[Federal Register: August 19, 2004 (Volume 69, Number 160)]
[Proposed Rules]               
[Page 51417-51442]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT66

Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Buena Vista Lake Shrew

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Buena Vista Lake shrew (Sorex 
ornatus relictus) (referred to here as the shrew) pursuant to the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 4,649 acres (ac) (1,881 hectares (ha)) occur within the 
boundaries of the proposed critical habitat designation. The proposed 
critical habitat is located in the Central Valley floor of Kern County, 

DATES: We will accept comments from all interested parties until 
October 18, 2004. We will hold public hearings on Thursday, September 
30, 2004 at the DoubleTree Hotel, 3100 Camino del Rio Court, 
Bakersfield, California. The public hearing will include two sessions: 
1 p.m. until 3 p.m. and 6 p.m. until 8 p.m. Registration for the 
hearings will begin at 12:30 p.m. for the afternoon session and at 5:30 
p.m. for the evening session.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information by mail or hand 
delivery to the Field Supervisor, U.S. Fish and Wildlife Service, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, 
Sacramento, California 95825.
    2. You may send comments by electronic mail (e-mail) to 
BVLS_pCH@fws.gov. Please see the Public Comments Solicited section below for 

file format and other information about electronic filing. In the event 
that our internet connection is not functional, please submit your

[[Page 51418]]

comments by the alternate methods mentioned above.
    The comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-
2605, Sacramento, California (telephone 916-414-6600).

FOR FURTHER INFORMATION CONTACT: Shannon Holbrook or Arnold Roessler, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605 
Sacramento, California, (telephone 916-414-6600; facsimile 916-414-


Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested parties 
concerning this proposed rule are hereby solicited. We particularly 
seek 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 Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation.
    (2) Specific information on the amount and distribution of shrew 
habitat, and what habitat is essential to the conservation of the 
species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other potential impacts resulting 
from the proposed designation and, in particular, any impacts on small 
entities; and
    (5) Whether our approach to designating critical habitat 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.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to BVLS_pCH@fws.gov in ASCII 
file format and avoid the use of special characters or any form of 
encryption. Please also include ``Attn: Buena Vista Lake shrew'' in 
your e-mail subject header and 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 Sacramento Fish and Wildlife Office at phone number 916-
414-6600. Please note that the Internet address BVLS_pCH@fws.gov will 
be closed out at the termination of the public comment period.
    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. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. 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 will be available for public 
inspection, by appointment, during normal business hours at the above 

Public Hearings

    The Act provides for a public hearing on this proposal, if 
requested. Given the high likelihood of requests, we have scheduled a 
public hearing on Thursday, September 30, 2004 at the DoubleTree Hotel, 
3100 Camino del Rio Court, Bakersfield. Anyone wishing to make oral 
comments for the record at the public hearing is encouraged to provide 
a written copy of their statement and present it to us at the hearing. 
In the event there is a large attendance, the time allotted for oral 
statements may be limited. Oral and written statements receive equal 
    Persons needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Patti Carroll at 503/
231-2080 as soon as possible. In order to allow sufficient time to 
process requests, please call no later than 1 week before the hearing 

Designation of Critical Habitat Provides Little Additional Protection 
to the Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,244 listed species through conservation mechanisms such as 
listing, section 7 consultations, the Section 4 recovery planning 
process, the Section 9 protective prohibitions of unauthorized take, 
Section 6 funding to the States, and the Section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United State Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate

[[Page 51419]]

critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result of 
this consequence, listing petition responses, the Service's own 
proposals to list critically imperiled species, and final listing 
determinations on existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This situation in turn fosters a second round of litigation in which 
those who fear adverse impacts from critical habitat designations 
challenge those designations. The cycle of litigation appears endless, 
is very expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs associated with the critical habitat designation process 
include legal costs, the costs of preparation and publication of the 
designation, the analysis of the economic effects and the costs of 
requesting and responding to public comments, and, in some cases, the 
costs of compliance with National Environmental Policy Act. None of 
these costs result in any benefit to the species that is not already 
afforded by the protections of the Act enumerated earlier, and these 
associated costs directly reduce the scarce funds available for direct 
and tangible conservation actions.


    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the Buena Vista Lake shrew (Sorex ornatus relictus), 
refer to the final listing rule published in the Federal Register on 
March 6, 2002 (67 FR 10101).
    The shrew formerly occurred in wetlands around Buena Vista Lake, 
and presumably throughout the Tulare Basin (Grinnell 1932, 1933; Hall 
1981; Williams and Kilburn 1984; Williams 1986; Service 1998). The 
animals were likely distributed throughout the swampy margins of Kern, 
Buena Vista, Goose, and Tulare Lakes. By the time the first shrews were 
collected and described, these lakes had already been drained and 
mostly cultivated with only sparse remnants of the original flora and 
fauna remaining (Grinnell 1932; Mercer and Morgan 1991; Griggs 1992; 
Service 1998).
    Nearly the entire valley floor in the Tulare Basin is cultivated, 
and most of the lakes and marshes have been drained and cultivated 
(Williams 1986; Werschkull et al. 1992; Williams and Kilburn 1992; 
Williams and Harpster 2001). The shrew is now known from five isolated 
locations along an approximately 70-mile (mi) (113-kilometer (km)) 
stretch on the west side of the Tulare Basin. The five locations are 
the former Kern Lake Preserve (Kern Preserve) on the old Kern Lake bed, 
the Kern Fan recharge area, Cole Levee Ecological Preserve (Cole 
Levee), the Kern National Wildlife Refuge (Kern NWR) and the Goose Lake 
slough bottoms.
    Over the last 20 years, a number of surveys have taken place in 
other freshwater marshes and moist riparian areas on private and public 
lands throughout the range of the subspecies and were all unsuccessful 
in capturing any shrews. For other previous surveys for the shrew, 
please refer to the final listing rule published in the Federal 
Register on March 6, 2002 (67 FR 10101).
    In 2003, a survey was conducted by the California State University, 
Stanislaus Endangered Species Recovery Program (ESRP) for the Goose 
Lake Bottoms Wetland project. The five shrews captured on the sloughs 
and canals and in the inundation zone of Goose Lake during the 2003 
survey were located within approximately 6.5 ac (2.6 ha) along the 
sloughs that consisted of emergent vegetation that includes an 
abundance of saltgrass, Allenrolfea and Suaeda (ESRP 2004). The study 
concluded that the preferred habitat of the shrew is along the margins 
of wet areas where emergent vegetation provides cover and foraging 

Previous Federal Actions

    A final rule listing the shrew as endangered was published in the 
Federal Register on March 6, 2002 (67 FR 10101). Please refer to the 
final rule listing the shrew for information on previous Federal 
actions prior to March 6, 2002. On January 12, 2004, the United States 
District Court for the Eastern District of California issued a 
Memorandum Opinion and Order (Kern County Farm Bureau et al. v. Anne 
Badgley, Regional Director of the United States Fish and Wildlife 
Service, Region 1 et al., CV F 02-5376 AWIDLB). The order required the 
Service to publish a proposed critical habitat determination for the 
shrew no later than July 12, 2004, and a final determination no later 
than January 12, 2005. On July 8, 2004, the court extended the deadline 
for submitting the proposed rule to the Federal Register to August 13, 

Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat as--(i) 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 (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) 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. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    The designation of critical habitat does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve, or other 
conservation area. It does not allow government or public access to 
private lands. Under section 7 of the Act, Federal agencies must 
consult with us on activities they undertake, fund, or permit that may 
affect critical habitat and lead to its destruction or adverse 
modification. However, the Act prohibits unauthorized take of listed 
species and requires consultation for activities that may affect them, 
including habitat alterations, regardless of whether critical habitat 
has been designated. We have found that the designation of critical 
habitat provides little additional protection to most listed species.
    To be included in a critical habitat designation, habitat must be 
either a specific area within the geographic area occupied by the 
species on which are found those physical or biological features 
essential to the conservation of the species (primary constituent

[[Page 51420]]

elements, as defined at 50 CFR 424.12(b)) and which may require special 
management considerations or protections, or be specific areas outside 
of the geographic area occupied by the species which are determined to 
be essential to the conservation of the species. Section 3(5)(C) of the 
Act states that not all areas that can be occupied by a species should 
be designated as critical habitat unless the Secretary determines that 
all such areas are essential to the conservation of the species. Our 
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall 
designate as critical habitat areas outside the geographic area 
presently occupied by the species only when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
    Regulations at 50 CFR 424.02(j) define special management 
considerations or protection to mean any methods or procedures useful 
in protecting the physical and biological features of the environment 
for the conservation of listed species. When we designate critical 
habitat, we may not have the information necessary to identify all 
areas that are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we consider to 
be essential, using the best information available to us. Accordingly, 
we do not designate critical habitat in areas outside the geographic 
area occupied by the species unless the best available scientific and 
commercial data demonstrate that those areas are essential for the 
conservation needs of the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
We may exclude areas from critical habitat designation when the 
benefits of exclusion outweigh the benefits of including the areas 
within critical habitat, provided the exclusion will not result in 
extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties 
or other entities that develop HCPs, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of designation. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by section 7(a)(2) and section 9 of the 
Act, as determined on the basis of the best available information at 
the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.


