[Federal Register: May 27, 2010 (Volume 75, Number 102)]
[Proposed Rules]
[Page 29700-29705]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27my10-22]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2009-0013]
[92210-1117-000-B4]
RIN 1018-AV45
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Preble's Meadow Jumping Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the proposed revised
designation of critical habitat for the Preble's meadow jumping mouse
(Zapus hudsonius preblei) under the Endangered Species Act of 1973, as
amended. We also announce the availability of a draft economic
analysis, a draft environmental assessment, and an amended required
determinations section of the proposal. We are reopening the comment
period for the proposal to allow all interested parties an opportunity
to comment simultaneously on the revised proposed rule, the associated
draft economic analysis and draft environmental assessment, and the
amended required determinations section. If you submitted comments
previously, you do not need to resubmit them because we have already
incorporated them into the public record and will fully consider them
in preparation of the final rule.
DATES: We will consider public comments received on or before June 28,
2010.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for docket FWS-R6-ES-2009-0013 and then follow the instructions
for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R6-ES-2009-0013; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Susan Linner, Field Supervisor, U.S.
Fish and Wildlife Service, Colorado Ecological Services Office, P.O.
Box 25486, DFC (MS 65412), Denver, CO 80225; by telephone (303-236-
4773); or by facsimile (303-236-4005). Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed revision of critical habitat
for the Preble's Meadow jumping mouse (PMJM) that was published in the
Federal Register on October 8, 2009 (74 FR 52066), our draft economic
analysis (DEA) of the proposed revised designation, our draft
environmental assessment, and our amendment of required determinations
provided in this document. We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
[[Page 29701]]
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Endangered Species Act of
1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether the
benefit of designation would outweigh any threats to the species due to
designation, such that the designation of critical habitat is prudent.
(2) Specific information on:
The amount and distribution of PMJM habitat in Colorado;
What areas occupied at the time of listing that contain
the physical and biological features essential to the conservation of
the species we should include in the revised designation and why;
What areas not occupied at the time of listing are
essential to the conservation of the species and why; and
What special management consideration and protection the
physical and biological features may require and why.
(3) Information identifying or clarifying the physical and
biological features essential to the conservation of the species.
(4) Land use designations and current or planned activities in the
subject areas and their possible impacts on the species and the
proposed critical habitat.
(5) How the proposed boundaries of the revised critical habitat
could be refined to more accurately identify the riparian and adjacent
upland habitats occupied by the PMJM.
(6) Whether our proposed revised designation should be altered in
any way to account for the potential effects of climate change and why.
(7) Whether any specific areas being proposed as revised critical
habitat should be excluded under section 4(b)(2) of the Act from the
final designation, and whether the benefits of potentially excluding
any particular area outweigh the benefits of including that area under
section 4(b)(2) of the Act. We are specifically seeking comments from
the public on the following:
Lands covered by the Douglas County Habitat Conservation
Plan (HCP) (Service 2006a) and the potential modification of outward
boundaries of proposed critical habitat to conform to Douglas County's
Riparian Conservation Zones (streams, adjacent floodplains, and nearby
uplands likely to be used as habitat by the PMJM) as mapped for the
Douglas County HCP;
Lands within the Livermore Area HCP (Service 2006), the
Larimer County's Eagle's Nest Open Space HCP (Service 2004), the Denver
Water HCP (Service 2003a), the Struther's Ranch HCP (Service 2003b),
and other HCPs;
Lands within El Paso County (because the county is
currently developing a countywide HCP);
Lands within the proposed Seaman Reservoir expansion
footprint; and
Lands within the Rocky Flats National Wildlife Refuge
(NWR).
(8) Any foreseeable economic, national security, or other relevant
impacts that may result from the proposed revised designation and, in
particular, any impacts on small entities, and the benefits of
including or excluding areas from the proposed redesignation that
exhibit these impacts.
(9) Information on the extent to which the description of potential
economic impacts in the DEA is complete and accurate.
(10) Whether the DEA makes appropriate assumptions regarding
current practices and any regulatory changes that will likely occur if
we designate revised critical habitat.
