[Federal Register Volume 77, Number 134 (Thursday, July 12, 2012)]
[Proposed Rules]
[Pages 41147-41162]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16990]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2011-0053: 4500030114]
RIN 1018-AX43
Endangered and Threatened Wildlife and Plants; Designation of
Revised Critical Habitat for the Southwestern Willow Flycatcher
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 August 15, 2011, proposed
designation of revised critical habitat for the southwestern willow
flycatcher (Empidonax traillii extimus) (flycatcher) under the
Endangered Species Act of 1973, as amended (Act). We are reopening the
comment period to allow all interested parties an opportunity to
comment on our amended required determinations and revisions to the
proposed revised designation, which include additional areas as
proposed critical habitat on two streams within the Santa Cruz
Management Unit, Arizona, and revisions to areas being considered for
exclusion under section 4(b)(2) of the Act. We are accepting comments
on the draft environmental assessment prepared in compliance with the
National Environmental Policy Act (NEPA) and the draft economic
analysis associated with the proposed rule. We are also providing
notice of a public informational session and hearing (see DATES and
ADDRESSES). Comments previously submitted need not be resubmitted, as
they will be fully considered in preparation of the final rule.
DATES: Written comments: We will consider comments received on or
before September 10, 2012. Comments submitted electronically using the
Federal eRulemaking Portal (see ADDRESSES section, below) must be
received by 11:59 p.m. Eastern Time on the closing date.
Public informational session and public hearing: We will hold a
public hearing on August 16, 2012, in San Carlos, AZ (see ADDRESSES).
The hearing is open to all who wish to provide formal, oral comments
regarding the proposed rule, and will be held from 6:30 p.m. to 8:00
p.m., with an informational session before the hearing from 3:00 p.m.
to 4:30 p.m. During the informational session, Service employees will
be available to provide information and answer questions.
ADDRESSES: Document availability: You may obtain copies of the proposed
rule, draft economic analysis, and draft environmental assessment on
the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2011-0053 or by mail from the Arizona Ecological Services Office (see
FOR FURTHER INFORMATION CONTACT).
Written comments: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R2-ES-2011-0053, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2011-0053; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. 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).
Public informational session and public hearing: The public
informational session and hearing will be held at Apache Gold
Convention Center, Highway 70, 5 miles East of Globe, in San Carlos, AZ
85550. People needing reasonable accommodations in order to attend and
participate in the public hearing should contact Steve
[[Page 41148]]
Spangle, Field Supervisor, Arizona Ecological Services Office, as soon
as possible (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor,
Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite
103, Phoenix, AZ, 85021; telephone 602-242-0201; facsimile 602-242-
0513. 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 designation of revised
flycatcher critical habitat that was published in the Federal Register
on August 15, 2011 (76 FR 50542). We are accepting comments regarding
additional areas we are proposing as critical habitat in this document
and other areas that we are considering for exclusion under section
4(b)(2) of the Act (16 U.S.C. 1531 et seq.), as discussed in this
document. We are also accepting comments on the amended required
determinations section, the draft economic analysis, and the draft
environmental assessment prepared in compliance with NEPA (42 U.S.C.
4321 et seq.). 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 habitat as
``critical habitat'' under section 4 of the Act, 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 is not prudent.
