[Federal Register: April 15, 2008 (Volume 73, Number 73)]
[Proposed Rules]
[Page 20237-20241]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap08-28]
[[Page 20237]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2008-0034; 92210-1117-0000-B4]
RIN 1018-AV24
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha
bayensis)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, notice of
availability of draft economic analysis, and amended required
determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on the proposed revised designation of
critical habitat for the Bay checkerspot butterfly (Euphydryas editha
bayensis) under the Endangered Species Act of 1973, as amended (Act).
We also announce the availability of the draft economic analysis (DEA)
of the proposed revised critical habitat designation and an amended
required determinations section of the proposal. We are reopening the
comment period to allow all interested parties an opportunity to
comment simultaneously on the proposed rule, the associated DEA, and
the amended required determinations section. You do not have to resend
comments sent earlier. We will incorporate them into the public record
as part of this comment period, and we will fully consider them when
preparing our final determination.
DATES: We will accept public comments received or postmarked on or
before May 15, 2008.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2008-0034; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on http:/
/www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor or
Arnold Roessler, Listing Program Coordinator, U.S. Fish and Wildlife
Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-
2605, Sacramento, CA 95825; telephone 916-414-6600; or facsimile 916-
414-6712. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed revised critical habitat
designation for the Bay checkerspot butterfly published in the Federal
Register on August 22, 2007 (72 FR 48178), the DEA of the proposed
revised designation, and the amended required determinations provided
in this document. We will consider information and recommendations from
all interested parties. We are particularly interested in comments
concerning:
(1) The reasons why we should or should not designate habitat as
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.).
(2) Specific information on:
The amount and distribution of Bay checkerspot butterfly
habitat,
What areas occupied at the time of listing that contain
features essential to the conservation of the species we should include
in the designation and why, and
What areas not occupied at the time of listing are
essential for the conservation of the species and why.
(3) Land-use designations and current or planned activities in the
subject areas and their possible effects on proposed critical habitat.
(4) Information on the extent to which any State and local
environmental protection measures we reference in the DEA may have been
adopted largely as a result of the listing of the Bay checkerspot
butterfly, and which were either already in place at the time of
listing or enacted for other reasons.
(5) Information on whether the DEA identifies all State and local
costs and benefits attributable to the proposed critical habitat
designation, and information on any costs or benefits that we have
overlooked.
(6) Information on whether the DEA makes appropriate assumptions
regarding current practices and any regulatory changes likely if we
designate revised critical habitat.
(7) Information on whether the DEA correctly assesses the effect on
regional costs associated with any land use controls that may result
from the revised critical habitat designation.
(8) Information on areas that the revised critical habitat
designation could potentially impact to a disproportionate degree.
(9) Any foreseeable economic, national-security, or other potential
impacts resulting from the proposed revised designation and, in
particular, any impacts on small entities, and the benefits of
including or excluding areas that exhibit these impacts.
(10) Information on whether the DEA identifies all costs that could
result from the revised designation.
(11) Information on any quantifiable economic benefits of the
revised designation of critical habitat.
(12) Whether the benefits of excluding any particular area outweigh
the benefits of including that area under section 4(b)(2) of the Act.
(13) Economic data on the incremental costs of designating any
particular area as revised critical habitat.
(14) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
If you submitted comments or information during the initial comment
period from August 22 to October 22, 2007, on the proposed rule (72 FR
48178), please do not resubmit them. We will incorporate them into the
public record as part of this comment period, and we will fully
consider them in preparation of our final determination. Our final
determination concerning revised critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
we may, during the development of our final designation, find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you
[[Page 20238]]
may request at the top of your document that we withhold this
information from public review. However, we cannot guarantee that we
will be able to do so. We will post all hardcopy comments on http://
www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this notice will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
You may obtain copies of the proposed rule and DEA by mail from the
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT) or by visiting our Web site at http://www.fws.gov/sacramento.
Background
On April 30, 2001, we published in the Federal Register the final
designation of critical habitat for the Bay checkerspot butterfly (66
FR 21450, April 30, 2001) which encompassed approximately 23,903 acres
(ac) (9,673 hectares (ha)). On March 30, 2005, the Home Builders
Association of Northern California (Home Builders) filed a complaint
contending, among other things, that the Service failed to adequately
analyze the economic costs of the designation of critical habitat for
this subspecies (Home Builders of Northern California v. U.S. Fish and
Wildlife Service, et al. Case No. cv-01363-LKK-JFM). On February 24,
2006, the Service entered into a settlement agreement with Home
Builders to submit for publication a proposed revised critical habitat
designation for this subspecies to the Federal Register by August 14,
2007, and to submit a final determination of critical habitat for
publication by August 14, 2008. The April 30, 2001, designation remains
in place during this revision process. On August 22, 2007, we published
a proposed rule to revise critical habitat for the Bay checkerspot
butterfly (72 FR 48178), identifying a total of approximately 19,746 ac
(7,990 ha) of land in San Mateo and Santa Clara Counties, California.