    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12, we used the best scientific and commercial data available to 
determine areas that contain the physical and biological features that 
are essential for the conservation of the shrew. This included data and 
information contained in, but not limited to, the proposed and final 
rules listing the shrew (Service 2000, 2002), the Recovery Plan for 
Upland Species of the San Joaquin Valley, California (Service 1998), 
research and survey observations published in peer reviewed articles 
(Grinnell 1932, 1933; Hall 1981; Williams and Kilburn 1984; Williams 
1986), habitat and wetland mapping and other data collected and reports 
submitted by biologists holding section 10(a)(1)(A) recovery permits, 
biological assessments provided to the Service through section 7 
consultations, reports and documents that are on file in the Service's 
field office (Center for Conservation Biology 1990; Maldonado et al. 
1998; ESRP 1999a; ESRP 2004), and personal discussions with experts 
inside and outside of the Service with extensive knowledge of the shrew 
and habitat in area. We then conducted site visits and visual habitat 
evaluation in areas known to have shrew, and in areas within the 
historical ranges that had potential to contain shrew habitat.
    The proposed critical habitat units were delineated by creating 
rough areas for each unit by screen digitizing polygons (map units) 
using ArcView (Environmental Systems Research Institute, Inc.), a 
computer Geographic Information System (GIS) program. The polygons were 
created by overlaying current and historic species location points 
(CNDDB 2004), and mapped wetland habitats (California Department of 
Water Resources 1999) or other wetland location information, onto SPOT 
imagery (satellite aerial photography) (CNES/SPOT Image Corporation 
1993-2000) and Digital Ortho-rectified Quarter Quadrangles (DOQQs) 
(USGS 1993-1998) for areas containing the shrew. We utilized GIS data 
derived from a variety of Federal, State, and local agencies, and from 
private organizations and individuals. To identify where essential 
habitat for the shrew occurs we evaluated the GIS habitat mapping and 
species occurrence information from the CNDDB (2004). We presumed 
occurrences identified in CNDDB to be extant unless there was 
affirmative documentation that an occurrence had been extirpated. We 
also relied on unpublished species occurrence data contained within our 
files including section 10(a)(1)(A) reports and biological assessments.
    These polygons of identified habitat were further evaluated. 
Several factors were used to delineate the proposed critical habitat 
units from these land areas. We reviewed any information in the 
Recovery Plan for Upland Species of the San Joaquin Valley, California 
(Service 1998), or other peer reviewed literature or expert opinion for 
the shrew to determine if the designated areas would meet the species 
needs for conservation and that these areas contained the appropriate 
primary constituent elements for the species. Further refinement was 
done by using satellite imagery, watershed boundaries,

[[Page 51421]]

soil type coverages, vegetation/land cover data, and agricultural/urban 
land use data to eliminate areas that did not contain the appropriate 
vegetation or associated native plant species, as well as features such 
as cultivated agriculture fields, development, and other areas that are 
unlikely to contribute to the conservation of the shrew.
    As stated earlier, the shrew occurs in habitats in and adjacent to 
riparian and wetland edge areas with a vegetation structure that 
provides cover, allowing for moist soils that support a diversity of 
terrestrial and aquatic insect prey. We have determined that all five 
of the known locations of shrew are essential to the conservation of 
the species (CNDDB 2003). These areas all contain wetland and/or 
riparian habitat and are located within the historical range of the 
shrew. The specific essential habitat is explained in greater detail 
below in the Unit Descriptions section.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements (PCEs)) 
that are essential to the conservation of the species, and that may 
require special management considerations and protection. These 
include, but are not limited to: Space for individual and population 
growth and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, and rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The specific primary constituent elements required for the shrew 
are derived from the biological needs of the shrew as described in the 
Background section of this proposal and in the final listing rule.

Space for Individual and Population Growth and Normal Behavior

    As described previously, shrew were recorded in association with 
perennial and intermittent wetland habitats along riparian corridors, 
marsh edges, and other palustrine (marsh type) habitats in the southern 
San Joaquin Valley of California. The shrew presumably occurred in the 
moist habitat surrounding wetland margins in the Kern, Buena Vista, 
Goose and Tulare lakes basins on the valley floor below 350 ft (107 m) 
elevation (Grinnell 1932, 1933; Hall 1981; Williams and Kilburn 1984; 
Williams 1986; Service 1998). With the draining and conversion of the 
majority of the shrew's natural habitat from wetland to agriculture and 
the channelization of riparian corridors for water conveyance 
structures, the vegetative communities associated with the shrew have 
become degraded and non-native species have replaced the plant species 
associated with the shrew (Grinnell 1932; Mercer and Morgan 1991; 
Griggs 1992; Service 1998). Current survey information has identified 
five areas where the shrew has been found (CNDDB 2004; Maldonado 1992; 
Williams and Harpster 2001; ESRP 2004). The five locations are the 
former Kern Lake Preserve (Kern Preserve) on the old Kern Lake bed, the 
Kern Fan recharge area, Cole Levee Ecological Preserve (Cole Levee), 
the Kern National Wildlife Refuge (Kern NWR) and the Goose Lake slough 
bottoms. The vegetative communities associated with these areas and 
with shrew occupancy are characterized by the presence of but is not 
limited to: Fremont cottonwood (Populus fremontii), willows, Salix 
spp.) glasswort (Salicornia sp.), wild-rye grass (Elymus sp.), and rush 
grass (Juncus sp.) and other emergent vegetation (Service 1998). 
Maldonado (1992) found shrews in areas of moist ground covered with 
leaf litter near other low-lying vegetation, branches, tree roots, and 
fallen logs, or in areas with cool, moist soil beneath dense mats of 
vegetation kept moist by its proximity to the water line. He described 
specific habitat features that would make them suitable for the shrew: 
(1) Dense vegetative cover; (2) a thick, three-dimensional understory 
layer of vegetation and felled logs, branches, and detritus/debris; (3) 
heavy understory of leaf litter with duff overlying soils; (4) 
proximity to suitable moisture; and (5) a year-round supply of 
invertebrate prey. Williams and Harpster (2001) concluded that the best 
habitat for the shrew was found in ``riparian and wetland communities 
with an abundance of leaf litter (humus) or dense herbaceous cover.'' 
They also determined that ``although moist soil in areas with an 
overstory of willows or cotton woods appears to be favored,'' they 
doubted that such overstory was essential. Based on changes in the 
native habitat composition and structure and information on habitat 
descriptions of where the shrew have been found, we include the moist 
vegetative communities surrounding permanent and semi-permanent 
wetlands in our description of shrew critical habitat because they are 
the habitat requirements needed by the shrew.


    The specific feeding and foraging habits of the shrew are not well 
known. In general, shrews primarily feed on insects and other animals, 
mostly invertebrates (Harris 1990, Williams 1991, Maldonado 1992). Food 
probably is not cached and stored, so the shrew must forage 
periodically day and night to maintain its high metabolic rate.
    The vegetation communities described above provide a diversity of 
structural layers and plant species and likely contribute to the 
availability of prey for shrews. Therefore, conservation of the shrew 
should include consideration of the habitat needs of prey species, 
including structural and species diversity and seasonal availability. 
Shrew habitat must provide sufficient prey base and cover from which to 
hunt in an appropriate configuration and proximity to nesting sites. 
The shrew feeds indiscriminately on available larvae and adults of 
several species of aquatic and terrestrial insects. An abundance of 
invertebrates is associated with moist habitats, such as wetland edges, 
riparian habitat, edges of lakes, ponds, or drainages that possess a 
dense vegetative cover (Owen and Hoffmann 1983). Therefore, to be 
considered essential, critical habitat consists of a vegetative 
structure that contains suitable soil moisture capable of supporting a 
diversity of invertebrates so that there is a substantial food source 
to sustain occurrences of the shrew.


    Open water does not appear to be necessary for the survival of the 
shrew. The habitat where the shrew have been found contain areas with 
both open water and mesic environments (Maldonado 1992; Williams and 
Harpster 2001). The availability of water contributes to improved 
vegetation structure and diversity which improves cover availability. 
The presence of water also attracts potential prey species improving 
prey availability.

