[Federal Register Volume 76, Number 192 (Tuesday, October 4, 2011)]
[Proposed Rules]
[Pages 61330-61339]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25083]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2010-0072; MO 92210-0-0009-B4]
RIN 1018-AX17
Endangered and Threatened Wildlife and Plants; Endangered Status
and Designation of Critical Habitat for Spikedace and Loach Minnow;
Revised Proposed Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; revision and reopening of the comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the October 28, 2010, public comment period on the proposed
designation of critical habitat and proposed endangered status for the
spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) under the
Endangered Species Act of 1973, as amended (Act). We also announce the
availability of a draft economic analysis (DEA) and draft environmental
assessment (EA) on the proposed designation of critical habitat for
spikedace and loach minnow, and an amended required determinations
section of the proposal. We are also announcing a revision to proposed
critical habitat units 6 (San Francisco River Subbasin) and 8 (Gila
River Subbasin) for loach minnow. We are reopening the comment period
to allow all interested parties an opportunity to comment
simultaneously on the proposed rule, revisions to the proposed rule,
the associated DEA and draft EA, 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: Comment submission: We will consider comments received on or
before November 3, 2011. Comments must be received by 11:59 p.m.
Eastern Time on the closing date. Any comments that we receive after
the closing date may not be considered in the final decision on this
action.
Public hearing: We will hold a public hearing on the critical
habitat proposal, draft economic analysis, and draft environmental
assessment, preceded by an informational session. The informational
session will be held from 3 to 4:30 p.m., followed by a public hearing
from 6:30 to 8 p.m., on October 17, 2011.
ADDRESSES: Document availability: You may obtain a copy of the DEA or
EA at http://www.regulations.gov at Docket No. FWS-R2-ES-2010-0072 or
by contacting the person listed under FOR FURTHER INFORMATION CONTACT.
Comment submission: 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-R2-
ES-2010-0072.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R2-ES-2010-0072, Division of Policy and Directives
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
Public hearing: The public hearing of October 17, 2011, will be
held at the Apache Gold Convention Center (Geronimo Room), located five
miles east of Globe, Arizona on Highway 70. People needing reasonable
accommodations in order to attend and participate in the public
hearings should contact Steve Spangle, Arizona Ecological Services
Office, at (602) 242-0210 as soon as possible (see FOR FURTHER
INFORMATION CONTACT). In order to allow sufficient time to process
requests, please call no later than one week before the hearing date.
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Office, 2321 W.
Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone (602) 242-
0210; facsimile (602) 242-2513. 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 uplisting and designation of
critical habitat for the spikedace and loach minnow that was published
in the Federal Register on October 28, 2010 (75 FR 66482), our draft
economic analysis and draft environmental assessment of the proposed
designation, 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 factors that are the basis for making a listing
determination for a species under section 4(a) of the Endangered
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which
are: (a) The present or threatened destruction, modification, or
curtailment of its habitat or range; (b) Overutilization for
commercial, recreational, scientific, or educational purposes; (c)
Disease or predation; (d) The inadequacy of existing regulatory
mechanisms; or (e) Other natural or manmade factors affecting its
continued existence.
(2) Additional information concerning the range, distribution, and
population size of this species, including the locations of any
additional populations of this species.
(3) Any information on the biological or ecological requirements of
the species.
(4) 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 there
are threats to the species from human activity, the degree of which can
be expected to increase due to the designation, and whether that
increase in threat outweighs the benefit of designation such that the
designation of critical habitat may not be prudent.
(5) Specific information on:
(a) The amount and distribution of spikedace and loach minnow
habitat;
(b) What areas occupied at the time of listing and containing
features essential to the conservation of the species should be
included in the designation and why;
[[Page 61331]]
(c) Special management considerations or protections that features
essential to the conservation of spikedace and loach minnow, as
identified in this proposal, may require, including managing for the
potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(6) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(7) Any probable economic, national security, or other impacts of
designating any area that may be included in the final designation. We
are particularly interested in any impacts on small entities or
families, and the benefits of including or excluding areas that exhibit
these impacts.