(2) Specific information on:
(a) The distribution of the flycatcher;
(b) The amount and distribution of flycatcher habitat;
(c) What areas that were occupied at the time of listing that
contain features essential to the conservation of the species should be
included in the designation and why;
(d) What areas not occupied at the time of listing that meet our
criteria as being essential for the conservation of the species should
be included in the designation and why;
(e) Special management considerations or protection that may be
needed for the physical or biological features essential to the
conservation of the species in the critical habitat areas we are
proposing, including managing for the potential effects of climate
change;
(f) Stream segments, many of which are highlighted in the
Southwestern Willow Flycatcher Recovery Plan (Recovery Plan) (Service
2002) and included in this proposed rule, that are not now known to
have flycatcher nesting territories or known to only have few nesting
flycatchers that may be capable of being improved for flycatcher
recovery purposes. We specifically seek information about streams
within the Amargosa, Salton, Mohave, Powell, San Juan, Santa Cruz, and
Hassayampa and Agua Fria Management Units. Please provide information
on flycatcher distribution and abundance, habitat quality, habitat
locations, habitat improvement projects, management actions needed to
improve habitat, habitat quality limitations, habitat recovery
potential, and any other flycatcher or flycatcher-habitat-specific
information, and;
(g) Flycatcher habitat suitability for recovery in areas within the
Santa Ana and San Diego Management Units in southern California,
specifically in the following areas: (1) Entirety of Temescal Wash
including Alberhill Creek in Riverside County; (2) entirety of Murrieta
Creek in Riverside County; (3) Potrero Creek near the city of Beaumont
in Riverside County; (4) Cajon Creek from Lone Pine Canyon to
California State Highway 138 in San Bernardino County; and (5) Tijuana
River from Dairy Mart Road to the Tijuana River Estuary in San Diego
County.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the flycatcher, the features essential to its
conservation, and the areas proposed as revised critical habitat.
(5) Any probable economic, national security, environmental,
cultural, or other relevant impacts of designating any area that may be
included in the final designation; in particular, we seek information
concerning any impacts on small entities, and the benefits of including
or excluding areas that exhibit these impacts.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular:
(a) For specific lands that we should consider for exclusion under
section 4(b)(2) of the Act, please provide us management plans,
conservation easements, agreements, habitat conservation plans (HCPs),
or other appropriate information, which describe the commitment and
assurances of protection of the physical or biological features of
flycatcher critical habitat; property boundaries; flycatcher status,
distribution, and abundance; and management actions to protect the
physical or biological features of flycatcher habitat;
(b) For lands we evaluated and excluded from critical habitat under
section 4(b)(2) of the Act in our 2005 flycatcher critical habitat
designation (70 FR 60886, October 19, 2005) and lands to be newly
considered for exclusion in this revision to designated critical
habitat, please resubmit your request. In addition to your request,
please include any updated information that pertains to the commitment
and assurances of protection of flycatcher habitat; the physical or
biological features of flycatcher critical habitat; property
boundaries; flycatcher status, distribution, and abundance; and
management actions to protect the physical or biological features of
flycatcher habitat. Include the specific results of implementing these
management plans since our 2005 flycatcher critical habitat
designation; and
(c) Information concerning the benefits of excluding or retaining
lands we identify in the proposed critical habitat rule and revisions
herein under consideration for exclusion under section 4(b)(2) of the
Act. We specifically seek information about the possible exclusion of
Elephant Butte Reservoir; areas within the operating pool of the
reservoir may be subject to exclusion under 4(b)(2) of the Act if we
determine that the benefits of excluding the area due to potential
impacts to water operations outweigh the benefits to the subspecies of
including the area as critical habitat.
(7) 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.
(8) Information on the extent to which the description of economic
impacts in the draft environmental analysis is complete and accurate.
(9) The likelihood of adverse social reactions to the designation
of critical
[[Page 41149]]
habitat, as discussed in the draft environmental assessment, and how
the consequences of such reactions, if likely to occur, would relate to
the conservation and regulatory benefits of the proposed revised
critical habitat designation.
(10) Information on the extent to which the description and
evaluation of the proposal included in the draft environmental
assessment is complete and accurate.
If you submitted comments or information on the proposed revised
rule (76 FR 50542) from August 15, 2011, to October 14, 2011, or since
the initial comment period ended, 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 revised critical
habitat will take into consideration all written comments, oral
comments received during the public hearing, and any additional
information we receive during both comment periods and the time between
each comment period.
You may submit your comments and materials concerning the proposed
revised rule, draft economic analysis, or draft environmental
assessment by one of the methods listed in the ADDRESSES section. We
request that you send comments only by the methods described in the
ADDRESSES section.