Reproduction and Rearing of Offspring

    Little is known about the reproductive needs of the shrew. The 
breeding season begins in February or March and ends in May or June, 
but can be extended depending on habitat quality and available moisture 
(J. Maldonado, Pers Comm., 1998; Paul Collins, Santa Barbara Museum of 
Natural History, in litt. 2000). The edges of wetland or marshy habitat 
allow the shrew to provide hospitable environments and

[[Page 51422]]

have larger prey base to give birth and raise its young. The shrew's 
preference for dense vegetative understories also provides cover from 
predators. Dense vegetation also allows for the soil moisture necessary 
for a consistent supply of terrestrial and aquatic insect prey 
(Kirkland 1991; Ma and Talmage 2001, Freas 1990, Maldonado 1992, 
Maldonado et al., 1998).
    The areas proposed for designation as critical habitat for the 
shrew consist of habitat with the primary constituent elements that are 
essential for adult and juvenile shrews to maintain and sustain 
occurrences throughout their range. The PCE's below describe the 
habitat of units that are being designated as critical habitat. Special 
management, such as habitat rehabilitation efforts (e.g., provision of 
an adequate and reliable water source and restoration of riparian 
habitat), may be necessary throughout the areas being proposed.

Primary Constituents for the Buena Vista Lake Shrew

    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the shrew requires the following primary constituent elements:
    (i) Riparian or wetland communities supporting a complex vegetative 
structure with a thick cover of leaf litter or dense mats of low-lying 
vegetation; and
    (ii) Suitable moisture supplied by a shallow water table, 
irrigation, or proximity to permanent or semi-permanent water; and
    (iii) A consistent and diverse supply of prey.
    The requisite riparian and wetland habitat is essential for the 
shrew by providing space and cover necessary to sustain the entire life 
cycle needs of the shrew, as well as its invertebrate prey. The shrew 
is preyed upon by many large vertebrate carnivores as well as avian 
predators. Therefore, a dense vegetative structure provides the cover 
or shelter essential for evading predators as well as serving as 
habitat for breeding and reproduction, and allows for the protection 
and rearing of offspring and the growth of adult shrews.

Criteria Used To Identify Critical Habitat

    For the eventual delisting of the shrew, it is necessary to 
conserve sufficient population numbers to ensure that it can be self-
sustaining. The five units proposed to be designated are determined to 
be essential for the conservation of the species because they contain a 
variety of habitats. Protecting a variety of habitats and conditions 
that contain the PCE's will allow the shrew to be self-sustaining 
because it will increase the ability of the shrew to survive stochastic 
environmental (e.g., fire), natural (e.g., predators), demographic 
(e.g., low recruitment), or genetic (e.g., inbreeding) events, 
therefore lowering the probability of extinction. Suitable habitat 
within the historic range is extremely limited and remaining habitats 
are vulnerable to both anthropogenic and natural threats because so few 
extant occurrences of the shrew exist, and the number of individuals at 
each location is estimated to be low. Also, these areas provide 
habitats essential for the maintenance and growth of self-sustaining 
populations and metapopulations (a set of local populations where 
typically migration from one local population to other areas containing 
suitable habitat is possible) of shrews throughout its range. 
Therefore, these areas are essential to the conservation of the shrew.
    We are proposing to designate critical habitat in five units that 
we have determined are essential to the conservation of the shrew. In 
our development of critical habitat for the shrew, we used the 
following methods. All of the units have the primary constituent 
element described above.
    When determining critical habitat boundaries, we made every effort 
to exclude all developed areas, such as towns, housing developments, 
and other lands unlikely to contain the primary constituent elements 
essential for shrew conservation. Our mapping units exclude any 
developed lands, such as lands supporting outbuildings, paddocks, 
roads, paved areas, lawns, and other lands unlikely to contain the 
primary constituent elements.
    In summary, we are proposing to designate five critical habitat 
units within the known geographical area occupied by the species. The 
primary constituent elements are present and the shrew is extant in all 
units. Additional areas outside of the geographic area currently known 
to be occupied by the shrew were evaluated to determine if they are 
essential to the conservation of the shrew and should be included in 
the proposed critical habitat. Based upon our evaluation of available 
information which included the Recovery Plan, survey data, and 
historical records, we do not find any areas outside of the known 
geographical area occupied by the shrew to be essential to the 
conservation of the species at this time.

Special Management Considerations or Protections

    Special management considerations or protections may be needed to 
maintain the physical and biological features as well as the primary 
constituent elements that are essential for the conservation of the 
shrew within designated critical habitat. The term ``special management 
considerations or protection'' originates in section 3(5)(A) of the Act 
under the definition of critical habitat. We believe that the proposed 
critical habitat units may require the special management 
considerations or protections due to the threats identified below.
    The majority of locations supporting the shrew are on private land, 
and are subject to a change in water supply that maintains the current 
habitat. Elevated concentrations of selenium also represent a serious 
environmental threat to the species (Service 2002). High levels of 
selenium have been measured in recharge and evaporation ponds adjacent 
to areas where the shrew occurs (California Department of Water 
Resources in litt. 1997). Potential dietary selenium concentrations, 
from sampled aquatic insects, are within ranges toxic to small mammals 
(Olson 1986, Skorupa et al. 1996), and could include, but may not be 
limited to, reduced reproductive output or premature death (Eisler 
1985, Skorupa et al. 1996). The shrew also faces high risks of 
extinction from random catastrophic events (e.g. floods, drought, and 
inbreeding) (Service 1998). These threats and others mentioned above 
would render the habitat less suitable for the shrew, and special 
management may be needed to address them.

Proposed Critical Habitat Designation

    We are proposing 5 units as critical habitat for the shrew. These 5 
critical habitat units described below constitute our best assessment 
at this time of the areas essential for the conservation of the shrew. 
The 5 units proposed as critical habitat for the shrew are:
    (1) Kern National Wildlife Refuge; (2) Goose Lake; (3) Kern Fan 
Recharge Area; (4) Coles Levee; and, (5) Kern Lake.
    The approximate area encompassed within each proposed critical 
habitat unit is shown in Table 1.

[[Page 51423]]

                                        Table 1.--Critical Habitat Units Proposed for the Buena Vista Lake Shrew
    [Area estimates reflect all lands within proposed critical habitat unit boundaries, not just the areas supporting primary constituent elements.]
                                                            Federal              State          Local agencies          Private              Total
                        Unit                         ---------------------------------------------------------------------------------------------------
                                                         ac        ha        ac        ha        ac        ha        ac        ha        ac        ha
1. Kern National Wildlife Refuge....................       387       157  ........  ........  ........  ........  ........  ........       387       157
2. Goose Lake.......................................  ........  ........  ........  ........  ........  ........     1,277       517     1,277       517
3. Kern Fan Recharge Area...........................  ........  ........  ........  ........     2,682     1,085  ........  ........     2,682     1,085
4. Coles Levee......................................  ........  ........  ........  ........  ........  ........       214        87       214        87
5. Kern Lake........................................  ........  ........  ........  ........  ........  ........        90        36        90        36
    Grand Total.....................................       387       157         0         0     2,682     1,085     1,581       640     4,649     1,881

    Although we are aware that less than ten percent of Federal lands 
occur within these boundaries, the majority of these areas proposed for 
critical habitat designation occur on privately owned land.
    The areas essential for the shrew include areas throughout the 
species' range in California and includes areas representative of all 
habitat types where the species is found, so as to better ensure the 
long term survival of the species. Below are brief descriptions of all 
the proposed units and the reasons why they are essential for the 
conservation of the shrew.

Unit 1: Kern National Wildlife Refuge (Kern NWR) Unit

    The Kern NWR Unit is in northwestern Kern County. The Kern NWR 
consists of two sub-units totaling approximately 387 ac (157 ha) (unit 
1a, 274 ac (111 ha); unit 1b, 66 ac (27 ha); unit 1c, 47 ac (19 ha)). 
Shrew habitat in this unit receives its soil moisture regime from the 
California Aqueduct. There are known occurrences at two locations 
within the refuge. One of these areas has standing water from September 
1 through approximately April 15. After that time, the trees in the 
area may receive irrigation water so the area may possibly remain damp 
through May. This area is dry for approximately 3 months during the 
summer. The second area of known occurrences has standing water from 
the second week of August through June into early July and is only dry 
for a short time during the summer. Two other areas where shrew 
occurrences are likely within the refuge are the Poso Creek Channel, 
which maintains moisture from August to June and a unit in the 
northeastern portion of the refuge that is wet for approximately 10 
months of the year (Dave Hardt pers.comm.). The Kern NWR has not 
completed a Comprehensive Conservation Plan (CCP) for the refuge. A 
draft plan is scheduled to be available to the public and a final CCP 
completed prior to October, 2004. Once the draft CCP is available to 
the public, an internal section 7 review will take place and an 
evaluation of effects of the plan on the shrew will be determined.
    Kern NWR has 1,102 acres of wetland communities on the 
approximately 10,618 acre refuge. Much of this wetland acreage is 
seasonally flooded. Dominant plants included bulrushes (Scirpus sp.), 
cattails (Typha sp.), rushes (Juncus sp.), spike rush (Heleocharis 
palustris), and arrowhead (Sagittaria longiloba). Riparian areas next 
to creeks and sloughs comprised approximately 125 acres, less than 1 
percent of the refuge. Fremont cottonwoods (Populus fremontii), and 
various species of willows (Salix spp.) are the dominant woody plants 
in riparian areas. Other plant communities on the Refuge that support 
shrews are Valley iodine bush scrub, dominated by iodine bush 
(Allenrolfea occidentalis), suaeda (Suaeda sp.), alkali heath 
(Frankenia salina), and salt-cedar scrub dominated by Tamarix sp. (salt 
cedar). Both of these communities occupy sites with moist, alkaline 
soils. Iodine bush scrub often has poorly drained soils, the first few 
inches of which are often dry during the long, hot season. This unit is 
essential to the conservation of the species because it represents one 
of five remaining areas known to support an extant population of the 
shrew that also contains the PCE's.

