[Federal Register Volume 71, Number 108 (Tuesday, June 6, 2006)]
[Proposed Rules]
[Pages 32496-32503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8645]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU33
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Spikedace and Loach Minnow
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of public comment period,
notice of availability of draft economic analysis and draft
environmental assessment, notice of public hearings, and updated legal
descriptions for critical habitat units.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
availability of the draft economic analysis and draft environmental
assessment for the proposal to designate critical habitat for the
spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) under the
Endangered Species
[[Page 32497]]
Act of 1973, as amended (Act). The draft economic analysis finds that
costs associated with spikedace and loachminnow conservation activities
are forecast to range from $25.2 million to $100.3 million in constant
dollars over the next 20 years. Adjusted for possible inflation the
costs would range from $19.0 million to $83.6 million over 20 years, or
$1.3 million to $5.7 million annually, using a three percent discount;
or $13.9 million to $69.2 million over 20 years, or $1.4 million to
$6.7 million over 20 years annually, using a seven percent discount
rate.
We are also reopening the public comment period for the proposal to
designate critical habitat to allow all interested parties an
opportunity to comment on and request changes to the proposed critical
habitat designation, as well as the associated draft economic analysis
and draft environmental assessment. In addition, we are proposing
corrected legal descriptions for some of the critical habitat units.
Comments previously submitted on the December 20, 2005, proposed rule
need not be resubmitted as they have been incorporated into the public
record and will be fully considered in preparation of the final rule.
We will hold two public informational sessions and hearings (see DATES
and ADDRESSES sections).
DATES: Comments must be submitted directly to the Service (see
ADDRESSES) on or before July 6, 2006, or at the public hearings.
We will hold a public informational session from 3 p.m. to 4:30
p.m., followed by a public hearing from 6:30 p.m. to 8 p.m., on each of
the following dates:
1. June 13, 2006: Camp Verde, Arizona.
2. June 20, 2006: Silver City, New Mexico.
ADDRESSES:
Information Sessions/Hearings
The public informational sessions and hearings will be held at the
following locations:
1. Camp Verde, AZ: Cliff Castle Casino Hotel & Conference Center,
Tri-City Room, 555 Middle Verde Road.
2. Silver City, NM: Flame Convention Center, 2800 Pinos Altos Road.
For information on requesting reasonable accommodations to attend a
session, see ``Public Comments Solicited'' under SUPPLEMENTARY
INFORMATION.
Comments
If you wish to comment on the proposed rule, draft economic
analysis, or draft environmental assessment, you may submit your
comments and materials identified by RIN 1018-AU33, by any of the
following methods:
(1) E-mail: [email protected]. Include RIN 1018-AU33 in the
subject line. Please submit electronic comments in ASCII file format
and avoid the use of special characters or any form of encryption.
Please also include your name and return address in the body of your
message. If you do not receive a confirmation from the system that we
have received your Internet message, contact us directly by calling our
Arizona Ecological Services Field Office at (602) 242-0210.
(2) Fax: (602) 242-2513.
(3) Mail or hand delivery/courier: Steve Spangle, Field Supervisor,
Arizona Ecological Services Field Office, 2321 W. Royal Palm Road,
Suite 103, Phoenix, AZ 85021.