(11) Whether the DEA correctly assesses the effect of regional
costs associated with land use controls that may result from the
revised designation of critical habitat.
(12) Whether the DEA identifies all Federal, State, and local costs
and benefits attributable to the proposed revision of critical habitat,
and information on any costs that have been inadvertently overlooked.
(13) Whether the draft environmental assessment adequately presents
the purpose of and need for the proposed action, the proposed action
and alternatives, and the evaluation of the direct, indirect, and
cumulative effects of the alternatives.
(14) Whether our approach to designating revised critical habitat
could be improved or modified in any way to provide for greater public
participation and understanding, or to better accommodate public
concerns and comments.
You may submit your comments and materials concerning our proposed
rule or the associated DEA and draft environmental assessment by one of
the methods listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including your personal identifying information-- will be
posted on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, draft economic
analysis, and draft environmental assessment, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Colorado Ecological Services Office (see the FOR FURTHER INFORMATION
CONTACT). You may obtain copies of the proposed revision of critical
habitat, the DEA, and the draft EA on the Internet at http://
www.regulations.gov at docket number FWS-R6-ES-2009-0013, or at http://
www.fws.gov/mountain-prairie/species/mammals/preble/, or by mail from
the Colorado Ecological Services Office (see the FOR FURTHER
INFORMATION CONTACT).
Background
Previous Federal Actions
It is our intent to discuss only those topics directly relevant to
the proposed designation of critical habitat for the PMJM. For more
information on previous Federal actions concerning the PMJM, refer to
the proposed designation of revised critical habitat published in the
Federal Register on October 8, 2009 (74 FR 52066). We proposed to
designate approximately 418 mi (669 km) of rivers and streams and
39,142 ac (15, 840 ha) of lands in 11 units located in Boulder,
Broomfield, Douglas, El Paso, Jefferson, Larimer, and Teller Counties
in Colorado, as critical habitat. That proposal had a 60-day public
comment period, ending December 7, 2009. We will submit for publication
in the Federal Register a final critical habitat designation for the
PMJM on or before September 30, 2010.
For additional information on the biology of this subspecies, see
the May 13, 1998, final rule to list the PMJM as threatened (63 FR
26517); the June 23, 2003, final rule designating critical habitat for
the PMJM (68 FR 37275); and the July 10, 2008, final rule to amend the
listing for the PMJM to specify over what portion of its range the
subspecies is threatened (73 FR 39789).
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by the 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 geographical area occupied by the
[[Page 29702]]
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 that affect critical habitat must consult with us on
the effects of their proposed actions, under section 7(a)(2) of the
Act.
Draft Economic Analysis
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 impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat. We have prepared a DEA of our
October 8, 2009 (74 FR 52066), proposed rule to designate revised
critical habitat for the Preble's Meadow jumping mouse.
The intent of the DEA is to identify and analyze the potential
economic impacts associated with the proposed revised critical habitat
designation for the PMJM. The DEA quantifies the economic impacts of
all potential conservation efforts for the PMJM. Some of these costs
will likely be incurred regardless of whether or not we designate
revised critical habitat. The economic impact of the proposed revised
critical habitat designation is analyzed by comparing scenarios both
``with critical habitat'' and ``without critical habitat.'' The
``without critical habitat'' scenario represents the baseline for the
analysis, considering protections already in place for the species
(e.g., under the Federal listing and other Federal, State, and local
regulations). Therefore, the baseline represents the costs incurred
regardless of whether revised critical habitat is designated. The
``with critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of revised critical
habitat for the species. The incremental conservation efforts and
associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we may consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur if we finalize the proposed revised critical habitat
designation.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed revised critical habitat designation
for the PMJM over the next 20 years, which was determined to be the
appropriate period for analysis because limited planning information
was available for most activities to reasonably forecast activity
levels for projects beyond a 20-year timeframe. The DEA identifies
potential incremental costs as a result of the proposed revised
critical habitat designation; these are those costs attributed to
critical habitat over and above those baseline costs attributed to
listing. The DEA quantifies economic impacts of conservation efforts
for the PMJM associated with the following categories of activity: (1)
Residential and commercial development; (2) roads/bridges, utilities,
and bank stabilization projects; (3) water supply development; (4) U.S.