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, draft economic
analysis, and draft environmental assessment, will be available for
public inspection on http://www.regulations.gov at Docket No. FWS-R2-
ES-2011-0053, or by appointment, during normal business hours, at the
Arizona Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT). You may obtain copies of the proposed rule, draft economic
analysis, and draft environmental assessment on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2011-0053, or by mail from
the Arizona Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of revised critical habitat for the flycatcher in this
document. For more information on previous Federal actions concerning
the flycatcher, refer to the proposed designation of revised critical
habitat published in the Federal Register on August 15, 2011 (76 FR
50542). Background information on the flycatcher can be found in the
2005 final flycatcher critical habitat rule published in the Federal
Register on October 19, 2005 (70 FR 60886); our October 12, 2004,
proposed critical habitat rule (69 FR 60706); the Recovery Plan; our
first flycatcher critical habitat designation, published July 22, 1997
(62 FR 39129), and corrected on August 20, 1997 (62 FR 44228); the
final flycatcher listing rule (60 FR 10694, February 27, 1995); and
other documents described and cited in the August 15, 2011, flycatcher
critical habitat proposal (76 FR 50542). Other reports can be retrieved
from the U.S. Geological Survey's (USGS) flycatcher site at http://sbsc.wr.usgs.gov/cprs/research/projects/swwf. No new literature is
being cited within this document. The current 2005 critical habitat
rule remains in effect while this rulemaking process proceeds. For more
information on this revised flycatcher critical habitat proposal,
please go online to http://www.regulations.gov (at Docket No. FWS-R2-
ES-2011-0053) or http://www.fws.gov/southwest/es/arizona/. All
references cited in the August 15, 2011, flycatcher critical habitat
revision proposal (76 FR 50542) can be retrieved from these Web sites.
You can also contact the Arizona Ecological Services Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
The flycatcher was listed as endangered on February 27, 1995 (60 FR
10694). On July 22, 1997, we published a final critical habitat
designation for the flycatcher along 964 stream kilometers (km) (599
stream miles (mi)) in Arizona, California, and New Mexico (62 FR
39129). We published a correction notice on August 20, 1997, on the
lateral extent of critical habitat (62 FR 44228). As a result of a 1998
lawsuit from the New Mexico Cattlegrower's Association, on October 19,
2005 (70 FR 60886), we published a revised final flycatcher critical
habitat designation for portions of Arizona, California, New Mexico,
Nevada, and Utah, totaling approximately 1,186 km (737 mi). River
segments were designated as critical habitat in 15 of the 32 Management
Units described in the Recovery Plan. We were sued by the Center for
Biological Diversity over our 2005 critical habitat rule, and on July
13, 2010, we agreed to revise critical habitat. The resulting
settlement left the existing critical habitat designation from 2005 in
effect, and required that we deliver a proposed rule for a revised
critical habitat to the Federal Register by July 31, 2011, and a final
rule by July 31, 2012. On March 22, 2012, the settlement agreement was
modified to make the final rule due to the Federal Register by December
14, 2012.
On August 15, 2011, we published a proposed rule to revise critical
habitat for the flycatcher (76 FR 50542). We proposed to designate
approximately 3,364 stream km (2,090 stream mi) of critical habitat,
which includes various stream segments and their associated riparian
areas, not exceeding the 100-year floodplain, on a combination of
Federal, State, tribal, and private lands in California, Arizona, New
Mexico, southern Nevada, Utah, and Colorado. We identified
approximately 1,254 km (779 miles) of river habitat that we were
considering for exclusion under section 4(b)(2) of the Act. That
proposal had a 60-day comment period ending October 14, 2011.
Critical Habitat
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 must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Changes From Previously Proposed Critical Habitat
In this document, we are notifying the public of: (1) two changes
to the proposed revision of flycatcher critical habitat, and (2)
additional and revised areas that we are considering for exclusion from
the final designation of
[[Page 41150]]
critical habitat. We describe below the two newly proposed changes to
the critical habitat designation, and we describe the additional areas
being considered for exclusion in the Consideration of Impacts under
Section 4(b)(2) of the Act section of this document. All other areas
proposed on August 15, 2011, remain proposed for designation as
critical habitat.