(4) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
You may obtain copies of the proposed rule, draft economic
analysis, and draft environmental assessment by mail or by visiting our
Web site at http://arizonaes.fws.gov/. You may review comments and
materials received and review supporting documentation used in
preparation of this proposed rule by appointment, during normal
business hours, at the Arizona Ecological Services Field Office (see
ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor,
Arizona Ecological Services Field Office (telephone, 602-242-0210;
facsimile, 602-242-2513).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning the proposed rule, the draft economic analysis, and
the draft environmental assessment. Based on public comment on the
proposed rule, the draft economic analysis, and the environmental
assessment, as well as on the conclusions of the final economic
analysis and environmental assessment, we may find during the
development of our final determination that some areas proposed do not
contain the features that are essential to the conservation of the
species, are appropriate for exclusion under section 4(b)(2) of the
Act, or are not appropriate for exclusion. We particularly seek
comments concerning:
(1) The reasons 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 it is prudent to designate critical habitat;
(2) Specific information on the distribution of the spikedace and
loach minnow, the amount and distribution of the species' habitat, and
which habitat contains the necessary features (primary constituent
elements) essential to the conservation of these species and why;
(3) Land-use designations and current or planned activities in the
subject area and their possible impacts on these species or proposed
critical habitat;
(4) 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 concerns and comments;
(5) Any foreseeable environmental impacts directly or indirectly
resulting from the proposed designation of critical habitat;
(6) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, and in particular, any
impacts on small entities or families;
(7) Whether the economic analysis identifies all State and local
costs, and if not, what other costs should be included;
(8) Whether the economic analysis makes appropriate assumptions
regarding current practices and likely regulatory changes imposed as a
result of the designation of critical habitat;
(9) Whether the economic analysis correctly assesses the effect on
regional costs associated with land- and water-use controls that derive
from the designation;
(10) Whether the critical habitat designation will result in
disproportionate economic impacts to specific areas that should be
evaluated for possible exclusion from the final designation;
(11) Whether the economic analysis appropriately identifies all
costs that could result from the designation or coextensively from the
listing of these species in 1986;
(12) Based on the information in the draft economic analysis, we
are considering excluding the Verde River Unit based on
disproportionate costs from the final designation per our discretion
under section 4(b)(2) of the Act. We are specifically seeking
[[Page 32498]]
comment along with additional information on the estimated costs, how
these estimated costs are distributed within the Verde River Unit, and
whether we should exclude all or a portion of the Verde River Unit
based on disproportionate costs from the final designation per our
discretion under section 4(b)(2) of the Act; and
(13) Whether the benefit of exclusion in any particular area
outweigh the benefits of inclusion under Section 4(b)(2) of the Act.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. We will not consider anonymous comments and we will
make all comments available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the Arizona
Ecological Services Field Office (see ADDRESSES).
All previous comments and information submitted during the initial
comment period on the proposed rule need not be resubmitted. If you
wish to comment, you may submit your comments and materials concerning
this proposal by any one of several methods (see ADDRESSES). Our final
designation of critical habitat for the spikedace and loach minnow will
take into consideration all comments and any additional information
received during both comment periods.
Persons needing reasonable accommodations in order to attend and
participate in a public hearing should contact the Field Supervisor,
Arizona Ecological Services Field Office, at the address or phone
number listed in the ADDRESSES and FOR FURTHER INFORMATION CONTACT
sections as soon as possible. In order to allow sufficient time to
process requests, please call no later than one week before the
hearing. Information regarding this proposal is available in
alternative formats upon request.
Background
On December 20, 2005, we proposed to designate critical habitat for
spikedace and loach minnow of approximately 633 stream miles (mi)
(1018.7 stream kilometers (km)) of critical habitat, which includes
various stream segments and their associated riparian areas, including
the stream at bankfull width and a 300-foot buffer on either side of
the stream banks (70 FR 75546). The proposed designation includes
Federal, State, Tribal, and private lands in Arizona and New Mexico.
Critical habitat identifies specific areas containing features
essential to the conservation of a listed species and that may require
special management considerations or protection. If the proposed
critical habitat designation is finalized, section 7(a)(2) of the Act
would require that Federal agencies ensure that actions they fund,
authorize, or carry out are not likely to result in the destruction or
adverse modification of critical habitat.
Section 4 of the Act requires that we consider economic and other
relevant impacts prior to making a final decision on what areas to
designate as critical habitat. 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.
The draft economic analysis considers and attempts to quantify the
potential economic effects of efforts to protect the spikedace and
loach minnow and their habitat, collectively referred to as ``spikedace
and loach minnow conservation activities,'' in the proposed critical
habitat designation, as well as the economic effects of protective
measures taken as a result of the listing or other Federal, State, and
local laws that aid habitat conservation in the areas proposed for
designation. In the case of habitat conservation, these costs would
reflect the costs associated with the commitment of resources to comply
with habitat protection measures. The analysis also addresses how
potential economic impacts are likely to be distributed.