Forest Service land management; (5) Rocky Flats NWR land management;
and (6) gravel mining.
The DEA estimates that total potential incremental economic impacts
in areas proposed as revised critical habitat over the next 20 years
will be $21.4 million to $52.9 million (approximately $2.02 million to
$4.99 million on an annualized basis), assuming a 7-percent discount
rate. Approximately 95 percent of the incremental impacts attributed to
the proposed designation of revised critical habitat are expected to be
related to section 7 consultations with Federal agencies for
residential and commercial development.
Activities in proposed revised critical habitat units 9 and 10,
West Plum Creek and Upper South Platte River, are projected to bear the
largest incremental impacts attributable to the proposed rule,
representing about 38 and 34 percent of total incremental impacts,
respectively.
As stated earlier, we are seeking data and comments from the public
on the DEA and the draft environmental assessment, as well as all
aspects of the proposed rule and our amended required determinations.
We may revise the proposed rule or supporting documents to incorporate
or address information we receive during the public comment period. In
particular, we may exclude an area from revised critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of the species.
Draft Environmental Assessment; National Environmental Policy Act
When the range of a species includes States within the Tenth
Circuit, pursuant to the Tenth Circuit ruling in Catron County Board of
Commissioners v. U.S. Fish and Wildlife Service, 75 F .3d 1429 (10th
Cir. 1996), we will complete an analysis under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA), on
critical habitat designations. The range of the PMJM includes the State
of Colorado, which is within the Tenth Circuit.
The draft environmental assessment presents the purpose of and need
for critical habitat designation, the Proposed Action and alternatives,
and an evaluation of the direct, indirect, and cumulative effects of
the alternatives under the requirements of NEPA as implemented by the
Council on Environmental Quality regulations (43 CFR 61292, et seq.)
and according to the Department of the Interior's NEPA procedures.
The draft environmental assessment will be used by the Service to
decide whether or not critical habitat will be designated as proposed;
if the Proposed Action requires refinement, or if another alternative
is appropriate; or if further analyses are needed through preparation
of an environmental impact statement. If the Proposed Action is
selected as described (or is changed minimally) and no further
environmental analyses are needed, then a Finding of No Significant
Impact (FONSI) would be the appropriate conclusion of this process. A
FONSI would then be prepared for the environmental assessment.
Required Determinations--Amended
In our October 8, 2009, proposed rule (74 FR 52066), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders (EOs) until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data in making these determinations. In this
document, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), the Paperwork Reduction Act, E.O. 12866 and E.O. 12988
(Clarity of the Rule), and the President's memorandum of April 29,
1994, ``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951). However,
[[Page 29703]]
based on the DEA data, we are amending our required determinations
concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O.
13211 (Energy Supply, Distribution, or Use), and the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.).
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 must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Based on our DEA of
the proposed designation, we provide our analysis for determining
whether the proposed rule would result in a significant economic impact
on a substantial number of small entities. Based on comments we
receive, we may revise this determination as part of our final
rulemaking.
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 the
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.
To determine if the proposed designation of revised critical
habitat for the PMJM 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,
grazing, oil and gas production, timber harvesting). In order to
determine whether it is appropriate for our agency to certify that this
rule would not have a significant economic impact on a substantial
number of small entities, we considered each industry or category
individually. In estimating the numbers of small entities potentially
affected, we also considered whether their activities have any Federal
involvement. Critical habitat designation will not affect activities
that do not have any Federal involvement; designation of critical
habitat affects activities conducted, funded, permitted, or authorized
by Federal agencies.
Under the Act, designation of critical habitat only affects
activities carried out, funded, or permitted by Federal agencies. If we
finalize the proposed revised critical habitat designation, Federal
agencies must consult with us under section 7 of the Act 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.
