[Federal Register Volume 76, Number 28 (Thursday, February 10, 2011)]
[Proposed Rules]
[Pages 7528-7530]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2882]
[[Page 7528]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2010-0093; MO 92210-0-0009]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To Revise Critical Habitat for Vernal Pool Fairy Shrimp and
Vernal Pool Tadpole Shrimp
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding to revise critical habitat.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to revise critical habitat for vernal pool
fairy shrimp (Branchinecta lynchi) and vernal pool tadpole shrimp
(Lepidurus packardi) under the Endangered Species Act of 1973, as
amended (Act). Following a review of the petition, we find that the
petition does not present substantial scientific information indicating
that revision of the critical habitat for vernal pool fairy shrimp and
vernal pool tadpole shrimp may be warranted. Therefore, with the
publication of this notice, we have determined that a 12-month finding
on this petition is not warranted and will not be conducted.
DATES: The finding announced in this document was made on February 10,
2011. You may submit new information concerning this species or its
habitat for our consideration at any time.
ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number [FWS-R8-ES-2010-0093]. Supporting
documentation we used in preparing this finding is available for public
inspection, by appointment, during normal business hours at the
Sacramento Fish and Wildlife Office, 2800 Cottage Way W-2605,
Sacramento, CA 95825. New information, material, comments, or questions
concerning this species or its habitat may be submitted to us at any
time.
FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Office Supervisor,
or Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service,
Sacramento Fish and Wildlife Office, 2800 Cottage Way W-2605,
Sacramento, CA 95825, by telephone at 916-414-6600, or by facsimile at
916-414-6713. People who use a telecommunications device for the deaf
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(D) of the Act of 1973, as amended (16 U.S.C. 1531
et seq.), requires that we make a finding on whether a petition to
revise critical habitat for a species presents substantial scientific
information indicating that the revision may be warranted. In
determining whether substantial information exists, we take into
account several factors, including information submitted with, and
referenced in, the petition and all other information readily available
in our files. Our listing regulations at 50 CFR 424.14(c)(2)(i) further
require that, in making a finding on a petition to revise critical
habitat, we consider whether the petition contains information
indicating that areas petitioned to be added to critical habitat
contain the physical and biological features essential to, and that may
require special management to provide for, the conservation of the
species.
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. The Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor.
To the maximum extent practicable, we are to make this finding
within 90 days of our receipt of the petition and publish our notice of
the finding promptly in the Federal Register. We are to base this
finding on information provided in the petition, supporting information
submitted with the petition, and information otherwise available in our
files. If we find that a petition presents substantial information
indicating that the revision may be warranted, we are required to
determine how we intend to proceed with the requested revision within
12 months after receiving the petition and promptly publish notice of
such intention in the Federal Register.
Petition History
On August 29, 2008, we received a petition dated August 28, 2008,
from ECORP Consulting, Inc., on behalf of Conservation Resources,
requesting that we revise critical habitat for vernal pool fairy shrimp
(Branchinecta lynchi) and vernal pool tadpole shrimp (Lepidurus
packardi). The petition clearly identified itself as such and included
the requisite identification information for the petitioner, as
required in 50 CFR 424.14(a). The petitioners did not use the current
unit numbers for the critical habitat units when referring to critical
habitat units; however, the map and location description provided in
the petition indicate that the critical habitat units referred to are
critical habitat Unit 14A for the vernal pool fairy shrimp and Unit 9B
for the vernal pool tadpole shrimp designated in the final rule
published in the Federal Register on February 10, 2006 (71 FR 7119-
7120, 7153, 7194). The petition requested that, pursuant to the Act,
the Service modify the boundaries of these units to include the
northern 2,800 acres (ac) (1,133 hectares (ha)) of the parcel referred
to as Gill Ranch (ECORP 2008, p. 1).
Previous Federal Actions
The vernal pool fairy shrimp and the vernal pool tadpole shrimp
were listed as threatened and endangered, respectively, on September
19, 1994 (59 FR 48136). Critical habitat for 4 vernal pool crustaceans
and 11 vernal pool plant species in California and southern Oregon,
including the vernal pool fairy shrimp and vernal pool tadpole shrimp,
was originally designated in a final rule published in the Federal
Register on August 6, 2003 (68 FR 46684).
The 2003 final critical habitat for the 4 vernal pool crustaceans
and 11 vernal pool plant species in California and southern Oregon
totaled approximately 744,070 ac (301,114 ha), and excluded 5 entire
counties (Butte, Madera, Merced, Sacramento, and Solano Counties) from
the designation of critical habitat due to economic reasons under
section 4(b)(2) of the Act. In total, approximately 494,583 ac (200,151
ha) of critical habitat was identified within the five counties, but
later excluded.
In January 2004, the Butte Environmental Council and several other
organizations filed a complaint alleging that we violated the Act
(Butte Environmental Council et al. v. Norton. et al., Case No. CIV S-
04-0096 WBS KJM (E.D. Cal.).) On October 29, 2004, the court signed a
Memorandum and Order in that case remanding the final designation to
the Service. In particular, the court ordered us to: (1) Reconsider
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the noneconomic exclusions from the final designation of critical
habitat, and publish a new final determination as to those lands within
120 days; and (2) reconsider the economic exclusion of the five
California counties based on potential economic impacts, and publish a
new final determination no later than July 31, 2005.