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
(9) Information on whether the benefit of an exclusion of any
particular area outweighs the benefit of inclusion under section
4(b)(2) of the Act. We specifically solicit the delivery of spikedace-
and loach minnow-specific management plans for areas included in this
proposed designation. Management plans considered in previous critical
habitat exclusions for spikedace and loach minnow are available through
the contact information listed in FOR FURTHER INFORMATION CONTACT.
(10) Information on the projected and reasonably likely impacts of
climate change on spikedace and loach minnow and on the critical
habitat areas we are proposing.
If you submitted comments or information on the proposed rule (75
FR 66482) during the initial comment period from October 28, 2010, to
December 27, 2010, please do not resubmit them. We will incorporate
them into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
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 are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule, DEA, or draft environmental assessment by one of the methods
listed in ADDRESSES. We will not consider comments sent by e-mail or
fax or to an address not listed in ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. 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.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule, DEA, and draft
environmental assessment will be available for public inspection on
http://www.regulations.gov at Docket No. FWS-R2-ES-2010-0072, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Arizona Ecological Services 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-R2-ES-2010-0072, or by mail from the Arizona Ecological Services
Office (see FOR FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the spikedace and loach minnow
in this document. For more information on previous Federal actions
concerning the spikedace and loach minnow, refer to the proposed
designation of critical habitat published in the Federal Register on
October 28, 2010 (75 FR 66482). For more information on the spikedace
and loach minnow or their habitat, refer to the final listing rule
published in the Federal Register on (51 FR 23769, July 1, 1986
(spikedace), and 51 FR 39468, October 28, 1986 (loach minnow), and the
previous critical habitat designation (72 FR 13356, March 21, 2007),
which are available online from the Arizona Ecological Services Office
(see FOR FURTHER INFORMATION CONTACT). The recovery plans for spikedace
and loach minnow were both finalized in 1991, and we have initiated
updates and revisions for both plans.
On December 20, 2005, we published a proposed critical habitat
designation (70 FR 75546), and on March 21, 2007, we published a final
critical habitat designation (72 FR 13356) for the spikedace and loach
minnow. The 2007 designation was challenged in Coalition of Arizona/New
Mexico Counties for Stable Economic Growth v. Salazar, (D.N.M.), which
was consolidated with another lawsuit brought by the Center for
Biological Diversity. Both parties contested the validity of the
designation, but for different reasons. We filed a motion for voluntary
remand of the final rule on February 2, 2009, in order to reconsider
the final rule in light of a recently issued Department of the Interior
Solicitor's Opinion, which discusses the Secretary of the Interior's
authority to exclude areas from a critical habitat designation under
section 4(b)(2) of the Act. On May 4, 2009, the Court granted our
motion for voluntary remand, but retained the 2007 critical habitat
designation pending promulgation of a new designation.
On October 28, 2010, we published a proposed rule to designate
critical habitat for the spikedace and loach minnow (75 FR 66482). We
proposed 1,168 kilometers (km) (726 miles (mi)) of streams as critical
habitat for spikedace, and 1,172.4 km (728.5 mi) of streams as critical
habitat for loach minnow. Of this total mileage, 874 km (543 mi) of
streams are overlapping (proposed for designation for both species). We
are revising critical habitat unit 6 (San Francisco River Subbasin) for
loach minnow by adding 22.8 km (14.2 mi) to the San Francisco River. In
addition, we are proposing 31.4 km (19.5 mi) of Bear Creek for loach
minnow in Grant County, New Mexico. This would be an addition to
critical habitat unit 8 (Gila River subbasin). The explanation for
these proposed changes are discussed below. The October 28, 2010,
proposal had a 60-day comment period, ending December 27, 2010. We
received two requests for public hearing, and have scheduled a public
hearing on the date specified above in DATES and at the location
specified above in ADDRESSES. We will submit for publication in the
Federal Register a final critical habitat designation for spikedace and
loach minnow on or before October 28, 2011.