Unit 2: Goose Lake Unit

    The Goose Lake Unit, consisting of 1,277 ac (517 ha) and located 
about 10 miles south of Kern NWR, is the historic lake bed of Goose 
Lake. The Goose Lake area consists of approximately 4,000 acres of 
former marshes and wetlands and over 4,000 acres of upland communities. 
Goose Lake is managed by the Semitropic Water District as a ground-
water recharge basin. There are currently no conservation agreements 
covering this land. The Goose Lake Unit is found south of Kern National 
Wildlife Refuge in northwestern Kern County. Shrew habitat in this unit 
has experienced widespread losses due to the diversion of water for 
agricultural purposes. This unit is essential to the conservation of 
the species because it represents one of five remaining areas known to 
support an extant population of the shrew that also contains the PCE's.
    Water from the California Aqueduct is transferred to the Goose Lake 
area in years of abundant water, where it is allowed to recharge the 
aquifer that is used for irrigated agriculture. Small, degraded 
examples of freshwater marsh and riparian communities still exist in 
the area of Goose Lake and Jerry Slough, which is a portion of 
historical Goose Slough, an overflow channel of the Kern River. 
Suitable habitat for shrews is found in the Goose Lake area (Germano 
and Tabor 1993).
    Gooselake Holding Co., a partnership comprised of members of the 
Tracy family and Buttonwillow Land and Cattle Company, in cooperation 
with Ducks Unlimited (DU), Inc. and Semitropic Water Storage District 
(Semitropic WSD), is proposing to create and restore habitat for 
waterfowl in the project area, and restoration activities are currently 
planned for the area and funded through grants under the North American 
Wetlands Conservation Act (NAWCA). This project will enhance existing 
sloughs and create new water delivery conveyance systems to provide a 
more efficient and permanent water supply to existing wetlands on the 
two properties. The wetlands within the project site generally lie 
within a trough on the southeastern shores of historic Goose Lake. A 
water conveyance system will provide wetland managers with a more 
dependable water supply to existing wetland basins and will help to 
convey excess agricultural field run-off water to the eastern portion 
of Goose Lake during flood events or periods of excess run-off water 
discharges. The current water regime for the Goose Lake area is driven 
by supplies from agricultural activity southeast of Goose Lake, where 

[[Page 51424]]

water is mostly from wells. Most of the water supplied to the wetlands 
located on the eastern portion of Goose Lake comes from tail water 
generated from this agriculture, but in some years, well water is 
occasionally added into the canal system and delivered to the wetlands.
    In the Southwest part of the Lake, Semitropic WSD has a spillway 
which is occasionally used in times of flooding. In the northwestern 
portion of the lake, the district periodically floods wetlands for duck 
hunting. Currently, much floodwater is lost to the district. Through an 
agreement being prepared between Semitropic WSD and Gooselake Holding 
Company, floodwater will be captured and stored on his property from 
March through April (or May). Later these waters will be pumped into 
the Semitropic WSD system and delivered to their customers. In exchange 
for this storage, the district will partially subsidize the landowner's 
water cost for his wetlands. The result of this will be a significant 
increase in the duration and area of wetlands flooded each year.
    Many of the ditches on the property east of Gooselake are in need 
of repair. The project will repair much of the water delivery system, 
allowing the landowner to improve water conveyance. Enhancements 
proposed at Goose Lake would substantially increase the quantity and 
quality of shrew habitat on the site. The principle periods that water 
will be conveyed through the perimeter sloughs will be during the 
agricultural irrigation season (approximately June through November) 
and during stochastic flooding events between November and July. It is 
possible, depending on flows in Jerry Slough caused by the above 
sources, that water might be conveyed through the perimeter sloughs 
during any time of the year. Wetland basins will be managed to provide 
optimal habitat conditions for migrating and wintering waterfowl. This 
involves flooding seasonal and semi-permanent wetland basins beginning 
in September and maintaining this wetland habitat through March.
    Dominant vegetation along the slough channels includes frankenia 
(Frankenia), iodine bush, and seepweed (Suaeda). The northern portion 
of the unit consists of scattered mature Allenrolfea shrubs in an area 
that has relatively moist soils. The southern portion of the unit is 
characterized by a dense mat of saltgrass (Distichilis) and clumps of 
Allenrolfea and Suaeda. A portion of the unit currently exhibits 
inundation and saturation during the winter months. Dominant vegetation 
in these areas includes cattails, bulrushes, Juncus sp., and saltgrass.
    Approximately 6.5 acres of potential shrew habitat located along 
the Goose Lake sloughs were surveyed in January 2004 (ESRP 2004). Five 
shrews were captured during the survey effort with the greatest 
distance between capture sites being 1.6 miles, indicating that shrews 
are widely distributed on the site.

Unit 3: Kern Fan Water Recharge Unit

    The Kern Fan Water Recharge Area Unit consists of 2,687 ac (1,088 
ha). The unit is within the Kern Fan Water Recharge Area (2,800 ac 
(1,133 ha)), which is owned by the City of Bakersfield. The unit is 
located adjacent to the Kern Water Bank, a 19,000 ac (7,689 ha) area 
owned by the Kern Water Bank Authority. Portions of the recharge area 
are flooded sporadically, forming fragmented wetland communities 
throughout the area.
    Narrow strips of riparian communities exist on both sides of the 
Kern River. The plant communities of the Kern Fan Water Recharge Area 
include a mixture of Valley saltbush scrub, Great Valley mesquite 
shrub, and some remnant riparian areas. The Valley saltbush scrub is 
characterized by the presence of Valley saltbush (Atriplex polycarpa), 
alkali heath, goldenbush (Isocoma acradenia), and common spikeweed 
(Hemizonia pungens). The soils in this area are sandy to loamy with no 
surface alkalinity. This community seems to intergrade with the Great 
Valley mesquite scrub plant community. This is an open scrubland 
dominated by mesquite (Prosopis juliflora), Valley saltbush, and 
goldenbush. The soils also are sandy loams of alluvial origin. Remnant 
riparian areas are found throughout the water bank area, but are mainly 
located near the main channel of the Kern River and are dominated by 
Fremont cottonwood, willow species (Salix spp.), stinging nettle 
(Urtica dioica), creeping wild rye (Leymus triticoides), mulefat 
(Baccharis salicifolia), and narrow-leaved milkweed (Asclepias 
    Dominant species found in the trapping locations included Fremont 
cottonwood, stinging nettle, creeping wild rye, and salt grass. The 
areas under the cottonwoods are normally thick with leaf litter or with 
creeping wild rye, which tends to grow in thick mats. Some low-lying 
land has little vegetation and mostly bare soil, whereas some of the 
higher sites contained lush patches of creeping wild rye.
    Willow species, stinging nettles, and a thick mat of creeping wild 
rye dominate the location of the captured shrews. This site had no 
standing water at the time of the capture within 100m of the location 
where the shrews were caught. Water diversion projects are the greatest 
threats to shrews within this unit. This unit is essential to the 
conservation of the species because it represents one of five remaining 
areas known to support an extant population of the shrew that also 
contains the PCE's. The unit is adjacent to, but not included within, 
the Kern Water Bank Habitat Conservation Plan/Natural Community 
Conservation Plan (Kern Water Bank HCP/NCCP) permit area (Kern Water 
Bank Authority 1997).

