[Federal Register: August 16, 2005 (Volume 70, Number 157)]
[Proposed Rules]               
[Page 48094-48098]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT89

Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Pacific Coast Population of the 
Western Snowy Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability of draft economic 


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of the draft economic analysis for the proposal to 
designate critical habitat for the Pacific coast distinct population 
segment of the western snowy plover (Charadrius alexandrinus nivosus) 
under the Endangered Species Act of 1973 (Act), as amended. The draft 
economic analysis finds that, over the next 20 years, costs associated 
with western snowy plover conservation activities are forecast to range 
from $272.8 to $645.3 million. In constant dollars, the draft economic 
analysis estimates there will be an economic impact of $514.9 to 
$1,222.7 million over the next 20 years. The greatest economic impact 
(approximately 90 to 95 percent of total future impact using 3 and 7 
percent discount rates) is expected to occur to recreation; other 
activities impacted include plover management, real estate development, 
military base operations, and gravel extraction. Comments previously 
submitted on the December 17, 2004, proposed rule (69 FR 75608) during 
the initial comment period need not be resubmitted as they have been 
incorporated into the public record and will be fully considered in 
preparation of the final rule.

DATES: Comments must be submitted directly to the Service (see 
ADDRESSES section) on or before 30 days after publication of this 

ADDRESSES: If you wish to comment on the proposed rule or draft 
economic analysis, you may submit your comments and materials by any 
one of several methods:
    1. You may submit written comments and information by mail or hand-
delivery to the Arcata Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 1655 Heindon Road, Arcata, California 95521.
    2. Written comments may be sent by facsimile to 707-822-8411.
    3. You may send your comments by electronic mail (e-mail) to 
fw8snowyplover@fws.gov. For directions on how to submit electronic 

filing of comments, see the ``Public Comments Solicited'' section 
    You may obtain copies of the draft economic analysis by mail or by 
visiting our Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fws.gov/pacific/sacramento/default.htm.
 You may review comments and materials received, and review 

supporting documentation used in preparation of this proposed rule, by 
appointment, during normal business hours, at the above address.

FOR FURTHER INFORMATION CONTACT: Michael Long, Field Supervisor, Arcata 
Fish and Wildlife Office (telephone 707-822-7201; facsimile 707-822-


Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning the proposed rule and the draft economic analysis. On 
the basis of public comment, during the development of our final 
determination, we may find that areas proposed are not essential, are 
appropriate for exclusion under section

[[Page 48095]]

4(b)(2) of the Act, or are not appropriate for exclusion. 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 designation will outweigh benefits of 
    (2) Specific information on the distribution of the western snowy 
plover, the amount and distribution of the species' habitat, and which 
habitat is essential to the conservation of the species, and why;
    (3) Land-use designations and current or planned activities in the 
subject area and their possible impacts on the species or proposed 
critical habitat;
    (4) Whether our approach to listing or critical habitat designation 
could be improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (5) Any foreseeable economic, environmental, or other impacts 
resulting from the proposed designation of critical habitat or 
coextensively from the listing, and in particular, any impacts on small 
entities or families;
    (6) Whether the draft economic analysis identifies all State and 
local costs. If not, what other costs should be included;
    (7) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the listing of the species or the proposed 
designation of critical habitat;
    (8) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with the proposed designation;
    (9) Whether the proposed designation will result in 
disproportionate economic impacts to specific areas that should be 
evaluated for possible exclusion from the final designation;
    (10) Whether the draft economic analysis appropriately identifies 
all costs that could result from the designation or coextensively from 
the listing;
    (11) Specific information that would help us further understand the 
effects of designation on small businesses that depend on recreation 
and tourism. Based on the information we receive on small business that 
depend on recreation and tourism, we are considering excluding areas 
based on disproportionate costs from the final designation per our 
discretion under section 4(b)(2) of the Act. We are specifically 
seeking comment along with additional information concerning our final 
determination for these three areas; and
    (12) We are also considering excluding areas from the final 
designation, and are requesting comments on the benefits of excluding 
or including in critical habitat the areas as discussed in our proposed 
    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 
    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 electronic comments to fw8snowyplover@fws.gov 
in ASCII file format and avoid the use of special characters or any 
form of encryption. Please also include ``Attn: Western snowy plover'' 
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 Arcata Fish and Wildlife Office at phone number 707-822-
7201. Please note that the e-mail address fw8snowyplover@fws.gov will 
be closed out at the termination of the public comment period.


