[Federal Register: November 30, 2004 (Volume 69, Number 229)]
[Proposed Rules]               
[Page 69578-69581]
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 Critical 
Habitat Designation for the Buena Vista Lake Shrew

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability of draft economic 
analysis and reopening of public comment period.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of a draft economic analysis for the proposed designation 
of critical habitat for Buena Vista Lake shrew in California under the 
Endangered Species Act of 1973, as amended (Act). We are also reopening 
the public comment period for the proposal to designate critical 
habitat for this species to allow all interested parties to comment on 
the proposed rule and the associated draft economic analysis. Comments 
previously submitted on the proposed rule need not be resubmitted as 
they have been incorporated into the public record as part of this 
reopening of the comment period, and will be fully considered in 
preparation of the final rule.

DATES: We will accept all comments and information received on or 
before December 15, 2004. Any comments that we receive after the 
closing date may not be considered in the final decision on this 

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposed rule by any one of several methods:
    (1) You may submit written comments and information to the Field 
Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2800 Cottage Way, Suite W-2605, Sacramento, CA 95825, or by 
facsimile 916/414-6710.
    (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: 
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 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 for the proposed designation of critical 
habitat for Buena Vista Lake shrew by contacting the Sacramento Fish 
and Wildlife Office at the above address. The draft economic analysis 
and the proposed rule for critical habitat designation are also 
available on the Internet at http://sacramento.fws.gov/. In the event 

that our Internet connection is not functional, please obtain copies of 
documents directly from the Sacramento Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Sacramento Fish and 
Wildlife Office, at the address above (telephone 916/414-6600; 
facsimile 916/414-6710).


Public Comment Solicited

    We solicit comments or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning our draft economic analysis and the 
proposed rule to designate critical habitat for the Buena Vista Lake 
shrew. 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 exclusion outweigh the benefits of specifying 
such area as part of the critical habitat;
    (2) Specific information on the amount and distribution of shrew 
habitat, and what habitat is essential to the conservation of this 
species and why;
    (3) Land use designations and current or planned activities in the 
subject area and their possible impacts on proposed habitat, 
specifically impacts of the designation on the operation and 
maintenance of irrigation canals, and on existing and any planned 
future oil and gas activities within or near the proposed designation;
    (4) Any foreseeable economic, national security, or other potential 
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 attributable to the proposed critical habitat designation. 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 
    (8) Assumptions reflected in the economic analysis regarding land 
use practices and current, planned, or reasonably foreseeable 
activities in the subject areas, including comments or information 
relating to the potential effects that the designation could have on 
private landowners as a result of actual or foreseeable State and local 
government responses due to the California Environmental Quality Act;
    (9) Whether the designation will result in disproportionate 
economic impacts to specific areas that should be evaluated for 
possible exclusion from the final designation;
    (10) Whether the economic analysis appropriately identifies all 
costs that could result from the designation; and
    (11) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    All comments and information submitted during the initial comment 
period on the proposed rule need not be resubmitted. If you wish to 
comment, you may submit your comments and materials concerning the 
draft economic analysis and proposed rule by any one of several methods 
(see ADDRESSES section).
    Please submit Internet comments to BVLS_pCH@fws.gov in an ASCII 
file format and avoid the use of special characters and encryption. 
Please also include ``Attn: Buena Vista Lake shrew Critical Habitat'' 
in your e-mail subject header, and your name and return

[[Page 69579]]

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 (see FOR FURTHER INFORMATION CONTACT section).
    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 for 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, as well as supporting 
documentation used in preparation of the proposal to designate critical 
habitat, will be available for inspection, by appointment, during 
normal business hours, in our Sacramento Fish and Wildlife Office at 
the above address.
    In our August 19, 2004, proposed rule to designate critical habitat 
for the Buena Vista Lake shrew (69 FR 51417) we indicated that we would 
reopen the public comment period for an additional 60 days upon 
publication of this notice of availability of the draft economic 
analysis of the proposed designation. However, due to delays in 
completing the draft economic analysis and a court-ordered deadline for 
the completion of the final rule, we are unable to reopen the public 
comment period for that length of time. In order to ensure compliance 
with the United States District Court for the Eastern District of 
California's 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) requiring us to publish a final 
determination no later than January 12, 2005, we are only able to 
reopen the public comment period for 15 days.