We are notifying the public of several changes made to the proposed
listing rule. First, in the proposed rule, we defined occupied areas as
those streams for which we have species records up to 1986, when they
were first listed (51 FR 39468, October 28, 1986, for loach minnow; and
51 FR 23769, July 1, 1986, for spikedace), as well as areas determined
to be occupied since listing. To improve clarity, we are revising the
[[Page 61332]]
definition. We propose to include as occupied those areas which were
identified as occupied for each species in the original listing
documents, as well as any additional areas determined to be occupied
after 1986. Our reasoning for the inclusion of these additional areas
(post-1986) is that it is likely that those areas were occupied at the
time of the original listings, but had not been detected in surveys.
This change in definition does not result in a change to any of the
areas included or excluded as critical habitat in the proposed rule,
and the total amount designated as critical habitat will not change,
except for the addition of critical habitat along the San Francisco
River discussed below. However, some of the areas previously identified
as occupied habitat in the proposed rule may now be classified as
essential unoccupied habitat.
Second, we would like to provide clarification regarding the
criteria that we used to identify critical habitat in our proposed
rule. We based our criteria, in part, on a preliminary assessment of
steps necessary to achieve recovery of spikedace and loach minnow. We
refer to these criteria as a ruleset and the elements are described in
the ``Criteria Used to Identify Critical Habitat'' section of the
proposed rule (October 28, 2010, 75 FR 66482). One of the criteria used
evaluates the potential of a stream segment to ``connect to other
occupied areas, which will enhance genetic exchange between
populations.'' In the proposed rule, we identified the following three
segments under this criterion: Granite Creek in the Verde River
Subbasin for both species; and Deer Creek and Turkey Creek for loach
minnow in the San Pedro Subbasin. After additional review, we conclude
that these three segments do not connect to other occupied areas, and
there are no other unoccupied stream segments in the proposed rule that
connect occupied habitats. At this time, we are unable to identify
other areas that could serve as connective corridors between occupied
and unoccupied habitat. Therefore, we are removing this criterion as an
element of the rule set. The removal of this criterion does not alter
the proposed rule or the amount of critical habitat being proposed,
except for the revision within unit 6, as the areas proposed meet one
or more of the remaining criteria outlined in the ruleset.
We acknowledge the absence of connective corridors in the proposed
designation. We continue to believe that both loach minnow and
spikedace conservation will require genetic exchange between the
remaining populations to allow for genetic variation, which is
important for species' fitness and adaptive capability. Our inability
to identify unoccupied streams that would provide connections between
occupied areas is a result of the highly degraded condition of
unoccupied habitat and the uncertainty of stream corridor restoration
potential. We also acknowledge that other areas, outside of the
critical habitat designation, may be necessary for long-term
conservation. These areas will be subject to future on-the-ground
recovery actions and opportunities under section 7(a)(1) of the Act.
Furthermore, we will address the issue of restoration of genetic
exchange in our revised Recovery Plan.
Third, we would like to correct an error we made in the October 28,
2010, proposed rule. The error is within Unit 6 (San Francisco River
Subbasin), and applies to the amount of stream miles designated as
critical habitat for loach minnow on the San Francisco River. On pp.
66515, 66533 (legal description), and 66534 (map), we state that 181.0
km (112.3 mi) of the San Francisco River, from the confluence with the
Gila River in Greenlee County, Arizona, upstream to the confluence with
the Tularosa River in Catron County, New Mexico, is included in the
designation. We intended to use the same area described in the 2007
final rule (72 FR 13356); that is, 203.5 km (126.5 mi) of the San
Francisco River, from the confluence with the Gila River upstream to
the mouth of the Box, a canyon above the town of Reserve in Catron
County, New Mexico. This will add 22.8 km (14.2 mi) to the current
designation for loach minnow. The total amount of designated habitat
for loach minnow is 1,164 km (723 mi), rather than the 1,141 km (709
mi) referred to in the October 28, 2010, proposed rule. The unit
descriptions, legal description, and map will be corrected in the final
rule. The stream miles (181.0 km (112.3)) of the San Francisco River
designated for spikedace will remain the same.