After assessing the overall habitat at the Ash Meadows National
Wildlife Refuge in Nevada, we are proposing a reduced area there that
would be designated as critical habitat. On August 15, 2011, we
proposed approximately 5.7 km (3.5 miles) of Carson Slough and 100.1 km
(62.2 miles) of associated unnamed riparian areas as critical habitat
within the Ash Meadows National Wildlife Refuge in the Amargosa
Management Unit (76 FR 50542, p. 50568). Following the proposal, we
collected new information on the available habitat at Ash Meadows and
reevaluated the potential for flycatcher habitat occurrence on the
Refuge. We found five separate locations that are essential for
flycatcher conservation. These proposed locations total about 2.4 km
(1.5 miles) of stream-side riparian habitat, a reduction of about 103.4
km (64.2 mi) from the August 15, 2011, proposed revised critical
habitat in the refuge. Management at these locations will be included
in the overall management and restoration efforts ongoing at Ash
Meadows to recover numerous endemic and listed species. Management of
flycatcher critical habitat will be consistent with and complementary
to management and recovery needs of the endemic species. Landscape-
level improvements at Ash Meadows will continue to restore the natural
hydrology, topography, and vegetation communities and provide suitable
flycatcher habitat, most likely in the form of Goodding's willow (Salix
gooddingii) and leather-leaf ash (Fraxinus velutina). Both tree species
are known to be used by flycatchers during migration and sometimes for
nesting. The current areas proposed for critical habitat are expected
to provide long-term native plant species communities that will support
flycatcher habitat.
We also propose to designate one additional area that occurs in the
Santa Cruz Management Unit, Pima County, Arizona, within the Gila
Recovery Unit. This change would lengthen, both upstream and
downstream, the segment of Cienega Creek that is proposed for
designation as revised critical habitat. We are also proposing to
designate as critical habitat two short segments of Empire Gulch, a
tributary to the headwaters of Cienega Creek. The new segments of
Cienega Creek and Empire Gulch identified in this document constitute
an addition of 10.9 km to the areas we proposed for flycatcher critical
habitat and the description below supplements the description of the
Santa Cruz Management Unit in the August 15, 2011, proposal (76 FR
50542, p. 50574). No change is being identified for the proposed
segment of the Santa Cruz River, also included within this Management
Unit.
Proposed Critical Habitat Designation
Based on the changes to the proposed critical habitat area
discussed below, Table 1 provides an updated accounting of the total
areas we are proposing as revised critical habitat. This information
revises Table 2 of the August 15, 2011 proposal (76 FR 50542, pp.
50561-50562). These data also reflect minor corrections in the
accounting and mapping of some proposed segments, and present total
areas (in hectares and acres) in addition to stream lengths reported in
the proposed rule. We are currently proposing a total of 3,400 stream
km (2,113 stream mi) encompassing 215,551 hectares (ha) (532,636 acres
(ac)). This is a net increase of approximately 36 stream km (23 stream
mi) from our August 15, 2011, proposal (76 FR 50542).
Table 1--Revision to Table 2 in the August 15, 2011, Proposed Rule (76 FR 50542, pp. 50561-50562). Land
Ownership, by State, of Proposed Critical Habitat Areas for Southwestern Willow Flycatcher, Listed as
Approximate Stream Lengths in km (mi); and Approximate Area in ha (ac)
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Other/
State Federal State Tribal Private unclassified
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AZ................ 465 (289); 42,126 52 (33); 4,530 87 (54); 14,257 378 (235); 21,549 0 (0); 417
(104,096). (11,195). (35,231). (53,249). (1,031).
CA................ 288 (179); 13,070 14 (9); 428 24 (15); 7,062 0.3 (0.2); 361 656 (408);
(32,296). (1,058). (17,449). (893). 27,818
(68,740).
CA/AZ............. 165 (103); 0 (0). 12 (8); 0 (0).... 79 (49); 0 (0)... 43 (27); 0 (0)... 20 (12); 0 (0).
CO................ 33 (21); 3,546 0.2 (0.1); 26 26 (16); 1,064 207 (128); 29,221 9 (6); 575
(8,762). (64). (2,629). (72,206). (1,421).
NV................ 42 (26); 2,330 14 (8); 1,061 0 (0); 2 (6)..... 21 (13); 1,496 0 (0); 1 (2).
(5,757). (2,622). (3,696).
