[Federal Register: October 25, 2005 (Volume 70, Number 205)]
[Proposed Rules]               
[Page 61591-61595]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU23

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Distinct Population Segment of the California 
Tiger Salamander in Sonoma County

AGENCY: Fish and Wildlife Service, Interior.

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


SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the comment period on the proposed designation of critical habitat 
for the distinct population segment (DPS) of the California tiger 
salamander in Sonoma County and the availability of the draft economic 
analysis of the proposed designation of critical habitat. The draft 
economic analysis identifies potential costs of approximately $336 
million over a 20-year period or approximately $17 million per year as 
a result of the proposed designation of critical habitat, including 
those costs coextensive with listing. We are reopening the comment 
period to allow all interested parties an opportunity to comment 
simultaneously on the proposed rule and the associated draft economic 
analysis. Comments previously submitted need not be resubmitted as they 
will be incorporated into the public record as part of this comment 
period, and will be fully considered in preparation of the final rule.

DATES: We will accept public comments until November 14, 2005.

ADDRESSES: Written comments and materials may be submitted to us by any 
one of the following methods:
    1. You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-
2605, Sacramento, CA 95825;
    2. You may hand-deliver written comments and information to our 
Sacramento Fish and Wildlife Office, at the above address, or fax your 
comments to 916/414-6713; or
    3. You may send comments by electronic mail (e-mail) to: 
fw1sonoma_tiger_salamander@fws.gov. For directions on how to file 

comments electronically, see the ``Public Comments Solicited'' section. 
In the event that our Internet connection is not functional, please 
submit your comments by the alternate methods mentioned above.
    Copies of the draft economic analysis and the proposed rule for 
critical habitat designation are available on the Internet at http://www.fws.gov/pacific/sacramento
 or from the Sacramento Fish and Wildlife 

Office at the address and contact numbers above.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Sacramento Fish and 
Wildlife Office, at the address above (telephone 916/414-6600; 
facsimile 916/414-6713).


Public Comments Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments on the original proposed 
critical habitat designation (70 FR 44301; August 2, 2005) and on our 
draft economic analysis of the proposed designation. We will consider 
information and recommendations from all interested parties. We are 
particularly interested in 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 Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 
including whether the benefits of exclusion outweigh the benefits of 
including such area as part of critical habitat;
    (2) Specific information on the amount and distribution of 
California tiger salamander (CTS) habitat in Sonoma County, 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;
    (4) Information on whether, and if so, how many of the State and 
local environmental protection measures referenced in the draft 
economic analysis were adopted largely as a result of the listing of 
the Sonoma County population of the CTS, and how many were either 
already in place or enacted for other reasons;
    (5) Whether the draft economic analysis identifies all State and 
local costs attributable to the proposed critical habitat designation, 
and information on any costs that have been inadvertently overlooked;
    (6) Whether the draft 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 draft economic analysis correctly assesses the 
effect on regional costs associated with any land use controls that may 
derive from the designation of critical habitat;
    (8) The draft economic analysis indicates potentially 
disproportionate impacts to areas within Sonoma County. Based on this 
information, we are considering excluding portions of these areas from 
the final designation per our discretion under section 4(b)(2) of the 
Act. We are specifically seeking comment and additional information on 
areas within Sonoma County that could be potentially be 
disproportionately impacted by a CTS critical habitat designation;
    (9) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, and in particular, any 
impacts on small entities or families; does our conclusion that the 
proposed designation of critical habitat will not result in a 
disproportionate effect to small businesses warrant further 
consideration, and other information that would indicate that the 
designation of critical habitat would or would not have any impacts on 
small entities or families;
    (10) Whether the draft 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.
    An area may be excluded from critical habitat if it is determined 
that the benefits of such exclusion outweigh the