We did not propose Bear Creek, a tributary of the Gila River in New
Mexico, as critical habitat because there had been no information to
indicate this area was occupied by either species. However, we have
since received information to indicate this area is occupied by loach
minnow. Due to our tight timeframe for completion of the final rule and
associated documents we are not able to consider inclusion of Bear
Creek at this time. However, if the critical habitat designation is
amended in the future we will consider inclusion of this area at that
time.
Corrected Coordinates for Proposed Units of Critical Habitat
Below we provide corrected legal descriptions for the spikedace and
loach minnow proposed critical habitat designation. Following the
publication of the proposed rule on December 20, 2005, and in part
through comments we received during the subsequent comment period, we
determined that some of the critical habitat units were incorrectly
described. In particular, in Table 2, the column headings for Arizona
and New Mexico were inadvertently switched. We have since corrected the
descriptions and tables to accurately reflect what we are proposing as
critical habitat, and we provide the corrected descriptions for all
critical habitat units below. Table 1 below provides a corrected
version of Table 2 from the December 20, 2005, proposed rule (70 FR
75546) with approximate distances by major landowner type. Corrected
Geographic Information System (GIS) layers are available at http://criticalhabitat.fws.gov/.
Table 1.--Approximate Critical Habitat in Stream Kilometers and Miles
[7 River Units]
----------------------------------------------------------------------------------------------------------------
New Mexico km
Land owner (mi) Arizona km (mi) Total km (mi)
----------------------------------------------------------------------------------------------------------------
Federal.......................................... 167.71 (269.90) 197.99 (318.63) 365.7 (588.53)
Tribal........................................... 0.0 (0.0) 33.00 (53.11) 33.00 (53.11)
State............................................ 1.32 (2.12) 8.32 (13.39) 9.64 (15.51)
County........................................... 0.0 (0.0) 0.0 (0.0) 0.0 (0.0)
Private.......................................... 89.73 (144.40) 134.44 (216.36) 224.17 (360.76)
��������������������������������������������������
Total........................................ 258.75 (416.42) 373.75(601.49) 632.51 (1017.91)
----------------------------------------------------------------------------------------------------------------
[[Page 32499]]
No additional mileage was incorporated into the proposed
designation through the corrections provided in Table 1. Mileage was
reduced by approximately 0.51 mi (0.82 km) for Eagle Creek after
correcting for a mapping error in the original proposal. Mileage was
additionally modified for East Fork Black River and North Fork East
Fork Black River due to a change in our determination of the confluence
points of these two streams. Mileage that was previously attributed to
North Fork East Fork Black River is now encompassed in the mileage for
East Fork Black River. The overall mileage for these two streams
remained the same. The majority of the changes correct errors in the
Township, Range, and section descriptions provided for each proposed
critical habitat unit.
All legal descriptions for New Mexico and Arizona are based on the
Public Lands Survey System (PLSS). Within this system, all coordinates
reported for New Mexico are in the New Mexico Principal Meridian
(NMPM), while those in Arizona are in the Gila and Salt River Meridian
(GSRM). All mileage calculations were performed using GIS.
Required Determinations--Amended
This revised proposed rule affirms the information contained in the
December 20, 2005, proposed rule (70 FR 75546) concerning Executive
Orders (EO) 13132 and EO 12988; the Paperwork Reduction Act; the
National Environmental Policy Act; and the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951). Based on the draft
economic analysis, we are amending our required determinations, as
provided below, concerning EO 12866 and the Regulatory Flexibility Act;
EO 13211 and 12630; and the Unfunded Mandates Reform Act.
Regulatory Planning and Review
In accordance with EO 12866, this document is a significant rule
because it may raise novel legal and policy issues. However, based on
our draft economic analysis, it is not anticipated that the proposed
designation of critical habitat for the spikedace and loach minnow
would result in 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 or
accompanying economic analysis.
