.
3. You may send comments by facsimile to 760-431-5901.
4. You may send comments by electronic mail (e-mail) to
[email protected]. Please include ``Attn: RIN 1018-AI71 and RIN
1018-AI72'' in the subject line of your e-mail and your name and
address in the body of your message. If you do not receive a
confirmation from the system that we have received your message,
contact us directly by telephone at 760-431-9440.
5. You may go to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Comments and materials received, as well as supporting
documentation used in the preparation of these proposed rules, will be
available for public inspection, by appointment, during normal business
hours at the Carlsbad Fish and Wildlife Office at the above address
(telephone 760-431-9440).
Copies of the proposed rule and draft economic analysis for the
coastal California gnatcatcher and San Diego fairy shrimp are available
on the Internet at http://www.fws.gov/Carlsbad. You may also request
copies of these documents by contacting the Carlsbad Fish and Wildlife
Office at the above address.
FOR FURTHER INFORMATION CONTACT: Tannika Engelhard, Branch Chief,
Listing, Carlsbad Fish and Wildlife Office (telephone 760-431-9440).
Persons who use a telecommunications device for the hearing impaired
(TDD) may call the Federal Information Relay Service (FIRS) at 1-800-
877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We are soliciting comments from the public, governmental agencies,
Tribes, the scientific community, industry, or any other interested
parties concerning events that have occurred since the April 2003
publications of the proposed designations of critical habitat for the
coastal California gnatcatcher and San Diego fairy shrimp and the April
2004 publications of the draft economic analyses of the proposed
designations for both species and any new information relevant to the
status of the species and their essential habitats.
With regard to the proposed rule and draft economic analysis for
the coastal California gnatcatcher, we particularly seek comments
concerning:
(1) Land use designations and current or planned activities in the
subject areas and their possible impacts on areas proposed as critical
habitat for the coastal California gnatcatcher, including new
information regarding areas proposed as critical habitat that may have
lost coastal sage scrub as a result of development or other land use;
(2) Approval and issuance of an incidental take permit under
section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended
(Act), for the Orange County Southern Subregion Habitat Conservation
Plan (HCP);
(3) Progress in the development and/or implementation of other
regional HCPs, including the Natural Community Conservation Plan/HCP
for the City of Rancho Palos Verdes in Los Angeles County, CA, and the
Western Riverside County Multiple Species HCP;
(4) Effects of the large wildfires that occurred in October 2003
and more recently on the coastal sage scrub habitat in Ventura, Los
Angeles, Riverside, San Bernardino, and San Diego counties; and
(5) Publication of new biological information regarding the effects
of wildfires from 2003 to the present or other relevant biological
publications addressing the status and recovery of sage scrub habitat
and conservation of the coastal California gnatcatcher.
With regard to the proposed designation of critical habitat for the
San Diego fairy shrimp, we particularly seek comments concerning:
(1) Land use designations and current or planned activities in the
subject areas and their possible impacts on areas proposed as critical
habitat for the San Diego fairy shrimp, including new information
regarding areas proposed as critical habitat that may have lost vernal
pool habitat as a result of development;
(2) Information regarding newly identified vernal pools that were
not
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previously known to support the San Diego fairy shrimp and whether
these areas are essential to the conservation of the species, and why;
and
(3) The October 13, 2006, ruling by the U.S. District Court for the
Southern District of California that enjoined the incidental take
permit for seven vernal pool species (including the San Diego fairy
shrimp) issued to the City of San Diego under the City's Subarea Plan
for the Southwestern San Diego County Multiple Species Conservation
Program (MSCP), and how areas within the boundaries of the City of San
Diego's Subarea Plan of the MSCP that have been proposed for exclusion
from critical habitat for the San Diego fairy shrimp should be
evaluated in light of the Court's decision.
With regard to the proposed designation of critical habitat for
both the coastal California gnatcatcher and the San Diego fairy shrimp,
we particularly seek comments concerning any new information regarding
costs associated with the proposed designations of critical habitat for
these species, and whether the 2004 draft economic analyses made
appropriate assumptions regarding likely regulatory changes, indirect
effects (e.g., property tax losses due to reduced home construction),
opportunity costs, and regional costs associated with land use controls
that could arise from the designation of critical habitat for the
coastal California gnatcatcher and San Diego fairy shrimp.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Background
On October 24, 2000, we published a final rule designating
approximately 513,650 ac (207,890 ha) of land in portions of Los
Angeles, Orange, Riverside, San Bernardino, and San Diego counties as
critical habitat for the coastal California gnatcatcher (65 FR 63680).
A final rule designating approximately 4,025 ac (1,629 ha) of land in
Orange and San Diego counties as critical habitat for the San Diego
fairy shrimp was published in the Federal Register on October 23, 2000
(65 FR 63438). Following the publication of these final rules, several
lawsuits were filed against the Service by multiple parties, including
the Natural Resources Defense Council (NRDC), Building Industry
Association of Southern California, National Association of Home
Builders, Foothill/Eastern Transportation Corridor, and Rancho Mission
Viejo, L.L.C. (NRDC v. U.S. Dept. of Interior, CV-99-2496 (C.D.Cal.,
filed 12/20/00); Building Industry Association of Southern California
et al. v. Norton, CV 01-7028 (D.C.C., filed 1/17/01), and Rancho
Mission Viejo L.L.C. v. Babbitt, CV 01-8412 (D.D.C., filed 12/28/00)),
challenging the critical habitat designations for the coastal
California gnatcatcher and/or San Diego fairy shrimp. On June 11, 2002,
the U.S. District Court for the Central District of California granted
our request for a remand of the coastal California gnatcatcher and San
Diego fairy shrimp critical habitat designations so that we could
reconsider their associated economic analyses. For more information
about the litigation history associated with these critical habitat
designations, please see the Previous Federal Action sections of the
April 24, 2003, proposed rule for the coastal California gnatcatcher
(68 FR 20228) and the April 22, 2003 proposed rule for the San Diego
fairy shrimp (68 FR 19890).