A final rule for critical habitat reevaluating the noneconomic
exclusions from the 2003 final rule was published in the Federal
Register on March 8, 2005 (70 FR 11140), and a final rule evaluating
economic exclusions from the 2003 final rule was published in the
Federal Register on August 11, 2005 (70 FR 46924). A final rule
containing administrative revisions with species-by-unit designations
was published in the Federal Register on February 10, 2006 (71 FR
7118). This final rule provided 35 critical habitat units designated
for the vernal pool fairy shrimp totaling 597,821 ac (241,930 ha), and
18 critical habitat units designated for the vernal pool tadpole shrimp
totaling 228,785 ac (92,586 ha). The March 8, 2005, confirmation of the
noneconomic exclusions (70 FR 11140) addressed the first requirement of
the October 2004 court-ordered remand, while the August 11, 2005, final
critical habitat rule (70 FR 46924) addressing the economic exclusions
under section 4(b)(2) of the Act addressed the second requirement of
the October 2004 court-ordered remand.
The August 11, 2005, final critical habitat rule identified two
overlapping units for vernal pool tadpole shrimp and vernal pool fairy
shrimp. These two overlapping units were specifically identified in the
February 10, 2006, Federal Register (71 FR 7151-7153, 7192-7194) for
each species as units 9A and 9B for vernal pool tadpole shrimp and
units 14A and 14B for vernal pool fairy shrimp. Approximately 9,481 ac
(3,837 ha) of habitat determined to contain the physical and biological
features essential to the conservation of the vernal pool tadpole
shrimp and vernal pool fairy shrimp within these overlapping units was
excluded from the final designation based on economic impacts. See
Application of Section 4(b)(2)--Economic Exclusion to 23 Census Tracts
section of the August 11, 2005, Federal Register (70 FR 46949-46952),
for our rationale on the exclusion of these areas.
On May 31, 2007, the Service published a clarification of the
economic and noneconomic exclusions for the 2005 final rule designating
critical habitat for 4 vernal pool crustaceans and 11 vernal pool
plants in California and southern Oregon (72 FR 30279), resulting in a
final judgment from the court in favor of the Service. The Home
Builders Association of Northern California and other industry groups
appealed the judgment; however, on August 9, 2010, the Ninth Circuit
issued a decision in favor of the Service, upholding the critical
habitat designations for 15 listed vernal pool species (Home Builders
Association of Northern California v. Norton. et al. (Case No. CV-05-
00629-WBS (E.D. Cal.))).
Species Information
For current information on the biology, status, and habitat needs
of the vernal pool fairy shrimp and vernal pool tadpole shrimp, refer
to the Service's 5-Year Review of the vernal pool fairy shrimp (Service
2007b), the 5-Year Review of the vernal pool tadpole shrimp (Service
2007c), and the Recovery Plan for Vernal Pool Ecosystems of California
and Southern Oregon (Service 2005) available on the Internet at http://www.fws.gov/sacramento/es/5_year_reviews.htm and http://www.fws.gov/sacramento/es/recovery_plans/vp_recovery_plan_links.htm.
Evaluation of Information for This Finding
In making this 90-day finding, we evaluated whether information
regarding the revision of critical habitat for the vernal pool fairy
shrimp and vernal pool tadpole shrimp, as presented in the petition and
other information available in our files, is substantial, thereby
indicating that the petition action may be warranted. Our evaluation of
this information is presented below.
The petitioner seeks to revise the critical habitat designation by
expanding unit 14A for vernal pool fairy shrimp and unit 9B for vernal
pool tadpole shrimp to include approximately an additional 2,800 ac
(1,133 ha), located within the Cosumnes/Rancho Seco Core Area
(Sacramento County) in the Southeastern Sacramento Valley Vernal Pool
Region (Service 2005). The 2,800-ac (1,133-ha) area is part of Gill
Ranch, which is largely dedicated to the conservation of vernal pools
and listed vernal pool species. The petition summarizes the primary
constituent elements (PCEs) for vernal pool fairy shrimp and vernal
pool tadpole shrimp as presented in the February 10, 2006,
administrative revisions (71 FR 7142, 7183). The petition states that
the 2,800 ac (1,133 ha) addressed in the petition contain the PCEs and
support numerous wetland features that are essential for reproduction,
germination [sic], hatching, maturation, feeding, shelter, and
dispersal of vernal pool crustaceans (ECORP 2008, p. 4-5). The
information in the petition is consistent with information in our
files. We agree that this area contains the physical and biological
features essential to the conservation of the species. However, the
2,800-ac (1,133-ha) parcel was originally designated as critical
habitat in the August 6, 2003, final rule (68 FR 46684), but was later
excluded from the critical habitat designation in the August 11, 2005,
final rule (70 FR 46924), when the Secretary decided to exercise his
discretion under section 4(b)(2) of the Act to exclude this parcel due
to economic impacts. The petition does not contain any information
suggesting that the exclusion due to economic impacts was done in
error, or that the economic analysis was flawed.
Finding
In making this finding, we relied on information provided by the
petitioners, sources cited by the petitioners, and information readily
available in our files. We evaluated the information in accordance with
50 CFR 424.14(c). Our process for making this 90-day finding under
section 4(b)(3)(D) of the Act and 50 CFR 424.14(c) of our regulations
is limited to a determination of whether the information in the
petition meets the ``substantial scientific information'' threshold.
We find that the petition does not present substantial information
to indicate that revision of critical habitat to include the proposed
property may be warranted. The Service agrees that the property
contains the PCEs, and it was designated critical habitat in the 2003
final rule (68 FR 46684). However, the 2,800 ac (1,133 ha) were
excluded for economic reasons in the 2005 final rule (70 FR 46924)
under section 4(b)(2) of the Act; the petition presents no information
indicating that the rule excluding this property from critical habitat
requires revision or that the methodology used in determining potential
economic impacts was invalid.
References Cited
A complete list of references cited is available on the Internet at
http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0093 and upon
request from the Sacramento Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Author
The primary authors of this notice are the staff members of the
U.S. Fish and
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Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: January 28, 2011.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-2882 Filed 2-9-11; 8:45 am]
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