Fourth, we are going to propose an additional stream segment in New
Mexico for loach minnow. In our October 28, 2010, proposed rule, Bear
Creek in Grant County, New Mexico, was not included in the proposed
critical habitat designation. Although we had records of loach minnow
occurrence in Bear Creek in 2005, we concluded that most of the stream
was intermittent and that loach minnow were not likely to persist there
over time. We also concluded that the loach minnow in Bear Creek likely
moved upstream during a period of high flow when Bear Creek was
temporarily connected to the Gila River where loach minnow are known to
persist. After the receipt of agency and public comments and our
internal review, we have also been made aware of loach minnow records
in Bear Creek from 2006. Bear Creek would be categorized as a 1a stream
under the ruleset found in the proposed rule because of the records of
loach minnow from 2005 and 2006. Given the presence of loach minnow in
the upper portion of Bear Creek, in this revised proposed rule in unit
8, we propose to include 31.4 km (19.5 mi) of Bear Creek from the
confluence with the Gila River upstream to the confluence with Sycamore
and North Fork Walnut creeks. We recognize that portions of this stream
are intermittent, but also acknowledge that streams with intermittent
flows can function as connective corridors through which the species
may move when the area is wetted. We will continue to solicit
additional information on this stream segment during the open comment
period to aid us in making a determination of the suitability of
including this stream in the final rule.
We have a final clarification on the language used in our proposed
rule. Under the Act and its implementing regulations, we are required
to identify the physical and biological features (PBFs) essential to
the conservation of spikedace and loach minnow in areas occupied at the
time of listing, focusing on the features' primary constituent elements
(PCEs). We consider PCEs to be the elements of physical and biological
features that, when laid out in the appropriate quantity and spatial
arrangement to provide for a species' life-history processes, are
essential to the conservation of the species. We outline the
appropriate quantities and spatial arrangements of the elements in the
Physical and Biological Features (PBFs) section of the October 28,
2010, proposed rule. For example, spawning substrate would be
considered an essential feature, while the specific composition (sand,
gravel, and cobble) and level of embeddedness are the elements (PCEs)
of that feature.
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
[[Page 61333]]
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 must consult with us on the effects of their proposed actions,
under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
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 habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan.
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 (DEA) concerning the
proposed critical habitat designation, which is available for review
and comment (see ADDRESSES).
Draft Economic Analysis
To consider the economic impacts ``of specifying any particular
area as critical habitat,'' as section 4(b)(2) of the Act requires, the
Service must first identify the probable economic impacts that stem
from a designation (50 CFR 424.19). We have interpreted ``probable
economic impacts'' to be those potential impacts that are reasonably
likely to occur as a result of the critical habitat designation. The
identification of the probable incremental effects of a critical
habitat designation involves comparing the economic and other relevant
impacts that would be present without the designation of a particular
area as critical habitat with what would be expected if the particular
area is included in the designation--in other words, a comparison of
the world with and without critical habitat. A key aspect of this
comparison requires identifying, at a general level, the additional
protections for species (e.g., project modification or conservation
measures) or changes in behavior (e.g., increased awareness that may
result in reinitiations of consultation, or additional consultations,
under section 7 of the Act; compliance with other laws such as State
environmental oversight regulations) and the corresponding costs and
impacts to society that may result as a consequence of the critical
habitat designation. The scope of probable impacts, then, is inevitably
determined by the purpose and function of critical habitat as
understood at the time of designation and the conservation measures in
place prior to the designation for the particular species and its
habitat.
The Service traditionally understood the first sentence of section
4(b)(2) of the Act to require consideration of only those impacts that
are solely attributable to--that would not occur ``but for''--the
proposed critical habitat designation. Under this approach, known as
the ``incremental effects analysis'' (otherwise referred to by the
courts as the ``baseline approach''), the Service isolates the probable
impacts that would result solely from the designation (incremental
effects) from those that stem also from other causes, such as the
underlying listing determination or other conservation measures being
implemented for the species and its habitat (baseline effects). Once
identified, the resulting incremental effects of the designation are
then used in the balancing analysis, if one is conducted, under the
second sentence of section 4(b)(2) for evaluating the benefits of
including a particular area in, or excluding it from, critical habitat,
and for evaluating compliance with the required determinations.