Unit 4: Coles Levee Unit

    The Coles Levee Unit is approximately 214 ac (87 ha) in Kern 
County, owned by Aera Energy. The area was established as a mitigation 
bank in 1992, in an agreement between Atlantic Richfield Company (ARCO) 
and California Department of Fish and Game. The area serves as a 
mitigation bank to compensate for take of habitats for listed upland 
species. The site is mostly highly degraded upland saltbush and mequite 
scrub, and interlaces with slough channels for the historical Kern 
River fan where it entered Buena Vista Lake from the northeast. Most 
slough channels are dry except in times of heavy flooding, every 
several years. The area contains approximately 2 mi (3.2 km) of much 
degraded riparian communities along the Kern River.
    Located in the unit is a human-made pond that was formed less than 
5 years ago. Water from the adjacent oil fields is constantly being 
pumped into the basin. Vegetation includes bulrushes, stinging nettle, 
mulefat, salt grass, quailbush (Atriplex lentiformis), and poison 
hemlock (Conium maculatum). There are a few willows and Fremont 
cottonwoods scattered throughout the area. This site runs parallel to 
the Kern River bed.
    This unit is essential to the conservation of the species because 
it represents one of five remaining areas known to support an extant 
population of the shrew that also contains the PCE's. An HCP was issued 
for the Coles Levee Ecological Preserve Area. The HCP permit expired 
when ARCO sold the property to the current owner and the permit was not 

Unit 5: Kern Lake Unit

    The Kern Lake Unit is approximately 90 acres (36 ha) and is found 
in the southern portion of the San Joaquin Valley in southwestern Kern 
County, approximately 16 miles south of Bakersfield. This unit lies 
between Hwy 99 and Interstate 5, south of Herring

[[Page 51425]]

Road near the New Rim Ditch. The moisture regime for shrew habitat in 
this unit is maintained by agricultural runoff from the New Rim ditch. 
This unit is essential to the conservation of the species because it 
represents one of five remaining areas known to support an extant 
population of the shrew that also contains the PCE's. The Kern Lake 
area was formerly managed by the Nature Conservancy for the Boswell 
Corporation, and was once thought to contain the last remaining 
population of the shrew. This area does not have a conservation 
easement and is managed by the landowners. We are unaware of any plans 
to develop this site.
    The Kern Lake Unit is situated at the edge of the historic Kern 
Lake. Since the advent of reclamation and development, the surrounding 
lands have seen intensive cattle and sheep ranching and, more recently, 
cotton and alfalfa farming. While Kern Lake is now only a dry lake bed, 
the unit's ``Gator Pond'' site and wet alkali meadows stand as unique 
reminders of their biological heritage.
    A portion of the run-off from the surrounding hills travels through 
underground aquifers, surfacing as artesian springs at Gator Pond. The 
heavy clay soils support a distinctive assemblage of native species. An 
island of native vegetation situated among a sea of cotton fields, this 
Unit contains three ecologically significant natural communities: 
Freshwater marsh, alkali meadow, and iodine bush scrub. Gator Pond, in 
the sanctuary's eastern quarter, lies near the shoreline of the 
historic Kern Lake.
    Shrews were discovered at the Kern Lake Unit in 1986 near a 
community of saltbushes and saltgrass. In 1988 and 1989, 25 shrews were 
captured in low-lying, riparian and/or wetland habitats with an 
overstory of cottonwoods and willows, abundant ground litter, and moist 
soil (Center for Conservation Biology 1990).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist the 
agency in eliminating conflicts that may be caused by the proposed 
action. The conservation recommendations in a conference report are 
advisory. If a species is listed or critical habitat is designated, 
section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that the permitted actions do not destroy or 
adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
an opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the shrew or its 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or 
some other Federal action, including funding (e.g., Federal Highway 
Administration or Federal Emergency Management Agency funding), will 
also continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non-Federal and private lands that are not federally funded, 
authorized, or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat to the shrew. We note that such activities may also jeopardize 
the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal

[[Page 51426]]

agencies from jeopardizing the continued existence of a listed species 
or destroying or adversely modifying the listed species' critical 
habitat. Actions likely to ``jeopardize the continued existence'' of a 
species are those that would appreciably reduce the likelihood of the 
species' survival and recovery. Actions likely to ``destroy or 
adversely modify'' critical habitat are those that would appreciably 
reduce the value of critical habitat to the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would often result in jeopardy to the species 
concerned when the area of the proposed action is occupied by the 
species concerned.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
include, but are not limited to:
    (1) Regulation of activities affecting waters of the United States 
by the U.S. Army Corps of Engineers under section 404 of the Clean 
Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by any Federal agency;
    (3) Road construction and maintenance, right-of-way designation, 
and regulation funded or permitted by the Federal Highway 
    (4) Voluntary conservation measures by private landowners funded by 
the Natural Resources Conservation Service;
    (5) Regulation of airport improvement activities by the Federal 
Aviation Administration;
    (6) Licensing of construction of communication sites by the Federal 
Communications Commission; and,
    (7) Funding of activities by the U.S. Environmental Protection 
Agency, Department of Energy, Federal Emergency Management Agency, 
Federal Highway Administration, or any other Federal agency.
    All lands proposed for designation as critical habitat are within 
the historical geographic area occupied by the species, and are likely 
to be used by the shrew whether for foraging, breeding, growth of 
juveniles, dispersal, migration, genetic exchange, or sheltering. We 
consider all lands included in this designation to be essential to the 
survival of the species. Federal agencies already consult with us on 
activities in areas currently occupied by the species or if the species 
may be affected by the action to ensure that their actions do not 
jeopardize the continued existence of the species. Therefore, we 
believe that the designation of critical habitat is not likely to 
result in a significant regulatory burden above that already in place 
due to the presence of the listed species. Few additional consultations 
are likely to be conducted due to the designation of critical habitat.

Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species and (ii) which may require special 
management considerations and protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential for the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species that do not require special management or 
protection also are not, by definition, critical habitat. To determine 
whether an area requires special management, we first determine if the 
essential features located there generally require special management 
to address applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    We consider an existing, current plan to provide adequate 
management or protection if it meets three criteria: (1) The plan is 
complete and provides a conservation benefit to the species (i.e., the 
plan must maintain or provide for an increase in the species' 
population, or the enhancement or restoration of its habitat within the 
area covered by the plan); (2) the plan provides assurances that the 
conservation management strategies and actions will be implemented 
(i.e., those responsible for implementing the plan are capable of 
accomplishing the objectives, have an implementation schedule, and 
adequate funding for implementing the management plan); and (3) the 
plan provides assurances that the conservation strategies and measures 
will be effective (i.e., it identifies biological goals, has provisions 
for monitoring and reporting progress, and is of a duration sufficient 
to substantially implement the plan and achieve the plan's goals and 
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations, we use the provisions 
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those 
specific areas that we are considering proposing to designate as 
critical habitat, as well as for those areas that are formally proposed 
for designation as critical habitat. Lands we have found that do not 
meet the definition of critical habitat under section 3(5)(A), or have 
been excluded pursuant to section 4(b)(2), include those covered by the 
following types of plans if they provide assurances that the 
conservation measures they outline will be implemented and effective: 
(1) Legally operative HCPs that cover the species, (2) draft HCPs that 
cover the species and have undergone public review and comment (i.e., 
pending HCPs), (3) Tribal conservation plans that cover the species, 
(4) State conservation plans that cover the species, and (5) National 
Wildlife Refuge System Comprehensive Conservation Plans.
    Pursuant to section 4(b)(2) of the Act, we must consider relevant 
impacts in addition to economic ones. We determined that the lands 
within the designation of critical habitat for the shrew are not owned 
or managed by the Department of Defense, there are currently no habitat 
conservation plans for the shrew, and the designation does not include 
any Tribal lands or trust resources.
    The Coles Levee Ecological Preserve area was covered under a 
previous HCP; however, the permit has expired (see Coles Levee unit 4). 
In addition the permit did not cover the shrew. The area is currently 
owned by Aera Energy and serves as a mitigation bank to compensate for 
take of habitats for listed upland species. Coles Levee does have a 
recorded easement; however the easement does not provide any means for 
protection of the shrew. Should information become available regarding 
the protection of the lands within the unit, these lands may be 
excluded from

[[Page 51427]]