Some kinds of activities are unlikely to have any Federal
involvement and so would not result in any additional effects under the
Act. However, there are some State laws that limit activities in
designated critical habitat even where there is no Federal nexus. If
there is a Federal nexus, Federal agencies will be required to consult
with us under section 7 of the Act on activities they fund, permit, or
carry out that may affect critical habitat. If we conclude, in a
biological opinion, that a proposed action is likely to destroy or
adversely modify critical habitat, we can offer ``reasonable and
prudent alternatives.'' Reasonable and prudent alternatives are
alternative actions that can be implemented in a manner consistent with
the scope of the Federal agency's legal authority and jurisdiction,
that are economically and technologically feasible, and that would
avoid destroying or adversely modifying critical habitat.
Within the proposed revised critical habitat designation, the types
of actions or authorized activities that we have identified as
potential concerns and that may be subject to consultation under
section 7 if there is a Federal nexus are: Residential and commercial
development; roads/bridges, utilities, and bank stabilization projects;
water supply development; U.S. Forest Service land management
practices; Rocky Flats NWR management practices; and gravel mining. As
discussed in Appendix A of the DEA, of the activities addressed in the
analysis, only residential and commercial development, and construction
and maintenance of roads/bridges, utilities, and bank stabilization
projects are expected to experience incremental, administrative
consultation costs that may be borne by small businesses.
Any existing and planned projects, land uses, and activities that
could affect the proposed revised critical habitat but have no Federal
involvement would not require section 7 consultation with the Service,
so they are not restricted by the requirements of the Act. Federal
agencies may need to reinitiate a previous consultation if
discretionary involvement or control over the Federal action has been
retained or is authorized by law and the activities may affect critical
habitat.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed designation of critical habitat for the PMJM. Please
refer to our draft economic analysis of the proposed revised critical
habitat designation for a more detailed discussion of potential
economic impacts; we will summarize key points of the analysis below.
The DEA, and its associated initial regulatory flexibility
analysis, estimate that total potential incremental economic impacts in
areas proposed as revised critical habitat over the next 20 years will
be $2.02 million to $4.99 million annually, assuming a 7-percent
discount rate. Approximately 95 percent of the incremental impacts
attributed to the proposed designation of critical habitat are expected
to be related to section 7 consultations with Federal agencies for
residential and commercial development. Expected impacts to residential
and commercial development include added costs primarily due to
administrative consultations and required modifications to development
project scope or design, including mitigation (or setting aside
conservation lands), habitat restoration and enhancement, and project
delays. Small entities represent 97 percent of all entities in the
residential and commercial development industry that may be affected.
Incremental costs also are expected related to road/bridge, utility,
and bank stabilization construction and maintenance activities
throughout proposed revised critical habitat. Small entities represent
90 percent of all entities in the road/bridge, utility, and
[[Page 29704]]
bank stabilization construction and maintenance industries that may be
affected. The Small Business Size Standard for the industry sectors
that could potentially be affected by the proposed revised critical
habitat designation are as follows:
New Housing Operative Builders--$33.5 million in annual
receipts.
Land Subdivision--$7 million in annual receipts
Natural Gas Distribution--500 employees.
Water Supply and Irrigation Systems--$7 million annual
receipts.
Pipeline Transportation of Natural Gas--$7 million annual
receipts.
In addition, government entities in the area may be affected. Of
these, 70 percent are small government jurisdictions (i.e., cities,
counties, towns, townships, villages, school districts, or special
districts with a population of less than 50,000).
Of principal interest is residential and commercial development,
and associated land subdivision, since an estimated 95 percent of
potential incremental impacts may affect that industry sector. The
small businesses in this industry sector may bear a total of $19.6 to
$49.9 million (at a 7-percent discount rate) in incremental impacts
related to section 7 consultations over the next 20 years (through
2029). However, when expressed as a percentage of a small developer's
annual sales revenue, assuming that one small developer is required for
each of the development projects, these monetary incremental impacts
are likely to be small. The incremental impact due to critical habitat
designation is estimated to range from $115,000 to $292,000 per
project. An average of nine projects is anticipated to occur in
critical habitat per year. For new home builders, estimated annual
sales in 2007 per developer in Colorado were $6.51 million. Therefore,
in years where a developer has a project in critical habitat, the
estimated incremental impact represents 1.8 to 4.5 percent of that
developer's annual sales in this industry. However, we expect these
costs to be incurred over a period of more than one year, since most
developments will take longer than one year to complete (i.e., if a
project takes two or more years to complete, the impact as a proportion
of revenue in any one year will be substantially less).