However, the application of this relatively straightforward
paradigm had become problematic by the late 1990s, in light of our
interpretations and practices that had the effect of minimizing the
role of critical habitat in safeguarding species' recovery. This
stemmed in part from the Service's and National Marine Fisheries
Service's 1986 joint regulations implementing the interagency
consultation provisions of section 7 of the Act (50 CFR 402). Those
regulations govern the assessment of Federal actions that may have
adverse impacts on listed species or their critical habitat. They
interpret and implement the statute's prohibitions against actions that
are likely to jeopardize the continued existence of listed species or
result in destruction or adverse modification of critical habitat.
However, two key definitions (``jeopardize the continued existence of''
and ``destruction or adverse modification'') had been defined in a
similar manner in that they each evaluated impacts on both survival and
recovery of a species.
Moreover, our general practice had been to infrequently designate
critical habitat in areas where the species was not currently present;
because consultation under the jeopardy standard can occur wherever the
species is present, this limited the circumstances in which a
consultation under the adverse-modification standard would take place
without a concomitant consultation under the jeopardy standard. Because
the section 7 prohibition against Federal agency actions that may
result in ``destruction or adverse modification'' is the most
significant and direct protection afforded by a critical habitat
designation, equating the two standards while making them occur in
conjunction with each other made it practically impossible to
distinguish the protections stemming from critical habitat (i.e.,
incremental effects) from those afforded a species by it being listed
as an endangered or threatened species (i.e., baseline effects).
As a result, case law significantly influenced the Service's
methodology for evaluating the probable economic effects of a critical
habitat designation. In 2001, the United States Court of Appeals for
the Tenth Circuit held that, in light of the narrow role reserved for
critical habitat under the regulations and the Service's view at the
time, the Service was legally precluded from relying on the
incremental-effects approach. New Mexico Cattle Growers Ass'n v. United
States Fish & Wildlife Serv., 248 F.3d 1277, 1283-85 (10th Cir. 2001).
The court specifically identified the source of the problem as being
``FWS's long held policy position that [critical habitat
determinations] are unhelpful, duplicative, and unnecessary.'' The
court held that this position was rooted in the interpretations of the
``jeopardy standard'' and the ``adverse
[[Page 61334]]
modification standard'' in 50 CFR 402.02, which the court saw as being
defined either to be ``virtually identical'' or such that the latter
was subsumed into the ``jeopardy standard.''
To satisfy section 4(b)(2) of the Act in light of the then-current
regulations, the court ruled that the Service must consider all impacts
that stem in any way from the proposed critical habitat designation,
even if they are also partially caused (or, caused ``coextensively'')
by listing. In other words, even if there was no ``but for'' economic
impact as a result of critical habitat designation, the Service was
still required to consider the coextensive economic impacts. The court
did not define ``coextensive'' economic analysis; however, the Services
interpreted ``coextensive'' to be the sum of anticipated baseline and
incremental economic impacts. As a consequence, following the New
Mexico Cattle Growers decision, the Service began to apply a
coextensive approach that evaluated all costs related to the
conservation of the species and its habitat, including those attributed
to the species being listed as an endangered or threatened species.
Meanwhile, other courts began to conclude that the definition of
``destruction or adverse modification'' in the 1986 regulations did not
adequately fulfill the statute's conservation purpose. In fact, the
Ninth Circuit in Gifford Pinchot Task Force v. U.S. Fish & Wildlife
Service, 378 F.3d 1059 (9th Cir.), modified, 387 F.3d 968 (9th Cir.
2004), invalidated the regulatory definition of ``destruction or
adverse modification.'' Following the Ninth Circuit's decision, most
district court decisions have rejected coextensive economic analyses.
For example, the court in Cape Hatteras Access Pres. Alliance v DOI,
344 F. Supp. 2d 108, 128-30 (D.D.C. 2004) (Cape Hatteras) found that an
evaluation of the incremental effect of a critical habitat designation
was reasonable and permissible. In that decision the court stated,
``[t]he baseline approach is a reasonable method for assessing the
actual costs of a particular critical habitat designation. To find the
true cost of a designation, the world with the designation must be
compared to the world without it. * * * In order to calculate the costs
above the baseline, those that are the ``but for'' result of
designation, the agency may need to consider the economic impact of
listing and other events that contribute to and fall below the
baseline.''