the designation if they meet our criteria identified above for 
    The Kern Fan Water Recharge Area unit (see unit 5) is owned by the 
City of Bakersfield as a groundwater recharge zone. The unit is 
adjacent to but not included within the Kern Water Bank Habitat 
Conservation Plan/Natural Community Conservation Plan (Kern Water Bank 
HCP/NCCP) permit area (Kern Water Bank Authority 1997). The Kern Water 
Bank Authority has requested an expansion of the permit area for the 
currently approved HCP/NCCP but the expansion does not include the 
proposed critical habitat area. As a result, the Kern Fan Water 
Recharge Area unit would not be excluded in the final critical habitat 
designation unless the current land owners are able to provide 
assurances that conservation measures for the shrew will be implemented 
and effective.
    An area on the Kern NWR is also included in this proposed 
designation (see units 2a and 2b). The Comprehensive Conservation Plan 
(CCP) for the Kern NWR has not been completed and has not gone through 
a section 7 consultation for activities which may affect the shrew. The 
draft CCP for the Kern and Pixley NWRs was released for public comment 
June, 2004 and a final CCP is scheduled for release by October, 2004. 
Should a final CCP be approved and the CCP be evaluated for effects to 
the shrew with a finding of no effect or not likely to adversely 
affect, the areas on the Kern NWR would be excluded in the final 
critical habitat designation, provided that there are adequate 
assurances that the conservation measures for the shrew in the CCP and 
the BO for the CCP will be implemented and effective.
    Located about 10 miles south of Kern NWR is the historic lake bed 
of Goose Lake. The Goose Lake area consists of approximately 4,000 ac 
(1,618 ha) of former marshes and wetlands and over 4,000 ac (1,618 ha) 
of upland communities. The proposed Goose Lake unit consists of 2,605 
ac (1,054 ha) within this area (see unit 2). Goose Lake is managed by 
the Semitropic Water District as a ground-water recharge basin. 
Currently there are no conservation agreements covering this land. 
However, the Gooselake Holding Co., in cooperation with DU Inc., 
Semitropic WSD, and the U.S. Fish and Wildlife Service through the 
Joint Venture Program is proposing the Goose Lake Wetland Project to 
create and restore habitat for waterfowl in the project area. The 
proposed project has not completed a section 7 consultation. Should the 
proposed project complete a section 7 consultation and be evaluated for 
effects to the shrew, the areas on the Goose Lake unit may be excluded 
in the final critical habitat designation provided assurances that the 
conservation measures for the species will be implemented and 
effective. The project includes restoration activities that are funded 
through grants under the NAWCA. This project will enhance existing 
sloughs and create new water delivery conveyance systems to provide a 
more efficient and permanent water supply to existing wetlands on the 
two properties.
    We anticipate no impact to national security, Tribal lands, 
partnerships, or habitat conservation plans from this critical habitat 
designation. Based on the best available information, we believe that 
all of these units are essential for the conservation of this species. 
We have found no areas for which the benefits of exclusion outweigh the 
benefits of inclusion, and so have not proposed to exclude any areas 
from this proposed designation of critical habitat for the shrew. 
However, as noted previously, there are a number of pending 
conservation actions for proposed areas which, if they reach a 
sufficient state of completion, might warrant exclusion from the final 

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for the shrew is being prepared. We will announce the availability of 
the draft economic analysis as soon as it is completed, at which time 
we will seek public review and comment. At that time, copies of the 
draft economic analysis will be available for downloading from the 
Internet at http://sacramento.fws.gov, or by contacting the Sacramento 

Fish and Wildlife Office directly (see ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 

Public Hearings

    We will hold a public hearing on Thursday, September 30, 2004 at 
the DoubleTree Hotel, 3100 Camino del Rio Court, Bakersfield, 
California. The public hearing will include two sessions: 1 p.m. until 
3 p.m. and 6 p.m. until 8 p.m. Registration for the hearings will begin 
at 12:30 p.m. for the afternoon session and at 5:30 p.m. for the 
evening session. Further information on the public hearing can be 
obtained from our Web site at http://sacramento.fws.gov, or by 

contacting the Sacramento Fish and Wildlife Office directly (see 
ADDRESSES section).

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? (5) What 
else could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: Exsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

    This document has not been reviewed by the Office of Management and 
Budget (OMB), in accordance with Executive Order 12866. OMB makes the 
final determination of significance under Executive Order 12866. We are 
preparing a draft economic analysis of this proposed action, which will 
be available for public comment, to determine the economic consequences 
of designating the specific areas as critical habitat. OMB may review 

[[Page 51428]]

document and the draft economic analysis, when the latter is available 
for public comment.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on section 7 consultations.
    The availability of the draft economic analysis will be announced 
in the Federal Register and in local newspapers so that it is available 
for public review and comments.

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 effects 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. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA 
and E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation for an additional 60 
days. The Service will include with the notice of availability, as 
appropriate, an initial regulatory flexibility analysis or a 
certification that the rule will not have a significant economic impact 
on a substantial number of small entities accompanied by the factual 
basis for that determination. The Service has concluded that deferring 
the RFA finding until completion of the draft economic analysis is 
necessary to meet the purposes and requirements of the RFA. Deferring 
the RFA finding in this manner will ensure that the Service makes a 
sufficiently informed determination based on adequate economic 
information and provides the necessary opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for the shrew is not a 
significant regulatory action under Executive Order 12866, and it is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy 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, 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; 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 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. While non-Federal entities who 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, 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) We do not believe that this rule will significantly or uniquely 
affect small governments. A Small Government Agency Plan is not 
required. There are no state lands in the proposed designation. 
Although city and county lands comprise about 58 percent of the total 
proposed designation, this rule proposes to designate only 2,682 acres 
on local lands. Small governments will not be affected at all unless 
they proposed an action requiring Federal funds, permits or other 
authorization. Any such activity will require that the involved Federal 
agency ensure that the action is not likely to adversely modify or 
destroy designated critical habitat. However, as discussed above, 
Federal agencies are currently required to ensure that such activity is 
not likely to jeopardize the species, and no further regulatory impacts 
from this proposed designation of critical habitat are anticipated. We 
will, however, further evaluate this issue as we conduct our economic 
analysis and revise this assessment if appropriate.


    In accordance with Executive Order 13132, the rule does not have 
significant federalism effects. A federalism

[[Page 51429]]

assessment is not required. In keeping with DOI policy, we requested 
information from, and coordinated development of, this proposed 
critical habitat designation with appropriate State resource agencies 
in California. The designation of critical habitat in areas currently 
occupied by the shrew imposes no additional restrictions to those 
currently in place and, therefore, has little incremental impact on 
State and local governments and their activities. The designation may 
have some benefit to these governments in that the areas essential to 
the conservation of the species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the survival 
of the species are specifically identified. While making this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist these local governments 
in long-range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Endangered Species Act. This 
proposed rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the shrew.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands essential for the conservation of the shrew. 
Therefore, proposed designation of critical habitat for the shrew has 
not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Sacramento Fish and 
Wildlife Office (see ADDRESSES section).


    The primary author of this package is the Sacramento Fish and 
Wildlife Office staff.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Proposed Regulation 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:


    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. In Sec.  17.11(a), revise the entry for ``Shrew, Buena Vista 
Lake'' under ``MAMMALS'' to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                       Species                                                 Vertebrate
------------------------------------------------------                      population where                      When         Critical        Special
                                                         Historic  range      endangered or        Status        listed         habitat         rules
           Common name              Scientific name                            threatened

                                                                      * * * * * * *
Shrew, Buena Vista Lake.........  Sorex ornatus        U.S.A. (CA).......  Entire............  E                      725  17.95(a)                   NA

                                                                      * * * * * * *

* * * * *
    3. In Sec.  17.95, amend paragraph (a)(2) by adding an entry for 
``Buena Vista Lake shrew'' in the same alphabetical order as this 
species appears in the table in Sec.  17.11 to read as follows:

Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Buena Vista Lake Shrew (Sorex ornatus relictus)
    (1) Critical habitat units are depicted for Kern County, 
California, on the maps below.
    (2) The primary constituent elements of critical habitat for the 
Buena Vista Lake shrew are the habitat components that provide:
    (i) Riparian or wetland communities supporting a complex vegetative 
structure with a thick cover of leaf litter or dense mats of low-lying 
vegetation; and
    (ii) Suitable moisture supplied by a shallow water table, 
irrigation, or proximity to permanent or semi-permanent water; and
    (iii) A consistent and diverse supply of prey.

[[Page 51430]]

    (3) Critical habitat does not include existing features and 
structures, such as buildings, aqueducts, airports, roads, and other 
developed areas not containing one or more of the primary constituent 
    (4) Data layers defining map units were created on a base of USGS 
7.5' quadrangles, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) coordinates.
    (5) Note: Map 1 (index map) follows:

[[Page 51431]]


    (6) Unit 1a: Kern National Wildlife Refuge, Kern County, 
    (i) From USGS 1:24,000 quadrangle maps Hacienda Ranch, California, 

[[Page 51432]]