For land subdividers, the DEA assumes that annual sales per
establishment are limited to the small business threshold of $7 million
annually. The estimated annual incremental impact therefore represents
1.6 to 4.2 percent of a subdivider's annual sales. As discussed above,
the incremental impact associated with each project is expected to be
incurred over a period of more than one year. Thus, this analysis
overstates the actual annual impact on a small entity.
There are additional factors that may cause this analysis to
overstate the actual impact on small residential and commercial
developers, and on land subdividers. First, it is likely that a portion
of the impact will be realized by landowners in the form of higher
housing prices. The proportion of the total impact borne by landowners
is unknown. We believe the analysis gives a high estimate of possible
development and that it is likely the actual amount of development will
be less. The analysis likely overstates the amount of development
activity and, therefore, the total incremental impact, associated with
residential and commercial development. Lastly, anecdotal evidence and
existing county building restrictions suggest that fewer properties in
critical habitat are being developed than are quantified by the DEA.
This will likely further reduce the annual incremental impact borne per
small entity.
For road/bridge, utility, and bank stabilization construction and
maintenance, the DEA estimates that incremental impacts will range from
$392,000 to $818,000 over 20 years, or $37,000 to $77,200 annually.
Given an estimated average of four projects impacting critical habitat
and requiring section 7 consultation each year, and assuming one small
entity (municipality, wastewater district, etc.) conducts each
activity, the impact to each small government entity involved would be
$9,250 to $19,300. We expect this to be a very small percentage of the
annual budgets for the small governments that may be affected; however,
we invite comments or information specific to these potential economic
impacts to the small governments which may be affected by the proposed
revised critical habitat designation.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Given the analysis above, the expected annual
impacts to small businesses in the affected industries are
significantly less than the annual revenues that could be garnered by a
single small operator in those industries, and as such, impacts are low
relative to potential revenues. However, we are seeking public comments
regarding the estimated incremental impacts of this proposed revised
critical habitat designation on small entities. Specifically, we are
interested in evidence suggesting that the incremental economic impact
of section 7(a)(2) consultations in areas proposed as PMJM critical
habitat is expected to be larger or smaller than estimated in this
analysis.
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued E.O. 13211 (Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use) 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
Office of Management and Budget's guidance for implementing this
Executive Order outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to no regulatory action. The
only criterion that may be relevant to this analysis is increases in
the cost of energy distribution in excess of one percent. As described
in the DEA, constructing and maintaining electrical and natural gas
distribution and transmission systems is a type of utility project
potentially occurring in the proposed revised critical habitat. The DEA
concludes that incremental impacts may be incurred; however, they are
unlikely to reach the threshold of one percent. Therefore, designation
of revised critical habitat is not expected to lead to any adverse
outcomes (such as a reduction in electricity production or an increase
in the cost of energy production or distribution), and a Statement of
Energy Effects is not 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
et seq.), we make 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. First, it excludes ``a condition of federal
assistance.'' Second, it excludes ``a duty arising from participation
in a voluntary
[[Page 29705]]
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. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) As discussed in the DEA of the proposed designation of revised
critical habitat for the PMJM, we do not believe that the rule would
significantly or uniquely affect small governments because it would not
produce a Federal mandate of $100 million or greater in any year; that
is, it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act. The DEA concludes that incremental impacts may
occur due to project modifications that may need to be made for
development activities; however, these are not expected to affect small
governments to the extent described above. Consequently, we do not
believe that the proposed revised critical habitat designation would
significantly or uniquely affect small government entities. As such, a
Small Government Agency Plan is not required.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://
www.regulations.gov or by contacting the Colorado Ecological Services
Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this document are the staff members of the
Colorado Ecological Services Office.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: May 18, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-12775 Filed 5-26-10; 8:45 am]
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