    On August 19, 2004, we published a proposed rule to designate 
critical habitat, pursuant to the Endangered Species Act of 1973, as 
amended (Act) for the Buena Vista Lake shrew (69 FR 51417). We proposed 
a total of 4,649 acres in 5 units of critical habitat within the 
Central Valley of California. The Buena Vista Lake shrew formerly 
occurred in wetlands around Buena Vista Lake, and presumably throughout 
the Tulare Basin. 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. Essential habitat features of 
the shrew include riparian or wetland communities supporting a complex 
vegetative structure with a thick cover of leaf litter or dense mats of 
low-lying vegetation; suitable moisture supplied by a shallow water 
table, irrigation, or proximity to permanent or semipermanent water; 
and a consistent and diverse supply of prey. The shrew is now known 
from five isolated riparian or wetland remnants within the Tulare Basin 
of the Central Valley of California. Critical habitat receives 
protection from destruction or adverse modification through required 
consultation under section 7 of the Act with regards to actions carried 
out, funded, or authorized by a Federal agency. Section 4(b)(2) of the 
Act requires that the Secretary of the Interior shall designate or 
revise critical habitat based upon the best scientific and commercial 
data available, after taking into consideration the economic impact of 
specifying any particular area as critical habitat. The public comment 
period for the August 19, 2004, proposal originally closed on October 
18, 2004.
    We have prepared a draft economic analysis of the effects of the 
proposed critical habitat designation, and are now announcing its 
availability for review. The economic analysis addresses the impacts of 
the Buena Vista Lake shrew conservation efforts on activities occurring 
on lands proposed for designation. The analysis includes cost effects 
on agricultural producers adjacent or proximate to three Critical 
Habitat Units (CHU), biological monitoring, Habitat Conservation Plan 
(HCP) development, and supplemental water purchases, as well as 
potential uncertainty to landowners and project delay.
    The economic analysis includes both retrospective, or pre-
designation, and prospective, or post-designation, economic costs to 
various entities as a result of Buena Vista Lake shrew conservation 
activities. Retrospective costs are those costs estimated to have 
occurred from the time the species was listed in April 2002 until the 
proposal of critical habitat in August 2004. The estimated 
retrospective cost is $122,237. These costs are primarily certain 
administrative costs associated with the ongoing preparation of a 
Comprehensive Conservation Plan at the Kern National Wildlife Refuge 
CHU and the ongoing section 7 consultation related to the preparation 
of a biological opinion regarding the Goose Lake proposed CHU.
    Present values shown are calculated at three and seven percent 
discount rates. Total prospective costs range from $6.7 to $14.2 
million under a three percent discount rate, and $4.8 to $10.1 million 
under a seven percent rate. Thus, prospective average annual costs 
range from $452,266 to $955,833. These costs include effects on 
agricultural producers adjacent or proximate to three CHUs, biological 
monitoring, HCP development, and supplemental water purchases. The 
ranges reflect totals with and without supplemental water for Kern 
Lake, Coles Levee, and Kern Fan Water Recharge CHUs. Both the Kern 
National Wildlife Refuge and Goose Lake CHUs are assumed to require 
supplemental water, and thus do not contribute to a range of costs.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the proposed designation 
of critical habitat is a significant rule only in that it may raise 
novel legal and policy issues. However, the Economic Analysis indicates 
that the proposed designation will not 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 (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 

[[Page 69580]]