Lost Hills NE, California, land bounded by the following UTM 11 NAD 27 
coordinates (E, N): 261370, 3955645; 261384, 3955731; 261457, 3955912; 
261502, 3955985; 261534, 3956044; 261643, 3955967; 261679, 3955949; 
261775, 3955967; 261797, 3955981; 261784, 3956017; 261779, 3956062; 
261802, 3956149; 261829, 3956249; 261815, 3956326; 261788, 3956417; 
261784, 3956621; 261734, 3956675; 261711, 3956716; 261716, 3956762; 
261756, 3956784; 261788, 3956825; 261793, 3956862; 261797, 3957157; 
261806, 3957170; 261825, 3957175; 261943, 3957120; 261993, 3957107; 
262179, 3957093; 262297, 3957089; 262315, 3957071; 262424, 3956857; 
262469, 3956771; 262479, 3956739; 262479, 3956707; 262465, 3956685; 
262460, 3956671; 262460, 3956644; 262465, 3956607; 262469, 3956566; 
262479, 3956535; 262465, 3956494; 262451, 3956453; 262447, 3956417; 
262447, 3956385; 262460, 3956367; 262488, 3956362; 262519, 3956385; 
262551, 3956417; 262598, 3956482; 262561, 3956219; 262543, 3956086; 
262536, 3956035; 262456, 3955981; 262429, 3955903; 262397, 3955881; 
262347, 3955858; 262320, 3955844; 262265, 3955822; 262224, 3955799; 
262197, 3955776; 262202, 3955763; 262220, 3955744; 262256, 3955717; 
262288, 3955704; 262383, 3955694; 262438, 3955690; 262487, 3955684; 
262486, 3955677; 262477, 3955610; 261938, 3955627; 261370, 3955645; 
returning to 261370, 3955645.
    (7) Unit 1b: Kern National Wildlife Refuge, Kern County, 
    (i) From USGS 1:24,000 quadrangle map Lost Hills NW, California, 
and Lost Hills NE, California; land bounded by the following UTM 11 NAD 
27 coordinates (E, N): 263287, 3957189; 263287, 3957174; 263304, 
3957163; 263343, 3957160; 263390, 3957139; 263399, 3957115; 263411, 
3957100; 263438, 3957086; 263459, 3957050; 263464, 3957023; 263464, 
3957003; 263506, 3957003; 263553, 3956997; 263589, 3956964; 263607, 
3956929; 263613, 3956887; 263607, 3956834; 263613, 3956801; 263627, 
3956748; 263621, 3956686; 263571, 3956638; 263547, 3956617; 263550, 
3956573; 263539, 3956532; 263500, 3956505; 263453, 3956490; 263402, 
3956502; 263390, 3956511; 263382, 3956463; 263364, 3956416; 263328, 
3956381; 263287, 3956363; 263236, 3956360; 263207, 3956354; 263180, 
3956321; 263147, 3956271; 263097, 3956241; 263053, 3956232; 262988, 
3956226; 262931, 3956250; 262878, 3956283; 262822, 3956309; 262786, 
3956318; 262745, 3956315; 262688, 3956318; 262662, 3956321; 262650, 
3956327; 262674, 3956499; 262715, 3956472; 262748, 3956455; 262783, 
3956458; 262816, 3956458; 262854, 3956443; 262899, 3956428; 262961, 
3956389; 263005, 3956372; 263053, 3956386; 263091, 3956431; 263142, 
3956484; 263195, 3956526; 263239, 3956520; 263254, 3956502; 263272, 
3956540; 263296, 3956603; 263334, 3956647; 263384, 3956662; 263423, 
3956647; 263423, 3956674; 263450, 3956703; 263473, 3956727; 263482, 
3956757; 263467, 3956780; 263467, 3956810; 263470, 3956831; 263473, 
3956854; 263461, 3956860; 263426, 3956866; 263384, 3956869; 263340, 
3956902; 263319, 3956949; 263310, 3956976; 263293, 3957006; 263275, 
3957020; 263248, 3957041; 263207, 3957047; 263162, 3957056; 263136, 
3957080; 263115, 3957136; 263109, 3957171; 263109, 3957195; 263287, 
3957189; returning to 263287, 3957189.
    (8) Unit 1c: Kern National Wildlife Refuge, Kern County, 
    (i) From USGS 1:24,000 quadrangle map Lost Hills NW, California, 
and Lost Hills NE, California; land bounded by the following UTM 11 NAD 
27 coordinates (E, N): 262564, 3955705; 262575, 3955694; 262592, 
3955680; 262623, 3955677; 262864, 3955666; 263540, 3955646; 264029, 
3955635; 264946, 3955607; 266049, 3955565; 266680, 3955534; 266700, 
3955531; 266714, 3955523; 266714, 3955495; 266588, 3955497; 266243, 
3955511; 264214, 3955584; 262687, 3955626; 262572, 3955629; 262528, 
3955647; 262530, 3955660; 262533, 3955685; 262536, 3955706; 262564, 
3955705; returning to ): 262564, 3955705.
    (ii) Note: Map 2 (Unit 1a, 1b, and 1c) follows:

[[Page 51433]]


    (9) Unit 2: Goose Lake, Kern County, California.
    (i) From USGS 1:24,000 quadrangle map Semitropic, California, land 
bounded by the following UTM 11 NAD 27 coordinates (E, N): 269741, 

[[Page 51434]]

269841, 3939090; 269931, 3939074; 270005, 3939064; 270065, 3939048; 
270081, 3939030; 270117, 3939010; 270185, 3938968; 270273, 3938860; 
270351, 3938749; 270403, 3938691; 270443, 3938671; 270484, 3938649; 
270502, 3938621; 270544, 3938573; 270598, 3938547; 270660, 3938527; 
270782, 3938449; 270824, 3938423; 270848, 3938423; 270878, 3938431; 
270930, 3938449; 271005, 3938452; 271020, 3938439; 271064, 3938409; 
271120, 3938353; 271186, 3938269; 271260, 3938173; 271286, 3938125; 
271286, 3938079; 271278, 3938035; 271288, 3937959; 271318, 3937905; 
271334, 3937887; 271392, 3937893; 271444, 3937905; 271556, 3937957; 
271578, 3937939; 271623, 3937907; 271635, 3937885; 271639, 3937855; 
271653, 3937819; 271667, 3937785; 271685, 3937767; 271727, 3937751; 
271749, 3937735; 271761, 3937702; 271761, 3937658; 271763, 3937582; 
271765, 3937570; 271777, 3937548; 271793, 3937526; 271843, 3937504; 
271905, 3937470; 272025, 3937400; 272087, 3937372; 272123, 3937328; 
272141, 3937312; 272143, 3937294; 272139, 3937274; 272125, 3937250; 
272091, 3937212; 271995, 3937122; 271931, 3937068; 271911, 3937040; 
271901, 3937004; 271901, 3936914; 271901, 3936848; 271903, 3936802; 
271907, 3936750; 271915, 3936716; 271935, 3936700; 271969, 3936702; 
272009, 3936706; 272037, 3936694; 272047, 3936674; 272061, 3936638; 
272075, 3936580; 272067, 3936533; 272065, 3936457; 272083, 3936371; 
272089, 3936307; 272085, 3936191; 272067, 3936127; 272067, 3936087; 
272101, 3936007; 272181, 3935911; 272241, 3935853; 272379, 3935749; 
272429, 3935687; 272504, 3935603; 272525, 3935587; 272573, 3935555; 
272625, 3935533; 272669, 3935517; 272703, 3935479; 272729, 3935427; 
272763, 3935380; 272810, 3935344; 272858, 3935316; 272864, 3935290; 
272860, 3935258; 272822, 3935212; 272790, 3935148; 272788, 3935086; 
272808, 3935024; 272802, 3934974; 272814, 3934916; 272882, 3934818; 
272920, 3934764; 272964, 3934686; 272998, 3934652; 273032, 3934632; 
273064, 3934608; 273084, 3934508; 273090, 3934444; 273126, 3934370; 
273172, 3934302; 273216, 3934257; 273234, 3934231; 273242, 3934185; 
273244, 3934139; 273228, 3934101; 273208, 3934081; 273158, 3934055; 
273122, 3934045; 273076, 3934041; 273018, 3934049; 272956, 3934067; 
272940, 3934071; 272890, 3934081; 272870, 3934079; 272850, 3934077; 
272832, 3934055; 272824, 3934035; 272828, 3933995; 272832, 3933957; 
272850, 3933923; 272876, 3933881; 272912, 3933819; 272922, 3933791; 
272946, 3933753; 273012, 3933641; 273014, 3933611; 273004, 3933579; 
272980, 3933575; 272946, 3933579; 272916, 3933593; 272898, 3933597; 
272854, 3933621; 272818, 3933637; 272800, 3933637; 272788, 3933625; 
272780, 3933601; 272763, 3933575; 272743, 3933571; 272705, 3933585; 
272665, 3933669; 272445, 3933945; 272411, 3933951; 272379, 3933963; 
272317, 3933995; 272227, 3934081; 272177, 3934169; 272139, 3934245; 
272135, 3934294; 272115, 3934362; 272063, 3934402; 272011, 3934470; 
271817, 3934758; 271739, 3934912; 271711, 3935000; 271663, 3935054; 
271596, 3935112; 271514, 3935154; 271470, 3935200; 271364, 3935298; 
271310, 3935413; 271296, 3935477; 271304, 3935523; 271304, 3935571; 
271254, 3935639; 271156, 3935723; 271082, 3935797; 271040, 3935817; 
271006, 3935859; 270976, 3935873; 270910, 3935887; 270824, 3935911; 
270712, 3935979; 270624, 3936038; 270598, 3936089; 270550, 3936181; 
270528, 3936215; 270488, 3936249; 270419, 3936275; 270327, 3936295; 
270265, 3936325; 270199, 3936375; 270135, 3936421; 270089, 3936463; 
270033, 3936493; 269891, 3936500; 269745, 3936506; 269603, 3936566; 
269575, 3936586; 269523, 3936650; 269503, 3936684; 269513, 3936714; 
269557, 3936768; 269633, 3936788; 269761, 3936784; 269835, 3936788; 
270035, 3936782; 270071, 3936778; 270153, 3936728; 270285, 3936688; 
270417, 3936680; 270550, 3936690; 270716, 3936690; 271054, 3936732; 
271166, 3936772; 271242, 3936820; 271312, 3936896; 271324, 3936926; 
271314, 3936962; 271300, 3937002; 271266, 3937064; 271260, 3937094; 
271278, 3937156; 271290, 3937256; 271286, 3937368; 271278, 3937422; 
271222, 3937530; 271164, 3937596; 271150, 3937632; 271136, 3937652; 
271084, 3937668; 271038, 3937699; 270979, 3937746; 270981, 3937783; 
270987, 3937969; 270960, 3938011; 270868, 3938143; 270728, 3938249; 
270692, 3938259; 270628, 3938259; 270606, 3938273; 270500, 3938387; 
270435, 3938483; 270401, 3938521; 270373, 3938543; 270315, 3938561; 
270287, 3938569; 270113, 3938769; 269941, 3938928; 269843, 3938962; 
269715, 3939032; 269585, 3939032; 269563, 3939032; 269543, 3939040; 
269533, 3939054; 269533, 3939074; 269543, 3939096; 269567, 3939110; 
269591, 3939120; 269621, 3939122; 269659, 3939144; 269685, 3939146; 
269709, 3939138; 269741, 3939122; returning to 269741, 3939122.
    (ii) Note: Map 3 (Unit 2) follows:

