[Federal Register: July 18, 2005 (Volume 70, Number 136)]
[Proposed Rules]
[Page 41183-41186]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy05-22]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT68
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Central Population of California Tiger
Salamander
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 Central population of the California tiger salamander and the
availability of the draft economic analysis of the proposed designation
of critical habitat. The draft economic analysis identifies potential
costs of approximately $367 million over a 20-year period or $32.8
million per year as a result of the 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 August 3, 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 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
office, at the above address, or fax your comments to 916/414-6710; or
3. You may send comments by electronic mail (e-mail) to:
fw1Central_cts_pch@fws.gov. 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 you
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://sacramento.fws.gov/
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 916/414-6710).
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 (69 FR 48570, August 10, 2004) 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, 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 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 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 land use controls that derive
from the designation of critical habitat;
(8) The draft economic analysis indicated potentially
disproportionate impacts to areas within Alameda, Contra Costa, and
Monterey Counties. 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 along with additional information concerning our final
determination for these three areas along with any other areas with
potentially disproportionate impacts.
(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 is there 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.
[[Page 41184]]
(12) We are also considering excluding, and are requesting comments
on the benefits of excluding or including in critical habitat the
following areas from the final designation:
(a) The areas in east Contra Costa County covered by the Draft East
Contra Costa Habitat Conservation Plan. This document will be out for
public review soon and will be available on the Internet at http://sacramento.fws.gov
(Central Valley Region Units 14, 15, 16 and portions
of 17);
(b) The proposed critical habitat within the San Luis Refuge
National Wildlife Complex (Central Valley Region Units 12 and 13) and
the San Francisco Bay National Wildlife Complex (East Bay Region Unit
4); and
(c) The subunits within the Fort Hunter Liggett Army Installation
(Central Coast Region Unit 5a and 5b).
An area may be excluded from critical habitat if it is determined
that the benefits of such exclusion outweigh the 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 for the August 10, 2004 proposed rule need not be
resubmitted. Refer to the ADDRESSES section for information on how to
submit written comments and information. Our final determination on the
proposed critical habitat will take into consideration all comments and
any additional information we receive.
Please submit electronic comments in an ASCII file format and avoid
the use of special characters and encryption. Please also include
``Attn: RIN 1018-AT68'' 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 draft economic analysis are available on the Internet
at: http://sacramento.fws.gov/. You may obtain copies of the proposed
rule from the above address, by calling 916/414-6600.
Background
We published a proposed rule to designate critical habitat on
August 10, 2004 (69 FR 48570). The proposed critical habitat totaling
approximately 382,666 acres (ac) (154,860 ha (ha)) in 4 geographic
regions in 47 units, is in the following 20 counties in central
California: Alameda, Amador, Calaveras, Contra Costa, Fresno, Kern,
Kings, Madera, Mariposa, Merced, Monterey, Sacramento, San Benito, San
Joaquin, San Luis Obispo, Santa Clara, Solano, Stanislaus, Tulare, and
Yolo. This proposed critical habitat does not include areas within
Santa Barbara or Sonoma Counties. A final critical habitat designation
for the California tiger salamander in Santa Barbara County was
published on November 24, 2004 (69 FR 68568). We are also currently in
the process of completing a proposed designation for the California
tiger salamander in Sonoma County which will be published in the
Federal Register at a future date. 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 10, 2004, proposed rule to designate critical
habitat for the Central population of California tiger salamander, 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 $367
million over a 20-year period or $32.8 million per year as a result of
the designation of critical habitat, including those costs coextensive
with listing. The analysis measures lost economic efficiency associated
with residential and commercial development, public projects and
activities, such as economic impacts on transportation projects, the
energy industry, University of California, Merced, and public lands
such as those managed by the Department of Defense, Bureau of Land
Management, Fish and Wildlife Service, and Bureau of Indian Affairs.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of the Central
population of California tiger salamander 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 California
tiger salamander in essential habitat areas. The 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
[[Page 41185]]
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 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 the
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 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
California tiger salamander critical habitat pursuant to sections 4, 7,
and 10 of the Act are estimated to be approximately $283 to 367 million
from 2005 to 2025. Overall, the residential and commercial industry is
calculated to experience the highest of estimated costs. Of the 20
counties that are part of this current proposal, the four most impacted
counties are Alameda, Contra Costa, Monterey and Santa Clara.
Annualized impacts of costs attributable to the designation of critical
habitat are projected to be between approximately $32.8 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) has not formally reviewed the proposed
rule.
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 this proposed designation of critical habitat for
the California tiger salamander 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 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 California tiger salamander 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, the number of houses built per small firm was calculated,
and it appears that less than two small firms maybe be affected in
Sacramento County, and one, or less than one, each in Contra Costa,
Alameda, Monterey, Fresno, Santa Clara, and San Benito counties. These
firms may be affected by activities associated with the conservation of
the Central population of California tiger salamander, inclusive of
activities associated with listing, recovery, and critical habitat.
Critical habitat is not expected to result in significant small
business impacts. Thus, in the development of our final rule, we will
explore potential alternatives to minimize impacts to these affected
small business entities. These alternatives may include the exclusion
of all or portions of critical habitat units in these counties. As
such, we expect that the final designation of critical habitat for the
Central population of California tiger salamander will not result in a
significant impact on small business entities.
Therefore, we believe that the designation for the Central
population of California tiger salamander will not result in a
disproportionate effect to these small business entities. 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 particular counties.
We determined that the critical habitat designation is expected to
have the largest impacts on the market for
[[Page 41186]]
developable land. The proposed critical habitat designation for
California tiger salamander occurs in a number of rapidly growing
communities. Regulatory requirements to avoid onsite impacts and
mitigate offsite affect the welfare of both producers and consumers.
Two scenarios are considered. In the first scenario, avoidance
requirements are assumed to reduce the stock of new housing. Given the
importance of regulation of housing development even in the absence of
critical habitat, this scenario is taken as the base case. In this
scenario, critical habitat is expected to impose losses of over $367
million over the 20-year study period. An alternative scenario is
constructed in which all avoidance requirements are accommodated
through densification. In this case, welfare losses from critical
habitat are $283 million over the 20-year study period.
These economic impacts of critical habitat designation vary widely
among the 20 affected counties, and even within counties. The counties
most impacted by the critical habitat designation include: Alameda
($131 million), Contra Costa ($91 million), Monterey ($67 million),
Santa Clara ($23 million), and San Benito ($23 million). Further,
economic impacts are unevenly distributed within counties. The analysis
was conducted at the census tract level, resulting in a high degree of
spatial precision.
Please refer to our draft economic analysis of this 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 Central population of CTS, the
impacts on non-profits and small governments are expected to be
negligible and are not examined in this analysis. There is no record of
consultations between the Service and any of these governments since
the Central population of CTS was listed in 2004. 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 Central population of CTS within their
jurisdictional areas. Any costs associated with this activity are
likely to represent a small portion of a city's budget. Consequently,
we do not believe that the designation of critical habitat for the
Central population of CTS 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 Central 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
Central 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 Office.
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: July 13, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-14119 Filed 7-14-05; 1:13 pm]
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