[Federal Register: September 24, 2004 (Volume 69, Number 185)]
[Proposed Rules]
[Page 57250-57253]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24se04-27]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ07
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Gaura neomexicana ssp. coloradensis (Colorado
Butterfly Plant)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; extension of comment period and notice of
availability of draft economic analysis and draft environmental
assessment.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announce the
availability of a draft economic analysis and draft environmental
assessment for the proposed designation of critical habitat for Gaura
neomexicana ssp. coloradensis (hereafter referred to as ``Colorado
butterfly plant'') under the Endangered Species Act of 1973, as amended
(Act). In addition, we announce the extension of the comment period on
the proposed rule to designate critical habitat for the Colorado
butterfly plant.
DATES: We will accept all comments received on or before October 25,
2004. Any comments that we receive after the closing date may not be
considered in the final decision on this proposal.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposed rule, the draft economic analysis,
and the draft environmental assessment by any one of several methods:
(1) You may submit written comments and information to the Field
Supervisor, U.S. Fish and Wildlife Service, Wyoming Field Office, 4000
Airport Parkway, Cheyenne, Wyoming 82001, or by facsimile (307) 772-
2358.
(2) You may hand-deliver written comments to our office, at the
address given above.
(3) You may send comments by electronic mail (e-mail) to
fw6_cobutterflyplant@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 comments by the alternate methods mentioned above.
Comments and materials received, as well as supporting
documentation used in preparation of the proposed critical habitat
rule, will be available for public inspection, by appointment, during
normal business hours at the above address. You may obtain copies of
the draft economic analysis and draft environmental assessment for the
Colorado butterfly plant by contacting the Wyoming Field Office at the
above address. The draft economic analysis, draft environmental
assessment, and the proposed rule for critical habitat designation also
are available on the Internet at http://www.r6.fws.gov/species/plants/cobutterfly/.
In the event that our Internet connection is not
functional, please obtain copies of documents directly from the Wyoming
Fish and Wildlife Office.
FOR FURTHER INFORMATION CONTACT: Brian T. Kelly, Field Supervisor
(telephone (307) 772-2374; facsimile (307) 772-2358), Wyoming Field
Office, at the address listed above.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend any final action resulting from the proposed rule to be
as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific
[[Page 57251]]
community, industry, or any other interested party concerning the
economic analysis, the environmental analysis, or the proposed rule. 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 benefits of excluding outweigh benefits of including any
area as critical habitat;
(2) Specific information on the amount and distribution of Colorado
butterfly plant habitat and what habitat is essential to the
conservation of this species and why;
(3) Land use designations and current or planned activities in the
subject area and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families;
(5) Whether the economic analysis identifies all State and local
costs. If not, what costs are overlooked;
(6) Whether the economic analysis makes appropriate assumptions
regarding current practices and likely regulatory changes imposed as a
result of the designation of critical habitat;
(7) Whether the economic analysis correctly assesses the effect on
regional costs associated with land use controls that derive from the
designation;
(8) Whether the designation will result in disproportionate
economic impacts to specific areas that should be evaluated for
possible exclusion from the final designation;
(9) Whether the economic analysis appropriately identifies all
costs that could result from the designation;
(10) Whether the environmental analysis accurately reports the
environmental impact of designating critical habitat; and
(11) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concern and comments.
All comments and information submitted during the previous comment
period on the proposed rule need not be resubmitted. If you wish to
comment, you may submit your comments and materials concerning this
rule by any one of several methods (see ADDRESSES section). Please
submit Internet comments to fw6_cobutterflyplant@fws.gov and include
``Attn: Colorado Butterfly Plant Critical Habitat'' 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
Wyoming Field Office (see FOR FURTHER INFORMATION CONTACT section).
Our practice is to make comments, including names and home
addresses of respondents, available to the public. Individual
respondents may request that we withhold their home addresses from the
administrative record, which we will honor to the extent allowable by
law. There also may be circumstances in which we would withhold from
the administrative 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 address.
Background
Colorado butterfly plant is a member of the evening primrose family
and is a short-lived perennial herb with one to several reddish,
pubescent stems. It is a regional endemic restricted to Laramie and
Platte Counties in Wyoming, western Kimball County in Nebraska, and
Weld County in Colorado. Of the known populations of the Colorado
butterfly plant, the vast majority occur on private lands managed
primarily for agriculture and livestock. Haying and mowing at certain
times of the year, water development, land conversion for cultivation,
competition with exotic plants, non-selective use of herbicides, and
loss of habitat to urban development are the main threats to these
populations (Mountain West Environmental Services 1985, Marriott 1987,
Fertig 1994).