Further, EO 12866 directs Federal Agencies promulgating regulations
to evaluate regulatory alternatives (OMB, Circular A-4, September 17,
2003). Pursuant to Circular A-4, once it has been determined that the
Federal regulatory action is appropriate, the agency will need to
consider alternative regulatory approaches. Since the determination of
critical habitat is a statutory requirement pursuant to the Act, 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 under 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, provided that the benefits of such
exclusion outweigh 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 (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)) (SBREFA), 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. Based upon our draft
economic analysis of the proposed designation, we provide our factual
basis for determining that this rule will not result in a significant
economic impact on a substantial number of small entities. This
determination is subject to revision based on comments received as part
of the final rulemaking.
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 spikedace and loach minnow would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities (e.g., water management
and use, livestock grazing, residential and related development,
spikedace- and loach minnow-specific management activities, recreation
activities, fire management activities, mining, and transportation). 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.
Our economic analysis of this proposed designation evaluated the
potential economic effects on small business entities and small
governments resulting from conservation actions related to the listing
of this species and proposed designation of its critical habitat. We
evaluated small business entities in nine categories: water management
and use, livestock grazing activities, mining operations, spikedace
[[Page 32500]]
and loach minnow-specific management activities, recreation,
residential and commercial development, Tribal activities,
transportation activities, and fire management activities. Based on our
analysis, impacts associated with small entities are anticipated to
occur to water management and use, livestock grazing, residential and
commercial development, Tribal businesses, transportation, and fire
management. It should be noted that the majority of Tribal lands are
under consideration for exclusion at this time. The following is a
summary of the information contained in the draft economic analysis:
(a) Water Management and Use Related to Agricultural Production
According to the draft economic analysis, spikedace and loach
minnow conservation activities have not impacted private crop
production since the listing of the species in 1986. However, because
agricultural water use comprises 98 percent of surface water use and 81
percent of groundwater use in counties that contain proposed critical
habitat, it appears most likely that any additional water supplies
needed for the species would potentially come from agriculture. The
economic analysis estimates that only 810 acres of cropland are
included within proposed critical habitat, and only 6,310 acres of
cropland are in the vicinity of critical habitat. The average small
farm includes 4,600 acres, and farms vary between 1,300 and 8,000
acres. Based on the fact that at most 9,000 acres of cropland are
involved, and small farms vary in size, we believe that there are not
many farms located along the streams proposed for the designation.
Additionally, under the assumption that all farms are small (1,884
small business farming operations across five affected counties), there
would be well less than one percent of small farm businesses impacted
by this proposed designation. As a result of this information, we have
determined that this proposed designation will not have an effect on a
substantial number of small business farming operations.
(b) Livestock Grazing Activities
Ranching operations that hold grazing allotment permits are
anticipated to be impacted by conservation activities for the spikedace
and loach minnow. The costs assumed to be incurred by livestock
operations are primarily due to anticipated installation and
maintenance of riparian fencing. The economic analysis concluded that
approximately 76 ranches--or 4.7 percent of ranches in affected
counties that contain proposed critical habitat, or 1 percent of
ranches in New Mexico and Arizona--could be impacted by conservation
activities. Annual costs to each of these 76 ranching operations may be
between $390 and $9,200 per ranch. Average revenues of a ranch in the
proposed critical habitat region are $133,000, or between 0.3 and 7
percent of a ranch's estimated average revenue. Approximately 94
percent of beef cattle ranching and farming operations in counties
containing spikedace and loach minnow critical habitat are small
businesses; thus approximately 72 small ranching operations may
experience a reduction in revenues. Because only 1 percent of ranches
in New Mexico and Arizona, or 4.7 percent of ranches, in affected
counties are estimated to be impacted by this proposal, we have
determined that this proposed designation will not have an effect on a
substantial number of small business ranching operations. From this
analysis, we also have determined that this proposed designation would
also not result in a significant effect to the annual sales of these
small businesses impacted by this proposed designation because the
above analysis has determined that annual costs may represent between
0.3 and 7 percent of a ranch's estimated average revenue.