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. However, the SBREFA does not explicitly define ``substantial 
number'' or ``significant economic impact.'' Consequently, to assess 
whether a ``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in an area. The SBREFA also amended the 
RFA to require a certification statement. Based on the information that 
is available to us at this time from the economic analysis, we are 
certifying that this proposed designation of critical habitat will not 
have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    According to the Small Business Administration, 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 
rule as well as the 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.
    The Regulatory Flexibility Act does not explicitly define either 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in the area. 
Similarly, this analysis considers the relative cost of compliance on 
the revenues/profit margins of small entities in determining whether or 
not entities incur a ``significant economic impact.'' Only small 
entities that are expected to be directly affected by the designation 
are considered in this portion of the analysis. This approach is 
consistent with several judicial opinions related to the scope of the 
Regulatory Flexibility Act. (Mid-Tex Electric Co-Op, Inc. v. F.E.R.C. 
and American Trucking Associations, Inc. v. EPA).
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; non-Federal activities are 
not affected by the designation if they lack a Federal nexus. In areas 
where the species is present, Federal agencies funding, permitting, or 
implementing activities are already required to avoid jeopardizing the 
continued existence of the Buena Vista Lake shrew through consultation 
with us under section 7 of the Act. If this critical habitat 
designation is finalized, Federal agencies must also consult with us to 
ensure that their activities do not destroy or adversely modify 
designated critical habitat through consultation with us.
    Should a federally funded, permitted, or implemented project be 
proposed that may affect designated critical habitat, we will work with 
the Federal action agency and any applicant, through section 7 
consultation, to identify ways to implement the proposed project while 
minimizing or avoiding any adverse effect to the species or critical 
habitat. In our experience, the vast majority of such projects can be 
successfully implemented with at most minor changes that avoid 
significant economic impacts to project proponents.
    Based on our experience with section 7 consultations for all listed 
species, virtually all projects-including those that, in their initial 
proposed form, would result in jeopardy or adverse modification 
determinations in section 7 consultations--can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures, by definition, must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation. The kinds of actions that may be included 
in future reasonable and prudent alternatives include avoidance, 
conservation set-asides, management of competing non-native species, 
restoration of degraded habitat, construction of protective fencing, 
and regular monitoring. These measures are not likely to result in a 
significant economic impact to project proponents.
    In the case of the Buena Vista Lake shrew, we anticipate that that 
the proposed designation of critical habitat is not likely to have a 
significant impact on any small entities or classes of small entities. 
However, no section 7 consultations have been completed since the 
listing in 2002; in addition, no identifiable changes in economic 
activities resulting from shrew conservation efforts have taken place 
since the listing. The costs presented in the economic analysis 
reflect, where data permit, ranges representing the reasonably 
foreseeable future. These costs are likely to be incurred because of 
shrew conservation activities related to agriculture, operation and 
maintenance of groundwater recharge projects and resultant effects on 
water supplies, and water requirements for habitat.
    We considered the potential relative cost of compliance to these 
small entities and evaluated only small entities that are expected to 
be directly affected by the proposed designation of critical habitat. 
Based on the economic analysis, we do not anticipate that the proposed 
designation of critical habitat for the Buena Vista Lake shrew will 
result in increased compliance costs for small entities. The proposed 
designation of critical habitat does not, therefore, create a new cost 
for the small entities to comply with the proposed designation. 
Instead, proposed designation only impacts Federal agencies that 
conduct, fund, or permit activities that may affect critical habitat 
for the shrew. Thus, we conclude that the proposed designation of 
critical habitat is not likely to result in a significant impact to 
this group of small entities. Therefore, we are certifying that the 
proposed designation of critical habitat for the shrew will not have a 
significant economic impact on a substantial number of small entities, 
and an initial regulatory flexibility analysis is not required.
    In summary, we have considered whether this proposed designation 
would result in a significant economic impact on a substantial number 
of small entities, and we have concluded that it would not. Future 
consultations are not likely to affect a substantial number of small 
entities. We anticipate that the types of activities we review under 
section 7 of the Act will not change significantly in the future.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. The Economic 
Analysis indicates that the proposed designation will not have an 
annual effect on the economy of $100

[[Page 69581]]

million or more. Therefore, we believe that this critical habitat 
designation will not have an effect on the economy of $100 million or 
more, will not cause a major increase in costs or prices for consumers, 
and will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.


    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Buena Vista Lake shrew. Our 
assessment concludes that this proposed rule does not pose significant 
takings implications.


    The primary author of this notice is Shannon Holbrook, Sacramento 
Fish and Wildlife Services Office (see ADDRESSES section).


    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

    Dated: November 23, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-26472 Filed 11-29-04; 8:45 am]