On October 18, 2000, the Colorado butterfly plant was designated as
threatened throughout its entire range under the Act (65 FR 62302). On
October 4, 2000, the Center for Biological Diversity and the
Biodiversity Legal Foundation filed a complaint in the Federal District
Court for the District of Colorado concerning our failure to designate
critical habitat for the Colorado butterfly plant (Center for
Biological Diversity, et al. v. Norton, et al. (Civ. Action No. 00-D-
1980)). On March 19, 2001, the Court approved a settlement agreement
requiring us to submit a final critical habitat designation for the
Colorado butterfly plant to the Federal Register on or before December
31, 2004. For more information on previous Federal actions concerning
the Colorado butterfly plant, refer to the final listing rule (65 FR
62302). On August 6, 2004 (69 FR 47834), we published a proposed
critical habitat designation for the Colorado butterfly plant.
Critical habitat identifies specific areas, both occupied and
unoccupied, that are essential to the conservation of a listed species
and that may require special management considerations or protection.
If the proposed rule is made final, section 7 of the Act will prohibit
destruction or adverse modification of critical habitat by any activity
funded, authorized, or carried out by any Federal agency. Federal
agencies proposing actions affecting areas designated as critical
habitat must consult with us on the effects of their proposed actions,
pursuant to section 7(a)(2) of the Act.
Section 4 of the Act requires that we consider economic impacts,
impacts to National security, and other relevant impacts prior to
making a final decision on what areas to designate as critical habitat.
We have prepared a draft economic analysis for the proposal to
designate certain areas as critical habitat for the Colorado butterfly
plant. This analysis considers the potential economic effects of our
proposed designation. It also considers the economic effects of
protective measures taken as a result of listing the species under the
Act, and other Federal, State, and local laws that aid habitat
conservation in areas proposed for designation.
The majority of these areas occur on privately owned land. We know
of no Federal, tribal, or military lands within proposed critical
habitat. A small portion of land within Unit 7 is owned by the City of
Cheyenne, Wyoming, and Unit 8 is owned by the City of Fort Collins,
Colorado. The economic analysis and environmental assessment address
the impacts of Colorado butterfly plant conservation efforts on
activities occurring on lands proposed for designation. The economic
analysis measures lost economic efficiency associated with conservation
agreements, oil and gas development, real estate development,
agriculture, road and bridge construction and maintenance projects, as
well as other State law requirements, uncertainty, and project delay.
[[Page 57252]]
There is a great deal of uncertainty in estimating the impact of
Colorado butterfly plant conservation activities in the future. For
some activities the analysis estimates an upper-bound cost estimate,
for others a conservative approach is taken to reach a best estimate.
The implicit lower-bound cost estimate predicts very low impact.
Total efficiency costs (e.g., lost economic opportunities
associated with restrictions on land use) for the upper-bound scenario
of the preferred alternative are estimated to be $286,700 from 2005 to
2024. The efficiency costs for the lower-bound scenario of the
preferred alternative are estimated to be $7,000 from 2005 to 2024. In
both cases, the Service is estimated to experience the highest cost
overall, followed by agriculture and natural gas pipeline construction
projects.
The environmental analysis discusses four alternatives, including
the ``no action'' alternative, and analyzes the following ``impact
areas''--physical environment; fish, wildlife, and plants; human
environment; archaeological and cultural resources; environmental
justice, and cumulative effects. The environmental analysis refers to
and incorporates the economic analysis.
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, it is not anticipated to have an annual effect on the economy
of $100 million or more or affect the economy in a material way. Due to
the tight timeline for publication in the Federal Register, the Office
of Management and Budget (OMB) has not formally reviewed this rule.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities. However, no
regulatory flexibility analysis is required if the head of an agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
proposed rule as well as types of project modifications that may
result. In general, the term significant economic impact is meant to
apply to a typical small business firm's business operations.
To determine if the proposed rule would affect a substantial number
of small entities, we considered the number of small entities affected
within particular types of economic activities (e.g., housing
development, oil and gas production, timber harvesting). We considered
each industry individually to determine if certification is
appropriate. In estimating the numbers of small entities potentially
affected, we also considered whether their activities have any Federal
involvement; some kinds of activities are unlikely to have any Federal
involvement and so will not be affected by the designation of critical
habitat. Designation of critical habitat affects only activities
conducted, funded, permitted or authorized by Federal agencies; non-
Federal activities are not affected by the designation.