    On December 17, 2004 (69 FR 75608), we proposed to designate as 
critical habitat a total of approximately 17,299 acres (ac) (7,001 
hectares (ha)) within 35 units along the coasts of California, Oregon, 
and Washington. In developing this proposal, we evaluated those lands 
determined to contain habitat features essential to the conservation of 
the Pacific coast population of the western snowy plover to ascertain 
if any specific areas are appropriate for exclusion from critical 
habitat pursuant to section 4(b)(2) of the Act. Section 4(b)(2) 
requires us to take into account economic and other impacts resulting 
from designation, and allows us to exclude areas with essential habitat 
features if the benefits of exclusion outweigh those of designation. 
Additionally, the newly amended section 4(a)(3) requires exclusion of 
military lands subject to an Integrated Natural Resources Management 
Plan (INRMP) that benefits the species. We have excluded several units 
based on these provisions. Additionally, we have considered, but are 
not proposing, several areas that were either unoccupied at the time of 
listing (1993) or are unoccupied now.
    For a discussion of previous Federal actions regarding the Pacific 
coast population of the western snowy plover, please see the December 
7, 1999, final rule (64 FR 68508) and December 17, 2004, proposed rule 
(69 FR 75608) to designate critical habitat for the Pacific coast 
population of the western snowy plover. The December 7, 1999, final 
rule was remanded and partially vacated by the United States District 
Court for the District of Oregon on July 2, 2003, in order for us to 
conduct a new analysis of economic impacts (Coos County Board of County 
Commissioners et al. v. Department of the Interior et al., CV 02-6128, 
M. Hogan). The court set a deadline of December 1, 2004, for submittal 
of a new proposed critical habitat designation to the Federal Register. 
The court-established deadline for submittal of the final designation 
is September 20, 2005.
    Critical habitat identifies specific areas 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 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 and other 
relevant impacts prior to making a final decision on what areas to 
designate as critical habitat. We are announcing the availability of a 
draft economic analysis for the proposal to designate certain areas as 
critical habitat for the Pacific coast population of the western snowy 
plover. We may revise the proposal, or

[[Page 48096]]

its supporting documents, to incorporate or address new information 
received during the comment period. In particular, we may exclude an 
area from critical habitat if we determine that the benefits of 
excluding the area outweigh the benefits of including the area as 
critical habitat, provided such exclusion will not result in the 
extinction of the species.
    Costs related to conservation activities for the proposed western 
snowy plover critical habitat pursuant to sections 4, 7, and 10 of the 
Act are estimated to be approximately $272.8 to $645.3 million over the 
next 20 years on a present value basis. In constant dollars, the draft 
economic analysis estimates there will be an economic impact of $514.9 
to $1,222.7 million expressed in constant dollars over the next 20 
years. The activities affected by plover protection may include 
recreation, plover management, real estate development, military base 
operations, and gravel extraction. Over three quarters of all future 
costs are associated with five central and southern California units, 
which include the following: Monterey to Moss Landing (CA-12C), Pismo 
Beach/Nipomo (CA-16), Morro Bay Beach (CA-15C), Jetty Road to Aptos 
(CA-12A), and Silver Strand (CA-27C). For further information, see the 
draft economic analysis; exhibits ES-6 and ES-7 provide detailed cost 
information for all activities on a unit-by-unit basis.

Required Determinations--Amended

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, based on our draft economic analysis, it is not anticipated 
that the proposed designation of critical habitat for the Pacific coast 
population of the western snowy plover will result in an annual effect 
on the economy of $100 million or more or affect the economy in a 
material way. Due to the timeline for publication in the Federal 
Register, the Office of Management and Budget (OMB) has not formally 
reviewed the proposed rule or accompanying draft economic analysis.