On April 24, 2003, we published a proposed rule in the Federal
Register (68 FR 20228) to designate critical habitat for the coastal
California gnatcatcher on approximately 495,795 acres (ac) (200,595
hectares (ha)) of land in Ventura, Los Angeles, Orange, Riverside, San
Bernardino, and San Diego counties.
The Service published a proposed rule in the April 22, 2003,
edition of the Federal Register (68 FR 19888) to designate critical
habitat for the San Diego fairy shrimp on approximately 6,098 ac (2,468
ha) of land in Orange and San Diego counties.
We accepted public comments on these two proposed rules until June
23, 2003. On April 8, 2004, we published a notice in the Federal
Register announcing the availability of draft economic analyses for the
proposed designations, reopening the public comment periods on our
proposed rules, and announcing the scheduling of public hearings on our
proposed critical habitat designations and draft economic analyses for
the coastal California gnatcatcher and San Diego fairy shrimp. Public
hearings were conducted on April 29, 2004, from 1 to 3 p.m. and from 6
to 8 p.m. in Carlsbad, California. The second public comment period
closed on May 10, 2004. The public comment period for the coastal
California gnatcatcher and San Diego fairy shrimp proposed critical
habitat rules is again reopened, and we will accept comments and
information until May 3, 2007. Any comments received after the closing
date may not be considered in the final decisions on these proposals.
The Service initiated work on the final critical habitat rules for
the coastal California gnatcatcher and the San Diego fairy shrimp, but
due to other priorities we did not finalize the designations. On
February 8, 2007, a motion was filed by the Plaintiffs requesting the
Court to direct us to finalize critical habitat designations for the
coastal California gnatcatcher and San Diego fairy shrimp. We reached
an agreement with the Plaintiffs whereby final designations would be
completed on or before November 2, 2007. This settlement agreement has
been submitted to the Court for approval.
Areas currently designated as critical habitat for the coastal
California gnatcatcher and San Diego fairy shrimp will remain in place
until such time as new final regulations for these species become
effective.
Critical habitat receives protection from destruction or adverse
modification through required consultation under section 7 of the Act,
with regard to actions carried out, funded, or authorized by a Federal
agency. Section 4(b)(2) of the Act requires that we designate or revise
critical habitat on the basis of the best scientific and commercial
data available, after taking into consideration economic, national
security, and any other relevant impacts of specifying any particular
area as critical habitat. The draft economic analysis for the proposed
rule to designate critical habitat for the coastal California
gnatcatcher estimated that the proposed designation may result in a
potential economic cost, resulting from section 7 of the Act, of
approximately $915 million through the year 2025, with an estimated
annualized cost of $114 million. In the development of a final rule, we
will evaluate these potential economic impacts and may exclude specific
areas from the final designation on the basis of economics,
conservation programs and partnerships, or other factors pursuant to
section 4(b)(2) of the Act. Any such exclusion would result in a
reduction of the potential economic impacts of this designation.
Section 318 of the National Defense Authorization Act for FY04
(Pub. L. 108-136), amended the Act by adding a new section 4(a)(3)(B)
that prohibits the Service from designating as critical habitat any
lands or other geographical areas owned or controlled by the
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Department of Defense, or designated for its use, that are subject to
an Integrated Natural Resources Management Plan prepared under section
101 of the Sikes Act Improvement Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is being proposed for designation. In the
development of the final designation of critical habitat each species,
the areas proposed will be reviewed to determine if the application of
section 4(a)(3)(B) of the Act may be appropriate.
We also prepared a draft economic analysis of the April 22, 2003,
proposed rule to designate critical habitat for the San Diego fairy
shrimp. The draft analysis of this proposed designation estimates that
potential economic costs associated with section 7 of the Act range up
to $54.6 million over the next 20 years, with a potential annualized
impact of $7.2 million.
We are reopening the comment period to allow all interested parties
to comment simultaneously on the proposed rules for the coastal
California gnatcatcher and San Diego fairy shrimp and the draft
economic analyses and to provide new information regarding the species
and their essential habitats and events that have occurred since the
publication of the proposed rules in April 2003 and release of the
draft economic analyses in April 2004.
References Cited
A complete list of all references used in the development of the
proposed critical habitat designations for the coastal California
gnatcatcher and San Diego fairy shrimp is available upon request from
the Carlsbad Fish and Wildlife Office (see ADDRESSES section).
Author
The primary authors of this notice are the staff of the Carlsbad
Fish and Wildlife Office (see ADDRESSES section).
Authority: The authority for this action is the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).
Dated: March 22, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-5743 Filed 4-2-07; 8:45 am]
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