(c) Residential and Commercial Development
The draft economic analysis concludes that the most likely location
for development activities within the proposed critical habitat
designation is within the Verde River Complex, which contains a large
amount of private land, has a large population, and is projected to
have substantial human population growth over the next 20 years. No
North American Industry Classification System (NAICS) code exists for
landowners, and the Small Business Administration does not provide a
definition of a small landowner. However, recognizing that it is
possible that some of the landowners may be small businesses, this
analysis provides information concerning the number of landowners
potentially affected and the size of the impact on those owners. The
draft economic analysis (section 7) estimates that 1,646 housing units
could be built on the approximately 2,880 privately owned acres within
proposed critical habitat over the next 20 years. Impacts to developers
are estimated to include fencing costs, scientific studies, surveying
and monitoring requirements, and possibly off-setting mitigation
(habitat set-aside). Costs are estimated to range from $3.1 million to
$4.8 million per large development, or $3,900 to $5,900 per housing
unit ($190 to $300 annually, if costs are distributed evenly over 20
years). Actual conservation requirements undertaken by an individual
landowner will depend on how much of a parcel crosses proposed critical
habitat. It is important to note that it is likely that some or all
housing subdivisions may be developed by large corporations which do
not qualify as small businesses under RFA/SBRFA. Furthermore, because
there is no loss in housing units estimated, there would likely not be
any impact to small businesses that are residential housing sub-
contractors. In addition, individual single-family home development has
not historically been subject to consultation or habitat conservation
requirements for the spikedace and loach minnow in Arizona or New
Mexico, although consultation could be required if Federal permits from
the Army Corps of Engineers, Environmental Protection Agency, or
Federal Emergency Management Agency are required.
Because individual single-family home development has not
historically been subject to consultation or habitat conservation
requirements as described above, the probability that single-family
home development will involve many larger businesses, as opposed to
small businesses, and because the impacts will not reduce the number of
housing units, we have determined that this proposed designation will
not have an effect on a substantial number of small businesses that are
part of residential and commercial development. From this analysis, we
also have determined that this proposed designation would also not
result in a significant effect to the annual sales of these small
businesses impacted by this proposed designation. This is because of
the above analysis which has determined that each housing unit would
bear at most a cost of $190 to $300 annually, if costs are distributed
evenly over 20 years.
(d) Tribal Businesses
The proposed critical habitat development includes lands of the
Yavapai-Apache Nation (1.6 km (1 mi) of tributary proposed as critical
habitat), San Carlos Apache Tribe (17.2 km (27.7 mi) of tributary
proposed as critical habitat), and White Mountain Apache Tribe (12.5 km
(20.1 mi) of tributary proposed as critical habitat). The Tribes have
expressed concerns that critical habitat on their lands will have a
disproportionate impact on their ability to use resources on their
sovereign lands and to successfully achieve economic self-sufficiency.
However, Tribal governments are not classified as small
[[Page 32501]]
businesses under RFA/SBRFA, whereas Tribal corporations may qualify as
small businesses under RFA/SBRFA. The draft economic analysis concluded
that future economic costs of implementing spikedace and loach minnow
conservation efforts on Tribal lands could include administrative costs
of consultation, surveys and monitoring, modifications to grazing, fire
management, and recreation activities, and potential project
modifications to grazing, fire management, and recreation activities,
and potential project modifications to restoration activities. Impacts
in each of these areas could affect the Tribes' revenues and employment
in the future; however, many of these impacts may not fall on Tribal
corporations, as opposed to the Tribal governments in question. It
should be noted that the lands of both the White Mountain Apache Tribe
and the San Carlos Apache Tribe are proposed for exclusion from the
critical habitat designation in the proposed rule. Because both White
Mountain Apache Tribe and the San Carlos Apache Tribe are proposed for
exclusion from the critical habitat designation in the proposed rule
and only 1.6 km (1 mi) of stream tributary is proposed as critical
habitat on Yavapai-Apache Nation, we have determined this proposed
designation will not have an effect on a substantial number of small
businesses on Tribal lands.