Similarly, in 2010, the Ninth Circuit concluded that the faulty
underlying premises that led to the invalidation of the incremental
effects (baseline approach) in 2001 no longer applied, and that our
consideration of ``but for'' impacts in the increment above the
baseline is permissible under the Act (Arizona Cattle Growers Ass'n v.
Salazar, 606 F.3d 1160, 1173 (9th Cir. 2010). It, therefore, held, in
light of this change in circumstances, that ``the FWS may employ the
baseline approach in analyzing a critical habitat designation.'' In so
holding, the court noted that the baseline approach is ``more logical
than'' the coextensive approach. The Ninth Circuit further reaffirmed
its conclusion in Home Builders Ass'n of Northern California v. U.S.
Fish & Wildlife Serv. 616 F.3d 983 (9th Cir. 2010), in which plaintiffs
challenged the use of the Service's incremental-effects (baseline)
approach. The Court held that the Service properly analyzed the
economic impacts of the critical habitat designation for vernal pool
species and stated that the plain language of the Act directs the
agency to consider only those impacts caused by the critical habitat
designation itself.
In 2008, the Solicitor for the Department of the Interior drafted a
Memorandum Opinion summarizing case law on the Secretary's authority to
exclude areas from a critical habitat designation under section 4(b)(2)
of the Act, including the appropriate use of economic analyses in
critical habitat determinations. [Department of the Interior Solicitor
Memorandum, October 3, 2008, The Secretary's Authority to Exclude Areas
from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act (Opinion M-37016)] In this opinion, the
Solicitor concluded that--
the reasoning in the Cape Hatteras line of cases persuasive for the
proposition that ``to find the true cost of a designation, the world
with the designation must be compared to the world without it.''
Cape Hatteras, 344 F. Supp. 2d at 130. The purpose of excluding an
area from critical habitat is to avoid the impacts of the
designation, or to realize the benefits that the Secretary
determines will flow from that exclusion. Benefits of exclusion are
often in the form of avoiding a cost imposed by the designation. By
definition, when impacts are completely ``coextensive'', ``such that
they will occur even if the area is not designated, any ``cost''
imposed by the designation will not be avoided if the area at issue
is excluded. Therefore, exclusion of the area based on such costs
would serve no purpose.
Consistent with recent case law and the 2008 Solicitors Memorandum
Opinion, the Service concludes that the appropriate analysis to
consider economic impacts of a critical habitat designation is to limit
the evaluation of the probable economic effects to those that are
incremental to, or result solely from, the designation itself. The
Service also believes that the use of an incremental-effects analysis
is sufficient to fulfill the requirement under section 4(b)(2) of the
Act. However, given that we do not have a new definition of
``destruction or adverse modification,'' there may be certain
circumstances where we may want to evaluate impacts beyond those that
are solely incremental. Such is the case with spikedace and loach
minnow, where we have extensive case law and determinations of effects
that suggest we evaluate not only incremental effects, but also
coextensive effects. While we think that the incremental effects
approach is appropriate and meets the intent of the Act, we have taken
a conservative approach in this instance to ensure that we are fully
evaluating the probable effects of this designation.
The Service attempted to clarify the difference between the
jeopardy and adverse modification standards for the spikedace and loach
minnow critical habitat in our Incremental Effects Memorandum. This
memorandum outlined typical conservation actions, project
modifications, and minimization measures that would be requested by the
Service to meet the ``not likely to destroy or adversely modify''
standard, above what would be requested to avoid jeopardy to the
species. This evaluation of the incremental effects as outlined in the
Incremental Effects Memorandum has been used as the basis to develop
the draft economic analysis of this proposed designation of critical
habitat.