Section 3 of the Act defines critical habitat as the specific areas
within the geographical 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 geographical 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.
Under section 4(b)(2) of the Act, we may exclude an area from
critical habitat if we determine that the benefits of such exclusion
outweigh the benefits of including that particular area as critical
habitat, unless failure to designate that specific area as critical
habitat will result in the extinction of the species. We may exclude an
area from designation as critical habitat based on economic impacts,
national security, or any other relevant impact.
If we make final the proposed rule of August 22, 2007, 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, under section 7(a)(2) of the Act.
Draft Economic Analysis
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 impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat. We have prepared a DEA of the
proposed revised critical habitat designation based on our August 22,
2007, proposed rule to revise the critical habitat designation for the
Bay checkerspot butterfly (72 FR 48178).
The intent of the DEA is to quantify the economic impacts of all
potential conservation efforts for the Bay checkerspot butterfly; some
of these costs will likely be incurred regardless of whether we revise
the designated critical habitat. The DEA provides estimated costs of
the foreseeable potential economic impacts of the proposed revised
critical habitat designation (incremental impacts) and other
conservation-related actions (baseline impacts) for this species over
the next 22 years. A 22-year period was chosen because information was
available to reliably forecast economic activity to 2030. It also
considers past costs associated with conservation of the species from
the time it was listed in 1987 (52 FR 35366, September 18, 1987), until
the year the proposed revised critical habitat rule was published (72
FR 48178, August 22, 2007). Because the current DEA is analyzing the
future costs of the proposed revised designation (72 FR 48178), the
costs associated with the current designation of critical habitat (66
FR 21450) have been included only in the past baseline economic
impacts.
The economic analysis quantifies impacts associated with the
conservation of the Bay checkerspot butterfly including future urban
development, management of invasive plants, pesticide use, and over or
under grazing. These activities were identified as factors that may
require special management (72 FR 48183-48184). Pre-designation (1987
to 2007) impacts associated with species conservation activities in
areas proposed for designation are estimated at approximately $9
million in 2007 dollars. The DEA forecasts baseline economic impacts in
the areas proposed for designation to be approximately $390 million
($18 million annualized) (2008 dollars) applying a 3 percent discount
rate over the next 22 years, $270 million ($13 million annualized)
(2008 dollars) applying a 7 percent discount rate over the next 22
years, and $550 million (25 million annualized) (2008 dollars) at an
undiscounted rate over the next 22 years. The DEA forecasts incremental
economic impacts to be approximately $0 to $750,000 ($0 to $44,000
annualized) (2008 dollars) applying a 3 percent discount rate over the
next 22 years. The cost estimates are based on the proposed revised
designation of critical habitat published in the Federal Register on
August 22, 2007 (72 FR 48178).
The DEA considers the potential economic effects of actions
relating to the conservation of the Bay checkerspot butterfly,
including costs associated with sections 4, 7, and 10 of the Act, as
well as costs attributable to the designation of revised 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 Bay checkerspot butterfly in areas
containing features essential to the conservation of the species. The
DEA 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 (such as lost
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economic opportunities associated with restrictions on land use).
The DEA 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 government agencies, private businesses, and
individuals. The DEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the revised designation might unduly burden a particular
group or economic sector. Finally, the DEA looks retrospectively at
costs that have been incurred since the date we listed the Bay
checkerspot butterfly as endangered (52 FR 35366, September 18, 1987)
and considers those costs that may occur in the 22 years following the
designation of critical habitat. Because the DEA considers the
potential economic effects of all actions relating to the conservation
of the Bay checkerspot butterfly, including costs associated with
sections 4, 7, and 10 of the Act and those attributable to a revised
designation of critical habitat, the DEA may have overestimated the
potential economic impacts of the revised critical habitat designation.
As stated earlier, we are soliciting data and comments from the
public on this DEA, as well as on all aspects of the proposed rule and
our amended required determinations. We may revise the proposed rule or
its supporting documents to incorporate or address information we
receive during this comment period. In particular, we may exclude an
area from the revised critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area as revised critical habitat, provided the exclusion will not
result in the extinction of the species.