(e) Recreation
Areas currently stocked with non-native rainbow trout include the
Camp Verde area of the Verde River in Complex 1 and East Fork Gila
River in complex 5. The future impact of proposed critical habitat on
the stocking regimes in these reaches is unknown, as is the reduction
in fishing activity that would occur if stocking is curtailed. Further,
it is unknown whether nonnative fish stocking may be replaced with
catchable native fish stocking (e.g. Apache trout). Thus, the analysis
in the economic analysis estimates the value of angler days at risk if
sportfish stocking were discontinued on these reaches as part of the
high-end estimates. Angling trips are valued at approximately $8.6
million over 20 years (or $816,000 annually), assuming a discount rate
of 7 percent. It should be noted that because State fish managers
typically identify alternative sites for stocked fish when areas are
closed to stocking, these angler days are likely to be redistributed to
other areas rather than lost altogether. Thus, the high-end estimate
does not consider the possibility that rather than not fishing at all,
recreators will visit alternative, less desirable fishing sites.
Existing models of angler behavior in these areas were not available to
refine this estimate.
The two stream reaches where impacts on recreation are anticipated
are located in Yavapai County, Arizona, and Catron County, New Mexico.
If, as in the low-end estimate of impacts, angler trips are not lost,
but instead are redistributed to other streams, then regional impacts
on small businesses are likely to be minimal. If, as in the high-end
estimate of impacts, angler trips to the two stream reaches that
currently stock nonnative fish are not undertaken, localized impacts on
anglers and, in turn, small businesses that rely on fishing activities
could occur. These impacts would be spread across a variety of
industries, including food and beverage stores, food service and
drinking places, accommodations, transportation, and sporting goods.
These industries generate approximately $829 million in total annual
sales for these two counties. The high-end estimate of annual loss of
$485,000 in trip expenditures would therefore represent a loss of
approximately 0.06 percent of annual revenues for these businesses.
We have determined that this proposed designation will not have an
effect on a substantial number of small businesses that may be impacted
from lost recreation because these angler days are likely to be
redistributed to other areas rather than lost altogether. From this
analysis, we also have determined that this proposed designation would
not result in a significant effect to the annual sales of these small
businesses impacted by this proposed designation because any potential
impact to small businesses from lost anglers not fishing in an area is
likely to be redistributed to other areas and, if they are not
redistributed, then they would represent a loss of approximately 0.06
percent of annual revenues for these businesses.
E.O. 13211
On May 18, 2001, the President issued 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 due to its potentially
raising novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Appendix B
of the draft economic analysis provides a discussion and analysis of
this determination. The OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared without the regulatory
action under consideration. The draft economic analysis finds that none
of these criteria are relevant to this analysis; thus, energy-related
impacts associated with spikedace and loach minnow conservation
activities within proposed critical habitat are not expected.
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
the following two exceptions: It excludes ``a condition of federal
assistance'' and ``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
[[Page 32502]]
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, or permits, or that 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) The draft economic analysis discusses potential impacts of
critical habitat designation for the spikedace and loach minnow on
water management activities, livestock grazing, Tribes, residential and
commercial development activities, recreation activities, fire
management activities, mining, and transportation activities. The
analysis estimates that annual costs of the rule could range from $25.2
million to $100.3 million in constant dollars over 20 years. Impacts
are largely anticipated to affect water operators and Federal and State
agencies, with some effects on livestock grazing operations,
residential and commercial development, and transportation. Impacts on
small governments are not anticipated, or they are anticipated to be
passed through to consumers. For example, costs to water operations
would be expected to be passed on to consumers in the form of price
changes. Consequently, for the reasons discussed above, we do not
believe that the designation of critical habitat for the spikedace and
loach minnow will significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for the spikedace and loach minnow in a
takings implications assessment. The takings implications assessment
concludes that this proposed designation of critical habitat for the
spikedace and loach minnow does not pose significant takings
implications.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Rule Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
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.