The purpose of the draft economic analysis is to identify and
analyze the probable incremental economic impacts associated with the
proposed critical habitat designation for the spikedace and loach
minnow. The analysis focuses on quantification of the incremental costs
of this rulemaking, but provides information on expected costs of
conservation efforts expected to occur under the regulatory baseline as
context. The ``incremental'' economic impacts are those not expected to
occur absent the designation of critical habitat for the spikedace and
loach minnow. For a further description of the methodology of the
analysis, see Chapter 2, ``Framework for Analysis,'' of the draft
economic analysis.
The draft economic analysis provides estimated costs of the
reasonably probable incremental economic impacts of the proposed
critical habitat designation for the spikedace and loach minnow over
the next 20 years, which was determined to be the appropriate period
for analysis because limited planning information is available for
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most activities to forecast activity levels for projects beyond a 20-
year timeframe. It also notes that the timeframe over which certain
future impacts can be forecast may be a shorter period. The draft
economic analysis quantifies economic impacts of spikedace and loach
minnow conservation efforts associated with the following categories of
activity:
(1) Water management: Including agricultural, municipal, and
industrial water diversions. Other affected activities may include
flood control and dam operation and maintenance.
(2) Grazing: Particularly, increased sedimentation and erosion
related to grazing on Bureau of Land Management and U.S. Forest Service
lands.
(3) Mining: In particular, copper mining operations along Eagle
Creek previously have expressed concerns about the potential for
critical habitat designation to affect ongoing operations.
(4) Species management: Including installation of fish barriers,
native species recovery, annual monitoring, and impacts to
sportfishing.
(5) Residential and commercial development: Including construction
in riparian areas and runoff from roads and golf courses.
(6) Transportation: Particularly construction and maintenance of
bridges, roads, and culverts.
(7) Fire Management. Including increased ash, change in water
temperature, debris flows, and the use of chemical flame retardants.
The draft economic analysis also describes various concerns
expressed by Arizona Tribes concerning possible restrictions on their
water rights or water management, but does not quantify potential
tribal impacts, except additional administrative costs.
Total incremental impacts for all of the above activities are
estimated to be $2.29 to $47.2 million over 20 years ($202,000 to $4.16
million annually) using a real rate of seven percent. However, as
discussed above, we are taking a more conservative approach in that we
are also evaluating coextensive effects (the sum of baseline and
incremental effects). Coextensive effects are estimated to be $75.29 to
$169.2 million over 20 years ($6.602 to $15.16 million annualized)
using a real rate of seven percent. Quantified baseline costs are
primarily associated with:
(1) Water conservation and protection measures that are currently
ongoing at Fort Huachuca related to the San Pedro River unit ($4.4
million, annualized at a seven percent discount rate). Many of these
actions have been undertaken at the Fort to be protective of the
Huachuca water umbel, but are expected to provide baseline protections
to the spikedace and loach minnow.
(2) $0.1 million to $2.6 million (annualized at a seven percent
discount rate) related to grazing-related conservation efforts,
including riparian fencing construction and maintenance.
(3) $1.7 to $3.0 million (annualized at a seven percent discount
rate) in other species management efforts, including activities
undertaken by the U.S. Bureau of Reclamation, the Arizona Game and Fish
Department, and the New Mexico Department of Game and Fish.
As we stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, 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 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 this
species.
Draft Environmental Assessment
The purpose of this draft EA, prepared pursuant to the National
Environmental Policy Act (NEPA), is to identify and disclose the
environmental consequences resulting from the proposed action of
designating critical habitat for the spikedace and loach minnow. In the
draft EA, three alternatives are evaluated: Alternative A, the proposed
rule with exclusion areas; Alternative B, proposed rule without
exclusion areas; and the no action alternative. Under Alternative A,
critical habitat segments flowing through tribal and other lands could
potentially be excluded in the final rule based on economic impact,
national security, or other relevant impacts. The potential exclusion
areas discussed in the proposed rule include stream segments that flow
through Yavapai-Apache, White Mountain Apache, and San Carlos tribal
lands and through lands owned by Freeport-McMoRan. Alternative B is the
current proposal, and the no action alternative is equivalent to the
2007 final rule designating critical habitat for spikedace and loach
minnow. The no action alternative is required by NEPA for comparison to
the other alternatives analyzed in the draft EA.