If this critical habitat designation is made final, Federal
agencies must consult with us if their activities may affect designated
critical habitat. Consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process. In areas where occupancy by Colorado
butterfly plant is unknown, the designation of critical habitat could
trigger additional review of Federal agencies pursuant to section 7 of
the Act and may result in additional requirements on Federal activities
to avoid destruction or adverse modification of critical habitat.
In reviewing past formal consultations under section 7 of the Act
and the activities they involved in the context of the proposed
critical habitat, we do not believe the outcomes would have been
different in areas designated as critical habitat.
An analysis of the effects of the voluntary conservation agreements
for Colorado butterfly plant on small entities is conducted pursuant to
the RFA as amended by the SBREFA in 1996, while the energy analysis is
required by Executive Order No. 13211.
The draft economic analysis considers the extent to which the
analytic results reflect impacts to small businesses. The small
business analysis presented in this section is based on information
gathered from the SBA, U.S. Census Bureau, U.S. Department of
Agriculture, and Dun and Bradstreet, and comparisons with the results
of the economic analysis. The following summarizes the sources of
potential future impacts on small businesses attributable specifically
to the rulemaking.
Based on the draft economic analysis results, activities undertaken
by small businesses that are potentially affected by the rulemaking
include agricultural production. The SBA small business size standard
for farming and ranching is annual sales of $750,000. Recent county-
level farm sales data from the National Agricultural Statistics Service
2002 Agriculture Census was used to determine the number of small agri-
businesses operating within the proposed critical habitat designation.
The 2002 Agriculture Census data indicate that 95 percent of the
farmers operating within the five counties encompassed by the proposed
designation have annual sales less than $500,000. In Laramie County,
Wyoming, where more than 85 percent of the critical habitat is located,
736 of 755 farmers reported annual farm sales less than $500,000. These
data indicate that ranching operations in the area surrounding the
proposed designation tend to be small. For the purpose of this small
business analysis, because of the high percentage of farming operations
with annual sales below $500,000, all agriculture operations forecast
to be impacted by the proposed designation of critical habitat for the
Colorado butterfly plant are considered small.
Assuming all landowners within the proposed designation participate
in the voluntary conservation agreement program with the Service, up to
37 agriculture operations could be impacted by conservation measures
for the Colorado butterfly plant. Assuming an operation is required to
implement all of the activities recommended to protect the species and
its habitat, the annualized cost of the conservation measures to the
operator ($263) represents 0.1 of a percent of the average
[[Page 57253]]
annual farm's sales in the five counties surrounding the proposed
designation. The annualized impact ranges between 0.1 of a percent of
an average farm's sales in Weld County in Colorado, to 0.4 of a percent
in Larimer County in Colorado, and Kimball County in Nebraska. In
Laramie County, Wyoming, the annualized impact represents 0.3 of a
percent of the average farmer's annual sales. Note that, we do not know
the finances of the individual people that may be affected. Thus, the
draft economic analysis used averaged industry data (see Exhibit 4-10)
to estimate costs of ranching operations, and this table reflects the
variability of this data. It is important to note that these costs will
only be incurred by ranching operations to the extent that they agree
to participate in the voluntary conservation agreement program with the
Service.
In summary, we have considered whether this proposed rule would
result in a significant economic impact on a substantial number of
small entities, and we have concluded that it would not. We have no
indication that the types of activities we review under section 7 of
the Act will change significantly in the future. Therefore, we are
certifying that this proposed designation of critical habitat for the
Colorado butterfly plant is not expected to have a significant adverse
impact on a substantial number of small entities, and an initial
regulatory flexibility analysis is not required.
The preceding discussion is based on information regarding
potential economic impacts that is currently available to us. This
assessment of economic effect may be modified prior to publication of a
final rule due to public comments received during the public comment
period. This analysis is for the purposes of compliance with the
Regulatory Flexibility Act and does not reflect our position on the
type of economic analysis required by New Mexico Cattle Growers Assn.
v. U.S. Fish & Wildlife Service 248 F. 3d 1277 (10th Cir. 2001).
Author
The primary author of this notice is the Tyler Abbott, Wyoming Fish
and Wildlife Office staff (see ADDRESSES section).
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: September 17, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-21480 Filed 9-23-04; 8:45 am]
BILLING CODE 4310-55-P