2. Critical habitat for the loach minnow (Tiaroga cobitis) and
spikedace (Meda fulgida) in Sec. 17.95(e), which was proposed on
December 20, 2005, at 70 FR 75546, is proposed to be amended by
revising some of the critical habitat unit descriptions as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Loach minnow (Tiaroga cobitis)
1. Critical habitat for the loach minnow in Arizona and New Mexico
is described in detail as follows.
* * * * *
(6) Complex 2--Black River, Apache and Greenlee Counties, Arizona.
(i) East Fork Black River--12.2 miles (19.7 km) of the river
extending from the confluence with the West Fork Black River at
Township 4 North, Range 28 East, section 11 upstream to the confluence
with an unnamed tributary approximately 0.51 miles (0.82 km) downstream
of the Boneyard Creek confluence at Township 5 North, Range 29 East,
section 5. Land ownership: U.S. Forest Service (Apache-Sitgreaves
National Forest).
(ii) North Fork East Fork Black River--4.4 miles (7.1 km) of river
extending from the confluence with East Fork Black River and an unnamed
drainage at Township 5, Range 29, section 5 upstream to the confluence
with an unnamed tributary at Township 6 North, Range 29 East, section
30. Land ownership: U.S. Forest Service (Apache-Sitgreaves National
Forest).
(iii) Boneyard Creek--no changes from proposed rule at this time.
* * * * *
(7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal
and Graham counties, Arizona.
(i) Aravaipa Creek--no changes from the proposed rule at this time.
(ii) Turkey Creek--2.7 miles (4.3 km) of creek extending from the
confluence with Aravaipa Creek at Township 6 South, Range 19 East,
section 19 upstream to the confluence with Oak Grove Canyon at Township
6 South, Range 19 East, section 32. Land ownership: Bureau of Land
Management.
(iii) Deer Creek--no changes from the proposed rule at this time.
* * * * *
(8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham
counties, Arizona and Catron County, New Mexico.
(i) Eagle Creek--44.7 miles (71.9 km) of creek extending from the
Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section
23 upstream to the confluence of Dry Prong and East Eagle creeks at
Township 2 North, Range 28 East, section 29. Land ownership: U.S.
Forest Service (Apache-Sitgreaves National Forest), Tribal (San Carlos)
lands, and private.
(ii) San Francisco River--126.5 miles (203.5 km) of river extending
from the confluence with the Gila River at Township 5 South, Range 29
East, section 21 upstream to the mouth of the Box, a canyon above the
town of Reserve, at Township 6 South, Range 19 West, section 2. Land
ownership: Bureau of Land Management, U.S. Forest Service (Apache-
Sitgreaves National Forest), State, and private in Arizona, and U.S.
Forest Service (Gila National Forest) and private in New Mexico.
(iii) Tularosa River--no changes from the proposed rule at this
time.
(iv) Negrito Creek--4.2 miles (6.8 km) of creek extending from the
confluence with the Tularosa River at Township 7 South, Range 18 West,
section 19 upstream to the confluence with Cerco Canyon at Township 7
South, Range 18 West, section 21. Land ownership: U.S. Forest Service
(Gila National Forest), and private lands.
(v) Whitewater Creek--no changes from the proposed rule at this
time.
(vi) Blue River--51.1 miles (82.2 km) of river extending from the
confluence with the San Francisco River at Township 2 South, Range 31
East, section 31 upstream to the confluence of Campbell Blue and Dry
Blue Creeks at Township 7 South, Range 21 West, section 6. Land
ownership: U.S. Forest Service (Apache-Sitgreaves National Forest) and
private lands in Arizona;
[[Page 32503]]
U.S. Forest Service (Gila National Forest) in New Mexico.
(vii) Campbell Blue Creek--no changes from the proposed rule at
this time.