[[Page 51435]]


    (10) Unit 3: Kern Fan Water Recharge Area, Kern County, California.
    (i) From USGS 1:24,000 quadrangle maps Tupman, California, and 
Stevens, California, land bounded by the following UTM 11 NAD 27 

[[Page 51436]]

(E, N): 295516, 3908835; 295279, 3908837; 295290, 3909235; 295839, 
3909235; 295839, 3909605; 296123, 3909598; 296123, 3910008; 296939, 
3909995; 296945, 3910388; 297306, 3910388; 297306, 3910580; 298301, 
3910571; 298305, 3911170; 298614, 3911161; 298617, 3911357; 299013, 
3911357; 299021, 3911981; 300650, 3911934; 300666, 3912745; 301491, 
3912726; 301496, 3913131; 301878, 3913131; 301885, 3913492; 302639, 
3913467; 302689, 3913456; 302875, 3913452; 302953, 3913467; 303501, 
3913456; 303499, 3913377; 303346, 3913377; 303182, 3913345; 303096, 
3913310; 302950, 3913206; 302850, 3913113; 302800, 3913024; 302782, 
3912942; 302764, 3912860; 302686, 3912771; 302671, 3912700; 302664, 
3912300; 302261, 3912303; 302250, 3911900; 301850, 3911907; 301827, 
3910972; 301270, 3910731; 301149, 3910709; 300352, 3910586; 298760, 
3909525; 298405, 3909289; 298306, 3909259; 296918, 3909128; 295881, 
3909023; 295832, 3908998; 295780, 3908939; 295750, 3908877; 295710, 
3908847; 295653, 3908837; returning to 295516, 3908835.
    (ii) Note: Map 4 (Unit 3) follows:

[[Page 51437]]


    (11) Unit 4: Coles Levee Unit, Kern County, California.
    (i) From USGS 1:24,000 quadrangle maps Tupman, and Buena Vista 
Lakebed, California, land bounded by the following UTM 11 NAD 27

[[Page 51438]]

coordinates (E, N): 287308, 3908077; 287165, 3908138; 287172, 3908222; 
287285, 3908192; 287341, 3908153; 287414, 3908098; 287610, 3908020; 
287614, 3907949; 287624, 3907898; 287631, 3907847; 287668, 3907818; 
287716, 3907803; 287779, 3907811; 287843, 3907787; 287915, 3907750; 
288008, 3907711; 288058, 3907689; 288114, 3907658; 288160, 3907643; 
288138, 3907573; 288150, 3907533; 288182, 3907490; 288229, 3907431; 
288272, 3907372; 288298, 3907314; 288284, 3907242; 288348, 3907166; 
288396, 3907126; 288453, 3907045; 288530, 3906966; 288583, 3906909; 
288667, 3906812; 288705, 3906757; 288744, 3906700; 288796, 3906619; 
288848, 3906542; 288901, 3906392; 288938, 3906357; 288998, 3906330; 
289020, 3906301; 289045, 3906261; 289081, 3906173; 289115, 3906128; 
289131, 3906076; 289119, 3906028; 289135, 3906004; 289165, 3905928; 
289197, 3905879; 289271, 3905813; 289358, 3905761; 289389, 3905735; 
289480, 3905654; 289597, 3905561; 289758, 3905425; 289910, 3905291; 
290046, 3905162; 290070, 3905143; 290115, 3904972; 290125, 3904923; 
290185, 3904904; 290200, 3904868; 290206, 3904784; 290205, 3904694; 
290207, 3904637; 290218, 3904594; 290234, 3904560; 290251, 3904514; 
290244, 3904477; 290234, 3904437; 290242, 3904380; 290275, 3904275; 
290324, 3904182; 290376, 3904078; 290418, 3903999; 290467, 3903903; 
290499, 3903856; 290545, 3903769; 290575, 3903699; 290601, 3903641; 
290624, 3903595; 290673, 3903473; 290708, 3903444; 290705, 3903422; 
290695, 3903396; 290733, 3903335; 290771, 3903227; 290793, 3903070; 
290795, 3903016; 290802, 3902968; 290815, 3902899; 290812, 3902870; 
290794, 3902836; 290778, 3902637; 290775, 3902582; 290802, 3902553; 
290785, 3902492; 290764, 3902406; 290768, 3902275; 290782, 3902151; 
290776, 3902124; 290744, 3902068; 290668, 3901981; 290608, 3901920; 
290572, 3901811; 290459, 3901742; 290454, 3901756; 290386, 3901852; 
290407, 3901876; 290507, 3901957; 290601, 3902026; 290671, 3902088; 
290699, 3902164; 290699, 3902230; 290693, 3902301; 290694, 3902410; 
290690, 3902504; 290694, 3902638; 290701, 3902789; 290711, 3902878; 
290722, 3903028; 290722, 3903129; 290696, 3903214; 290677, 3903290; 
290619, 3903389; 290577, 3903475; 290495, 3903653; 290439, 3903768; 
290401, 3903848; 290347, 3903947; 290298, 3904071; 290224, 3904237; 
290169, 3904357; 290152, 3904432; 290141, 3904507; 290139, 3904575; 
290113, 3904653; 290087, 3904717; 290060, 3904773; 290050, 3904836; 
290030, 3904894; 290008, 3904975; 289979, 3905056; 289927, 3905163; 
289868, 3905242; 289805, 3905291; 289745, 3905342; 289684, 3905386; 
289617, 3905441; 289518, 3905517; 289397, 3905610; 289269, 3905708; 
289176, 3905781; 289124, 3905822; 289088, 3905884; 289068, 3905932; 
289055, 3905970; 289036, 3906012; 289029, 3906057; 289016, 3906107; 
289006, 3906162; 288994, 3906200; 288973, 3906236; 288940, 3906273; 
288835, 3906369; 288791, 3906415; 288729, 3906457; 288672, 3906513; 
288656, 3906561; 288651, 3906608; 288641, 3906669; 288619, 3906723; 
288598, 3906761; 288545, 3906827; 288415, 3906958; 288351, 3907026; 
288255, 3907123; 288204, 3907179; 288155, 3907233; 288109, 3907278; 
288080, 3907311; 288060, 3907340; 288028, 3907386; 287992, 3907412; 
287960, 3907420; 287893, 3907455; 287829, 3907486; 287774, 3907509; 
287709, 3907532; 287645, 3907569; 287613, 3907589; 287570, 3907640; 
287558, 3907682; 287537, 3907740; 287491, 3907756; 287471, 3907781; 
287449, 3907839; 287435, 3907900; 287419, 3907959; 287365, 3908021; 
returning to 287308, 3908077.
    (ii) Note: Map 5 (Unit 4) follows:

[[Page 51439]]


    (12) Unit 5: Kern Lake, Kern County, California.
    (i) From USGS 1:24,000 quadrangle map Coal Oil Canyon, California, 
land bounded by the following UTM 11 NAD 27 coordinates (E, N): 312996, 

[[Page 51440]]

312953, 3887034; 312911, 3887047; 312886, 3887054; 312657, 3887298; 
313456, 3887299; 313458, 3887806; 313823, 3887799; 313823, 3887314; 
313786, 3887267; 313696, 3887224; 313618, 3887189; 313491, 3887139; 
313363, 3887112; 313298, 3887107; 313231, 3887112; 313193, 3887142; 
313168, 3887157; 313136, 3887152; 313091, 3887112; 313056, 3887072; 
returning to 312996, 3887027.
    (ii) Note: Map 6 (Unit 5) follows:

[[Page 51441]]


[[Page 51442]]

* * * * *

    Dated: August 13, 2004.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-18988 Filed 8-18-04; 8:45 am]