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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. In our proposed rule 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the Pacific coast population of the western snowy plover would affect a 
substantial number of small entities, we considered the number of small 
entities affected within particular types of economic activities (e.g., 
recreation, residential and related development, and commercial gravel 
mining). We considered each industry or category individually to 
determine if certification is appropriate. In estimating the numbers of 
small entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted or authorized by 
Federal agencies; non-Federal activities are not affected by the 
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us if their activities may affect 
designated critical habitat. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process.
    In our draft economic analysis of this proposed designation, we 
evaluated the potential economic effects on small business entities and 
small governments resulting from conservation actions related to the 
listing of this species and proposed designation of its critical 
habitat. We evaluated small business entities in five categories: 
Habitat and plover management activities, beach-related recreation 
activities, residential and related development, activities on military 
lands, and commercial mining. Of these five categories, impacts of 
plover conservation to habitat and plover management, and activities on 
military lands are not anticipated to affect small entities as 
discussed in Appendix A of our draft economic analysis. The following 
summary of the information contained in Appendix A of the draft 
economic analysis provides the basis for our determination.
    On the basis of our analysis of western snowy plover conservation 
measures, we determined that this proposed designation of critical 
habitat for the western snowy plover would result in potential economic 
effects to recreation. Section 4 of the draft economic analysis 
discusses impacts of restrictions on recreational activity at beaches 
containing potential critical habitat for the plover. Individual 
recreators may experience welfare losses as a result of foregone or 
diminished trips to the beach. If fewer trips are taken by recreators, 
then some local businesses serving these visitors may be indirectly 
affected. The scope of our analysis makes identification of the exact 
businesses that may be affected difficult. Presently, we do not believe 
that this proposed designation will have an effect on a substantial 
number of small businesses and would also not result in a significant 
effect to impacted small businesses; however, we are requesting 
additional information on the effects of this proposed designation for 
our determination in our final rule.
    For development activities, a detailed analysis of impacts to these 
activities is presented in Section 5 of the draft economic analysis. 
For this analysis, we determined that two development projects 
occurring within the potential

[[Page 48097]]

critical habitat are expected to incur costs associated with plover 
conservation efforts. One of these projects is funded by Humboldt 
County, which does not qualify as a small government, and is therefore 
not relevant to this small business analysis. The economic impact to 
the one project that qualifies as a small business is estimated to be 
2.5 percent of the tax revenue. Because only one small business is 
estimated to be impacted by this proposal and only 2.5 percent of 
revenues are estimated to be incurred, we have determined that this 
proposed designation will not have an effect on a substantial number of 
small businesses.
    For gravel mining activities, we have determined that five gravel 
mining companies exist within Unit CA-4D of the proposed designation of 
critical habitat. We determined that the annualized impact from plover 
conservation activities to these small businesses was approximately 0.5 
percent of the total sales of these five mining companies. From this 
analysis, we have determined that this proposed designation would also 
not result in a significant effect to the annual sales of these small 
businesses impacted by this proposed designation.
    Based on this data we have determined that this proposed 
designation would not affect a substantial number of small businesses 
involved in residential and related development and commercial gravel 
mining. Further, we have determined that this proposed designation 
would also not result in a significant effect to the annual sales of 
those small businesses impacted by this proposed designation. We also 
believe that this proposed designation would not affect a substantial 
number of small businesses involved in recreation and would not result 
in a significant effect to these businesses; however, we request 
further information on the impacts of this proposed designation to this 
economic sector for our final rulemaking. As such, we are certifying 
that this proposed designation of critical habitat would not result in 
a significant economic impact on a substantial number of small 
entities. Please refer to Appendix A of our draft economic analysis of 
this designation for a more detailed discussion of potential economic 
impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. The proposed rule is 
considered a significant regulatory action under E.O. 12866 due to it 
potentially raising novel legal and policy issues, but it is not 
expected to significantly affect energy supplies, distribution, or use. 
Appendix A of the draft economic analysis provides a detailed 
discussion and analysis of this determination. The draft economic 
analysis determines that none of the impacts of this proposed 
designation are relevant to energy supply, distribution, or use. 
Therefore we have determined that this proposed designation is not 
likely to produce ``a significant adverse effect'' as a result of 
western snowy plover conservation activities. Therefore, this action is 
not a significant action and no Statement of Energy Effects is 

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
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. Non-Federal entities that 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. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) The economic analysis discusses potential impacts of critical 
habitat designation for the western snowy plover including 
administrative costs, water management activities, oil and gas 
activities, concentrated animal feeding operations, agriculture, and 
transportation. The analysis estimates that costs of the rule could 
range from $272.8 to $645.3 million over the next 20 years. In constant 
dollars, the draft economic analysis estimates there will be an 
economic impact of $514.9 to $1,222.7 million over the next 20 years. 
Recreational activities are expected to experience the greatest 
economic impacts related to western snowy plover conservation 
activities. Impacts on small governments are not anticipated. For 
example, costs to recreators would not be expected to be passed on to 
entities that qualify as small governments. Consequently, for the 
reasons discussed above, we do not believe that the designation of 
critical habitat for the western snowy plover will significantly or 
uniquely affect small government entities. As such, a Small Government 
Agency Plan is not required.


    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical

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habitat for western snowy plover. Critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits, nor does it preclude development of habitat conservation 
programs or issuance of incidental take permits to permit actions that 
do require Federal funding or permits to go forward. In conclusion, the 
designation of critical habitat for the western snowy plover does not 
pose significant takings implications.


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

    Dated: August 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-16149 Filed 8-15-05; 8:45 am]