Required Determinations--Amended
In our August 22, 2007, proposed rule (72 FR 48178), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have not
made use of the DEA data to make these determinations. In this document
we affirm the information contained in our proposed rule concerning
Executive Order (E.O.) 13132; E.O. 12988; the Paperwork Reduction Act;
and the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments (59 FR
22951). However, based on the DEA data, we revise our required
determinations concerning E.O. 12866 and the Regulatory Flexibility
Act, E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded
Mandates Reform Act, and E.O. 12630 (Takings).
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
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) (5 U.S.C. 802(2)), 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
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Based on our DEA of
the proposed revised designation, we provide our analysis for
determining whether the proposed rule would result in a significant
economic impact on a substantial number of small entities. Based on
comments we receive, we may revised this determination as part of our
final rulemaking.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and 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
revised designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
To determine if the proposed revised designation of critical
habitat for the Bay checkerspot butterfly would affect a substantial
number of small entities, we considered the number of affected small
entities within particular types of economic activities, such as
residential and commercial development. In order to determine whether
it is appropriate for our agency to certify that this rule would not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Critical habitat designation will not affect activities that do not
have any Federal involvement; designation of critical habitat affects
activities conducted, funded, permitted, or authorized by Federal
agencies.
If we finalize this proposed revised critical habitat designation,
Federal agencies must consult with us under section 7 of the Act 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 DEA of the proposed revised critical habitat designation, we
evaluated the potential economic effects on small business entities
from conservation actions related to the listing of the Bay checkerspot
butterfly
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and the proposed revised designation of the species' critical habitat.
The DEA did not identify any small entities according to the Small
Business Administration's (SBA) definition of small entities. As a
result there are no economic impacts to small businesses with the
designation of this critical habitat. We have considered whether this
rule would result in a significant economic effect on a substantial
number of small entities. We have determined and therefore certify
that, for the above reasons and based on currently available
information, the proposed designation will not have a significant
economic impact on a substantial number of small business entities.
In summary, we have considered whether the proposed rule would
result in a significant economic impact on a substantial number of
small entities. For the above reasons and based on currently available
information, we certify that, if promulgated, this proposed rule would
not have a significant economic impact on a substantial number of small
entities. Therefore, an initial regulatory flexibility analysis is not
required.
Executive Order 13211--Energy Supply, Distribution, and Use
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. OMB's guidance for implementing this
Executive Order outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to no regulatory action. The
DEA has identified one electric energy firm (Calpine Corporation) which
owns land within the proposed revised designation of critical habitat
(Unit 5). In 2000, the Calpine Corporation proposed to construct and
operate a 600-megawatt, natural gas-fired, combined cycle electric
generation facility. The land located within the proposed revised
designation of critical habitat was purchased by the Calpine
Corporation as compensation to off-set project-related effects to the
Bay checkerspot butterfly and its habitat as a result of the U.S.
Environmental Protection Agency (EPA) permitting of the Calpine
Corporation's Metcalf Energy Center in Santa Clara County, California
(Service File 1-1-00-F-235) in 2001. The Calpine Corporation does not
plan to expand its facilities or construct new facilities associated
with the Metcalf Energy Center on any of its land within or near the
area. The biological opinion under section 7 of the Act for this
project identifies the measures already taken by the Calpine
Corporation to compensate for effects to the butterfly and its habitat,
and the designation of revised critical habitat is not expected to lead
to any reduction in electricity production or an increase in cost of
energy production or distribution.
Thus, based on information in the DEA, we do not expect Bay
checkerspot butterfly conservation activities within proposed revised
critical habitat to lead to energy-related impacts. As such, we do not
expect the proposed revised designation of critical habitat to
significantly affect energy supplies, distribution, or use, and a
Statement of Energy Effects is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (UMRA) (2
U.S.C. 1501 et seq.), 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.
``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.''
Critical habitat designation 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. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits,
or that otherwise require approval or authorization from a Federal
agency for an action that 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
onto State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. As discussed in the DEA, the majority of
lands proposed as revised critical habitat are comprised of privately
owned lands, which do not qualify as a small government. Consequently,
we do not believe that revised critical habitat designation would
significantly or uniquely affect small government entities. As such, a
Small Government Agency Plan is not required.
Executive Order 12630--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 revised critical habitat for the Bay checkerspot butterfly in
a takings implications assessment. Our takings implications assessment
concludes that this proposed revised designation of critical habitat
for the Bay checkerspot butterfly does not pose significant takings
implications.
References Cited
A complete list of all references we cited in the proposed rule is
available on http://www.regulations.gov.
Author
The primary author of this notice is 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.)
[[Page 20241]]
Dated: April 2, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-7689 Filed 4-14-08; 8:45 am]
BILLING CODE 4310-55-P