[Federal Register: June 29, 2010 (Volume 75, Number 124)]
[Proposed Rules]
[Page 37350-37353]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn10-23]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2009-0079]
[MO92210-0-0009-B4]
RIN 1018-AW52
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Vermilion Darter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period, availability of
draft economic analysis, and amended required determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the
availability of the draft economic analysis (DEA) for the proposed
designation of critical habitat for the vermilion darter (Etheostoma
chermocki) under the Endangered Species Act of 1973, as amended. We
also announce the reopening of the comment period and an amended
required determinations section of the proposal. The comment period is
reopened for an additional 30 days to allow interested parties an
opportunity to comment simultaneously on the proposed critical habitat
designation, the associated DEA, and the amended required
determinations section. Comments previously submitted need not be
resubmitted and will be fully considered in preparation of the final
rule.
DATES: Written Comments: We will consider public comments received or
postmarked on or before July 29, 2010. Please note that if you are
using the Federal eRulemaking Portal (see ADDRESSES section, below) the
deadline for submitting an electronic comment is 11:59 p.m. Eastern
Daylight Savings Time on this date.
ADDRESSES: Written Comments:You may submit comments by one of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-R4-
ES-2009-0079.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R4-ES-2009-0079; 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: Stephen Ricks, Field Supervisor,
Mississippi Fish and Wildlife Office, 6578 Dogwood View Parkway,
Jackson, MS 39213; by telephone (601-321-1122); or by facsimile (601-
965-4340). 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 the proposed designation of critical habitat
for the vermilion darter that was published in the Federal Register on
December 3, 2009 (74 FR 63366), the draft economic analysis (DEA) of
the proposed designation of critical habitat for the vermilion darter,
and the amended required determinations provided in this document. We
will consider information and recommendations from all interested
parties. We are particularly interested in comments concerning:
(1) The reasons why we should or should not designate areas as
``critical habitat'' under section 4 of the Endangered Species Act
(Act) (16 U.S.C. 1531 et seq.), including whether there are threats to
the vermilion darter from human activity, the degree of which can be
expected to increase due to the designation, and whether the benefit of
designation would outweigh threats to the species caused by the
designation, such that the designation of critical habitat is prudent.
(2) Specific information on:
The amount and distribution of vermilion darter habitat;
What areas containing physical and biological features
essential to the conservation of the species should be included in the
designation and why;
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Special management considerations or protections for the
physical and biological features essential to vermilion darter
conservation that have been identified in the proposed rule that may be
needed, including managing for the potential effects of climate change;
and
What areas not currently occupied by the species are
essential to the conservation of the species and why.
(3) Specific information on the vermilion darter and the physical
and biological features essential to the conservation of the species.
(4) Any information on the biological or ecological requirements of
the species.
(5) Land-use designations and current or planned activities in
areas occupied by the species, and their possible impacts on the
species and the proposed critical habitat.
(6) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities and the benefits of including or excluding
areas that are subject to these impacts.
(7) Whether the benefits of excluding any particular area from
critical habitat outweigh the benefits of including that area as
critical habitat under section 4(b)(2) of the Act, after considering
the potential impacts and benefits of the proposed critical habitat
designation.
(8) Whether our approach to designating critical habitat 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.
You may submit your comments and materials concerning this proposed
rule or DEA by one of the methods listed in the ADDRESSES section.
If you submitted comments or information on the proposed critical
habitat rule for the vermilion darter, previously published on December
3, 2009 (74 FR 63366), you do not have to resubmit them. These comments
are included in the public record for this rulemaking, and we will
fully consider them in the preparation of our final determination.
If you submit a comment via http://www.regulations.gov, your entire
comment--including your personal identifying information--will be
posted on the website. We will post all hardcopy comments on http://
www.regulations.gov as well. 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. Please
include sufficient information with your comments to allow us to verify
any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation used in preparing the proposed rule and DEA, 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's Mississippi Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed
rule and the DEA on the Internet at http://www.regulations.gov at
Docket Number FWS-R4-ES-2009-0079 or by mail from the Mississippi Field
Office (see FOR FURTHER INFORMATION CONTACT section).
Background
The vermilion darter (Etheostoma chermocki) was listed as
endangered under the Act on November 28, 2001 (66 FR 59367). At the
time of listing, the Service found that designation of critical habitat
was prudent. However, due to budgetary constraints, we did not
designate critical habitat at that time. On November 27, 2007, the
Center for Biological Diversity filed a lawsuit against the Secretary
of the Interior alleging that the Service failed to timely designate
critical habitat for the vermilion darter (Center for Biological
Diversity v. Kempthore (07-CV-2928)). In settlement agreement approved
by the court on April 25, 2008, the Service agreed to submit to the
Federal Register a new prudency determination, and if designation was
found to be prudent, a proposed designation of critical habitat, by
November 30, 2009, and a final designation by November 30, 2010. The
Service determined that critical habitat was prudent for the vermilion
darter and published a proposed critical habitat designation on
December 3, 2009 (74 FR 63366).
The vermilion darter is a narrowly endemic fish species, occurring
in sparse, fragmented, and isolated populations. The species is only
known in parts of the upper mainstem reach of Turkey Creek and four
tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden
2004, p. 520). Suitable streams have pools of moderate current
alternating with riffles of moderately swift current, and low water
turbidity.