(viii) Dry Blue Creek--3.0 miles (4.8 km) of creek extending from
the confluence with Campbell Blue Creek at Township 7 South, Range 21
West, section 6 upstream to the confluence with Pace Creek at Township
6 South, Range 21 West, section 28. Land ownership: U.S. Forest Service
(Gila National Forest).
(ix) Pace Creek--no changes from the proposed rule at this time.
(x) Frieborn Creek--1.1 miles (1.8 km) of creek extending from the
confluence with Dry Blue Creek at Township 7 South, Range 21 West,
section 6 upstream to an unnamed tributary at Township 7 South, Range
21 West, section 8. Land ownership: U.S. Forest Service (Gila National
Forest).
(xi) Little Blue Creek--no changes from the proposed rule at this
time.
* * * * *
(9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo
counties, New Mexico.
(i) Upper Gila River--no changes from the proposed rule at this
time.
(ii) East Fork Gila River--26.1 miles (42.0 km) of river extending
from the confluence with the West Fork Gila River at Township 13 South,
Range 13 West, section 8 upstream to the confluence of Beaver and
Taylor Creeks at Township 11 South, Range 12 West, section 17. Land
ownership: U.S. Forest Service (Gila National Forest) and private
lands.
(iii) Middle Fork Gila River--no changes from the proposed rule at
this time.
(iv) West Fork Gila River--no changes from the proposed rule at
this time.
* * * * *
Spikedace (Meda fulgida)
1. Critical habitat for the spikedace in Arizona and New Mexico is
depicted on the following overview map and described in detail
following the map.
* * * * *
(6) Complex 1--Verde River, Yavapai County, Arizona.
(i) Verde River--106.5 miles (171.4 km) of river extending from the
confluence with Fossil Creek at Township 11 North, Range 6 East,
section 25 upstream 106.5 (171.4 km) miles to Sullivan Dam at Township
17 North, Range 2 West, section 15. Land ownership: U.S. Forest Service
(Coconino, Prescott, and Tonto National Forests), Tribal (Yavapai
Apache Nation), State, and private lands.
* * * * *
(7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal
and Graham counties, Arizona.
(i) Gila River--no changes from the proposed rule at this time.
(ii) Lower San Pedro River--no changes from the proposed rule at
this time.
(iii) Aravaipa Creek--28.1 miles (45.3 km) of creek extending from
the confluence with the San Pedro River at Township 7 South, Range 16
East, section 9 upstream to the confluence with Stowe Gulch at Township
6 South, Range 19 East, section 35. Land ownership: Bureau of Land
Management, Tribal, State, and private lands.
* * * * *
(8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham
counties, Arizona.
(i) Eagle Creek--44.7 miles (71.9 km) of creek extending from the
Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section
23 upstream to the confluence of Dry Prong and East Eagle Creeks at
Township 2 North, Range 28 East, section 29. Land ownership: Bureau of
Land Management, U.S. Forest Service (Apache-Sitgreaves National
Forest), Tribal (San Carlos), and private lands.
* * * * *
(9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo
counties, New Mexico.
(i) Upper Gila River--no changes from the proposed rule at this
time.
(ii) East Fork Gila River--26.1 miles (42.0 km) of river extending
from the confluence with the West Fork Gila River at Township 13 South,
Range 13 West, section 8 upstream to the confluence of Beaver and
Taylor creeks at Township 11 South, Range 12 West, section 17. Land
ownership: U.S. Forest Service (Gila National Forest) and private
lands.
(iii) Middle Fork Gila River--7.7 miles (12.3 km) of river
extending from the confluence with the West Fork Gila River at Township
12 South, Range 14 West, section 25 upstream to the confluence with Big
Bear Canyon at Township 12 South, Range 14 West, section 2. Land
ownership: U.S. Forest Service (Gila National Forest) and private
lands.
(iv) West Fork Gila River--no changes from the proposed rule at
this time.
* * * * *
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: May 25, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-8645 Filed 6-5-06; 8:45 am]
BILLING CODE 4310-55-P