[[Page 61592]]

benefits of including a particular area as critical habitat, unless the 
failure to designate such area as critical habitat will result in the 
extinction of the species. We may exclude an area from designated 
critical habitat based on economic impacts, national security, or any 
other relevant impact.
    All previous comments and information submitted during the initial 
comment period on the August 2, 2005, proposed rule (70 FR 44301) need 
not be resubmitted. If you wish to comment, you may submit your 
comments and materials concerning the draft economic analysis and the 
proposed rule by any one of several methods (see ADDRESSES section). 
Our final designation of critical habitat will take into consideration 
all comments and any additional information we received during both 
comment periods. On the basis of public comment on this analysis and on 
the critical habitat proposal, and the final economic analysis, we may 
during the development of our final determination find that areas 
proposed are not essential, are appropriate for exclusion under section 
4(b)(2) of the Act, or not appropriate for exclusion.
    Please submit electronic comments in an ASCII file format and avoid 
the use of special characters and encryption. Please also include 
``Attn: RIN 1018-AU23'' and your name and return address in your e-mail 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, please contact the person listed 
under For Further Information Contact.
    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. In some circumstances, 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 comments. 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, at the Sacramento Fish and Wildlife Office at 
the address listed under ADDRESSES.
    Copies of the proposed rule and draft economic analysis are 
available on the Internet at: http://www.fws.gov/pacific/sacramento/. 

You may also obtain copies of the proposed rule and economic analysis 
from the Sacramento Fish and Wildlife Office (see ADDRESSES), or by 
calling 916/414-6600.


    We published a proposed rule to designate critical habitat for a 
distinct population segment of the CTS in Sonoma County on August 2, 
2005 (70 FR 44301). The proposed critical habitat totaled approximately 
74,223 acres (ac) (30,037 hectares (ha)) in Sonoma County. This 
proposed critical habitat does not include areas within Santa Barbara 
County or the Central Valley or Central Coast of California. A final 
critical habitat designation for the distinct population segment of the 
CTS in Santa Barbara County was published on November 24, 2004 (69 FR 
68568), and a final critical habitat designation for the Central 
population of the CTS was published on August 23, 2005 (70 FR 49380). 
Per settlement agreement, we will submit for publication in the Federal 
Register a final critical habitat designation for the CTS in Sonoma 
County on or before December 1, 2005.
    Critical habitat is defined in section 3 of the Act as 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 essential to the conservation of the species and 
that may require special management considerations or protection, and 
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. 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(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic or any other 
relevant impact of specifying any particular area as critical habitat. 
Based on the August 2, 2005, proposed rule to designate critical 
habitat for the CTS in Sonoma County, we have prepared a draft economic 
analysis of the proposed critical habitat designation.
    The current draft economic analysis estimates the foreseeable 
economic impacts of the proposed critical habitat designation on 
government agencies and private businesses and individuals. The 
economic analysis identifies potential costs of approximately $336 
million over a 20-year period or approximately $17 million per year as 
a result of the proposed critical habitat designation, including those 
costs coextensive with listing. The analysis measures lost economic 
efficiency associated with residential and commercial development, and 
public projects and activities, such as economic impacts on 
transportation projects, the energy industry, and Federal lands. 
However, no Federal lands are within the proposed critical habitat 
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the CTS in Sonoma 
County, including costs associated with sections 4, 7, and 10 of the 
Act, and including those attributable to designating critical habitat. 
It further considers the economic effects of protective measures taken 
as a result of other Federal, State, and local laws that aid habitat 
conservation for the CTS in essential habitat areas. The draft analysis 
considers both economic efficiency and distributional effects. In the 
case of habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (e.g., lost economic 
opportunities associated with restrictions on land use). This analysis 
also addresses how potential economic impacts are likely to be 
distributed, including an assessment of any local or regional impacts 
of habitat conservation and the potential effects of conservation 
activities on small entities and the energy industry. This information 
can be used by decision-makers to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, this draft analysis looks retrospectively at costs that have 
been incurred since the date the species was listed as a threatened 
species and considers those costs that may occur in the 20 years 
following a designation of critical habitat.
    As stated earlier, we solicit data and comments from the public on 
this draft economic analysis, as well as on all aspects of the 
proposal. We may revise the proposal, or its supporting documents, to 
incorporate or address

[[Page 61593]]

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 CTS 
critical habitat pursuant to sections 4, 7, and 10 of the Act are 
estimated to be approximately $336 million from 2005 to 2025. Overall, 
the residential and commercial industry is calculated to experience the 
highest estimated costs. The draft analysis was conducted at the census 
tract level. Of the 57 census tracts that are part of this current 
proposal, six are identified as census tracts responsible for over 80% 
of the most impacted areas. Annualized impacts of costs attributable to 
the proposed critical habitat designation are projected to be 
approximately $17 million.