As we stated earlier, we are soliciting data and comments from the
public on the draft EA, as well as all aspects of the proposed rule. We
may revise the proposed rule or supporting documents to incorporate or
address information we receive during the comment period on the
environmental consequences resulting from our designation of critical
habitat.
Required Determinations--Amended
In our proposed rule, 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 and the draft environmental assessment. We have
now made use of the DEA data to make these initial determinations. In
this document, we affirm the information in our proposed rule
concerning Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform),
E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.), and the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951). However, based on the DEA
data and the draft environmental assessment, we are amending our
required determination concerning the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), E.O. 12630 (Takings), and National Environmental
Policy Act (42 U.S.C. 4321 et seq.).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)),
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. 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;
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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 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 spikedace and loach minnow would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities, such as mining, species
management, transportation, and fire management activities, water
management, grazing, and development. 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. In areas where the species are present, Federal
agencies already are required to consult with us under section 7 of the
Act on activities they fund, permit, or implement that may affect the
species. If we finalize this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing 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 spikedace and
loach minnow. No incremental impacts are anticipated for mining,
species management, transportation, or fire management activities. The
DEA concluded that incremental impacts may be borne by water
management, grazing, and development activities. The analysis estimates
that 92 small entities may be affected by the rule, each with estimated
revenues ranging from $750,000 to $6.4 million per entity. Depending on
the activity, annualized impacts may represent between 0 percent and
1.18 percent of annual revenues. Please refer to the DEA of the
proposed critical habitat designation for a more detailed discussion of
potential economic 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
above reasons 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.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Spikedace and Loach minnow in a takings implications
assessment. Critical habitat designations do not affect landowner
actions that do not require Federal funding or permits, nor do they
preclude development of habitat conservation programs or issuance of
incidental take permits to allow actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that these proposed designations of critical habitat do not
pose significant takings implications for lands within or affected by
the designations. However, we will further evaluate this issue as we
complete our final economic analysis, and review and revise this
assessment as appropriate.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).] However, when the range of the species includes States
within the Tenth Circuit, such as that of the Spikedace and Loach
minnow, under 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 undertake a NEPA analysis for critical habitat
designation. In accordance with the Tenth Circuit, we have completed a
draft environmental assessment to identify and disclose the
environmental consequences resulting from the proposed designations of
critical habitat for the Spikedace and Loach minnow. Our preliminary
determination is that the designations of critical habitat for the
Spikedace and Loach minnow would not have direct impacts on the
environment. However, we will further evaluate this issue as we
complete our final environmental assessment.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended at 75 FR 66482, October 28, 2010, as follows:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.95(e), in the entry for ``Loach minnow (Tiaroga
cobitis),'' by revising paragraphs (6), (12)(i) and (v), and (14)(vi)
and by adding paragraph (14)(vii) to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Loach minnow (Tiaroga cobitis)
* * * * *
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(6) Note: Index map for loach minnow critical habitat units
follows:
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[GRAPHIC] [TIFF OMITTED] TP04OC11.013
* * * * *
(12) * * *
(i) San Francisco River for approximately 202.6 km (125.9 mi) of
the San Francisco River extending from the confluence with the Gila
River in Arizona in Township 5 South, Range 29 East, southeast quarter
of section 21 upstream to Township 6 South, Range 19 West, section 2 in
New Mexico.
* * * * *
(v) Note: Map of Unit 6, San Francisco Subbasin, follows:
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[GRAPHIC] [TIFF OMITTED] TP04OC11.014
* * * * *
(14) * * *
(vi) Bear Creek for approximately 31.4 km (19.5 mi) extending from
the confluence with the Gila River at Township 15 South, Range 17 West,
center of section 33 upstream to the confluence with Sycamore and North
Fork Walnut creeks at Township 16 South, Range 15 West, northeast
quarter of section 15.
(vii) Note: Map of Unit 8, Gila River Subbasin, follows:
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[GRAPHIC] [TIFF OMITTED] TP04OC11.015
* * * * *
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: September 20, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-25083 Filed 10-3-11; 8:45 am]
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