The primary threats to the species and its habitat are degradation
of water quality and substrate components due to sedimentation and
other pollutants, and altered flow regimes from activities such as
construction and maintenance activities; impoundments (five within the
Turkey Creek and Dry Creek system); instream gravel extractions; off-
road vehicle usage; road, culvert, bridge, gas, and water easement
construction; and stormwater management (Drennen personal observation
1999-2009; Blanco and Mayden 1999, pp. 18-20). These activities lead to
water quality degradation and the production of pollutants (sediments,
nutrients from sewage, pesticides, fertilizers, and industrial and
stormwater effluents), stream channel instability, fragmentation, and
reduced connectivity of the habitat by altering the stream banks and
bottoms; degrading the riffles, runs, and pools; and producing changes
in the water quantity and flow that are necessary for spawning,
feeding, resting, and other life history functions of the species.
We propose to designate approximately 21 kilometers (13 miles) of
streams in 5 units as critical habitat for the vermilion darter. The
proposed critical habitat is located within the Turkey Creek watershed
in Jefferson County, Alabama.
Section 3 of the Act defines critical habitat as the specific areas
within the geographical 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 geographical 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 critical habitat are required to consult with us on the
effects of their proposed actions, under section 7(a)(2) of the Act.
Possible Exclusions from Critical Habitat and Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate critical
habitat based upon the best scientific 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 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
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habitat, provided such exclusion will not result in the extinction of
the species. We have not proposed to exclude any areas from critical
habitat. However, the final decision on whether to exclude any areas
will be based on the best scientific data available at the time of the
final designation, including information obtained during the comment
period and information about the economic impact of designation.
Accordingly, we have prepared a draft economic analysis concerning the
proposed critical habitat designation (DEA), which is available for
review and comment (see ADDRESSES section).
The intent of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for the vermilion darter that we published in the Federal
Register on December 3, 2009 (74 FR 63366). The DEA describes the
economic impacts of all potential conservation efforts for the
vermilion darter, some of which will likely be incurred whether or not
we designate critical habitat. The economic impact of the proposed
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). The baseline, therefore, represents the costs incurred
regardless of whether critical habitat is designated. The ``with
critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of 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 when evaluating
the benefits of excluding particular areas under section 4(b)(2) of the
Act. The analysis forecasts both baseline and incremental impacts
likely to occur if we finalize the proposed designation of critical
habitat.
The DEA describes economic impacts of vermilion darter conservation
efforts associated with the following categories of activity: (1) Costs
associated with economic activities, including future development, road
construction, wastewater treatment, stream alteration, and water
withdrawal; and (2) costs associated with conservation activities,
including actions associated with the Vermilion Darter Recovery Plan
and activities that aid in preservation of the vermilion darter and the
Turkey Creek watershed (e.g., preservation of the Turkey Creek Nature
Preserve and the establishment of undeveloped greenways buffering the
critical habitat and upstream tributaries). The DEA estimates the
baseline costs associated with potential future economic activities and
conservation activities for the vermilion darter to be $283,209
annually over the next 25 years, assuming a 7 percent discount rate.
The proposed critical habitat designation for the vermilion darter will
result in minimal incremental costs because any adverse modification
decision would likely be coincident to a jeopardy determination for the
same action due to the species' narrow range. Therefore, the only
incremental costs are those resulting from the additional
administrative costs by the Service and action agency to include an
adverse modification finding within the Biological Opinion and
Biological Assessment as part of a formal consultation. As a result,
the total incremental costs associated with this rule are estimated to
be $39.24 annually over the next 25 years, assuming a 7 percent
discount rate.
The DEA also discusses the potential benefits associated with the
designation of critical habitat. The primary intended benefit of
critical habitat is to support the conservation of endangered and
threatened species, such as the vermilion darter; however, these
efforts preserve ecosystems that provide valuable services to the
public and may lead to additional social welfare or market-based
benefits. Depending on the nature of the effect, benefits are
represented within the DEA either qualitatively, quantitatively, or as
a monetary value.
Required Determinations--Amended
In our December 3, 2009, proposed rule (74 FR 63366), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders 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 this determination. In this
document, we affirm the information in our proposed rule concerning:
E.O. 12866 (Regulatory Planning and Review), the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.), E.O. 12630 (Takings), Executive
Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the
Paperwork Reduction Act, the National Environmental Policy Act, the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951), and
E.O. 13211 (Energy Supply, Distribution, and Use). However, based on
the DEA data, we are amending our required determinations concerning
the Regulatory Flexibility Act (5 U.S.C. 601 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 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),
as described below. 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.
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 a
final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and 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
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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 vermilion darter would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as residential and
commercial development, road construction, wastewater treatment, stream
alteration, and water withdrawal. 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 only affects activities
conducted, funded, permitted, or authorized by Federal agencies.
If we finalize this proposed critical habitat designation, Federal
agencies must consult with us under section 7 of the Act if their
activities may affect designated critical habitat. In areas where the
vermilion darter is present, Federal agencies are already required to
consult with us under section 7 of the Act, due to the endangered
status of the species. Consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
same consultation process.
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 vermilion
darter. Since the Service and action agency are the only entity with
direct compliance costs associated with the proposed critical habitat
designation, this rule will not result in a significant impact on small
entities. Please refer to the DEA of the proposed critical habitat
designation for a more detailed discussion of potential impacts.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. For the
reasons discussed above, and based on currently available information,
we certify that if promulgated, the proposed designation would not have
a significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.
Author
The primary author of this document is the staff of the Mississippi
Fish and Wildlife Office (see ADDRESSES section).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: June 8, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-15452 Filed 6-28-10; 8:45 am]
BILLING CODE 4310-55-S