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, 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 timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) did not formally review the proposed rule.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, then the agency will need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then 
evaluate alternative regulatory approaches, where feasible, when 
promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweighs the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative 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 CTS would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities (e.g., residential and commercial 
development). 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 the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of the CTS and proposed designation of its critical habitat. We 
determined from our analysis that the small business entities that may 
be affected are firms in the new home construction sector. We estimated 
the number of affected small businesses and calculated the number of 
houses built per small firm. It appears that the annual number of 
affected small firms is far less than one in Sonoma County. Note that 
if one firm closed in the first year, then this same firm would be 
affected in subsequent years. The number of small firms will not 
decrease every year. These firms may be affected by activities 
associated with the conservation of the CTS, inclusive of activities 
associated with listing, recovery, and critical habitat. Critical 
habitat is not expected to result in significant small business 
impacts. In the development of our final designation, we will explore 
potential alternatives to minimize impacts to any affected small 
business entities. These alternatives may include the exclusion of all 
or portions of the critical habitat units in these counties. As such, 
we expect that any final designation of critical habitat for the 
distinct population segment of the CTS in Sonoma County.
    We do not believe that the designation of critical habitat for the 
CTS in Sonoma County will result in a disproportionate effect to small 
business entities.

[[Page 61594]]

However, we are seeking comment on potentially excluding areas from the 
final critical habitat designation if it is determined that there will 
be a substantial and significant impact to small real estate 
development businesses in the county.
    Critical habitat designation for the CTS is expected to have the 
largest impacts on the market for developable land. The proposed 
critical habitat designation for CTS occurs in a number of rapidly 
growing areas. Regulatory requirements to avoid onsite impacts and 
mitigate offsite affect the welfare of both producers and consumers. In 
the scenario presented here, mitigation requirements increase the cost 
of development, and avoidance requirements are assumed to reduce the 
construction of new housing. In this scenario, the proposed critical 
habitat designation is expected to impose losses of over $336 million 
over the 20-year study period.
    The economic impacts of the proposed critical habitat designation 
vary widely even with the county. That is, the impacts of designation 
are frequently localized. This finding is sensible from an economic 
point of view and is consistent with the teachings of urban economics. 
Housing prices vary over urban areas, typically declining as the 
location of the house becomes more remote. Critical habitat is not 
evenly distributed across the landscape, and large impacts may result 
if a particular area has a large fraction of developable land in 
critical habitat. Some areas have few alternate sites for development, 
or have highly rationed housing resulting in high prices. Any of these 
factors may cause the cost of critical habitat designation to increase.
    The precise spatial scale of the analysis permits identification of 
specific locations, or parts of individual critical habitat units, that 
result in the largest economic impacts. The maps contained at the end 
of the draft economic analysis are instructive in this regard. The maps 
identify the census tracts within the counties where the impacts are 
predicted to occur.
    Please refer to our draft economic analysis of the proposed 
critical habitat designation for a more detailed discussion of 
potential economic impacts.

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. This proposed rule is 
considered a significant regulatory action under E.O. 12866 because it 
raises novel legal and policy issues, but it is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant 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, 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; Aid to 
Families with Dependent Children 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) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for the CTS in Sonoma County, the 
impacts on nonprofits and small governments are expected to be 
negligible. There is no record of consultations between the Service and 
any of these governments since the distinct population segment of the 
CTS in Sonoma County was emergency listed in 2002. It is likely that 
small governments involved with developments and infrastructure 
projects will be interested parties or involved with projects involving 
section 7 consultations for the distinct population segment of the CTS 
in Sonoma County within their jurisdictional areas. Any costs 
associated with this activity are likely to represent a small portion 
of a local government's budget. Consequently, we do not believe that 
the designation of critical habitat for the distinct population segment 
of the CTS in Sonoma County will significantly or uniquely affect these 
small governmental 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 habitat for the Sonoma County population of CTS. 
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 Sonoma

[[Page 61595]]

County population of CTS does not pose significant takings 


    The primary author of this notice is the staff of the Sacramento 
Fish and Wildlife Service.
    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

    Dated: October 14, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-21205 Filed 10-24-05; 8:45 am]