NM................ 127 (79); 6,457 64 (40); 10,512 122 (76); 5,036 330 (205); 17,719 0 (0); 0 (0).
(15,957). (25,975). (12,445). (43,785).
UT................ 41 (26); 1,564 0 (0); 32 (80)... 41 (26); 2,063 36 (22); 1,226 0 (0); 0 (0).
(3,864). (5,098). (3,030).
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Total......... 1,161 (722); 157 (98); 16,590 380 (236); 29,484 1,015 (631); 685 (426);
69,093 (170,731). (40,995). (72,857). 71,572 (176,859). 28,811
(71,573).
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Notes: Totals do not sum because some stream segments have
different ownership on each side of the bank resulting in those
segments being counted twice. CA/AZ includes the stream segments
along the Colorado River where California is on one stream bank and
Arizona is on the other. Other/Unclassified includes some local
government ownership and unclassified segments (where land ownership
was not available).
Basin and Mohave Recovery Unit
Amargosa Management Unit, CA and NV
Updated information and further evaluation led us to modify the
areas we are proposing as critical habitat on the Ash Meadows National
Wildlife Refuge (see Changes from Previously Proposed Critical
Habitat). These new areas replace the areas (Carson Slough and the
unnamed riparian areas) that were identified in the proposed rule (76
FR 50542, p. 50568). We are proposing as critical habitat five areas on
the Ash Meadows National Wildlife Refuge in Nye County, Nevada: Soda
Spring segment (0.5 km, 0.3 miles; 1.2 ha, 3.0 ac); Lower Fairbanks
segment (0.8 km, 0.5 mi; 2.3 ha, 5.8 ac); Crystal Reservoir segment
(0.5 km, 0.3 mi; 11.7 ha, 28.9
[[Page 41151]]
ac); North Tubbs segment (0.2 km, 0.1 mi; 0.3 ha, 0.7 ac); and South
Tubbs segment (0.4 km, 0.2 mi; 0.8 ha, 1.9 ac). These areas were not
known to be occupied at the time of listing. These segments, together
with the other segments in the Amargosa Management Unit (stream
segments of the Amargosa River (12.3 km, 7.7 mi) and Willow Creek (3.5
km, 2.2 mi) in Inyo and San Bernardino Counties, California), are
essential for flycatcher conservation because they are anticipated to
provide habitat for metapopulation stability, gene connectivity through
this portion of the flycatcher's range, protection against catastrophic
population loss, and population growth and colonization potential. As a
result, these river segments and associated flycatcher habitat are
anticipated to support the strategy, rationale, and science of
flycatcher conservation in order to meet territory and habitat-related
recovery goals.
Gila Recovery Unit
Santa Cruz Management Unit, AZ
We received clarifying information that the proposed critical
habitat segment on Cienega Creek did not include the location of a
previously known flycatcher breeding territory as well as other recent
flycatcher detections and habitat information. We also received new
information about a breeding flycatcher and quality habitat along
Empire Gulch (a tributary to the headwaters of Cienega Creek) from 2011
flycatcher surveys. Because of the limited information we have for
flycatchers in the Santa Cruz Management Unit, these were important
observations. As a result, this revision to proposed critical habitat
extends the length of proposed flycatcher critical habitat on Cienega
Creek, both upstream and downstream of the segment we identified on
August 15, 2011 (76 FR 50542, p. 50574), and adds two short segments of
Empire Gulch to the proposed revised critical habitat designation.
The new proposed Cienega Creek segment occurs within the boundary
of the Bureau of Land Management's Las Cienegas National Conservation
Area. We are extending the flycatcher critical habitat that we are
proposing for Cienega Creek upstream and downstream from the original
7.0-km (4.4-mi) segment we proposed on August 15, 2011 (76 FR 50542, p.
50574), to a new 17.9-km (11.1-mi) segment. This new area includes the
location of a previously detected flycatcher territory area, locations
used by migratory flycatchers, and areas that may develop into future
breeding habitat.
We were also provided new information during the comment period
about a breeding flycatcher detected on Empire Gulch (a tributary to
the headwaters of Cienega Creek) and habitat that may support breeding
and migrating flycatchers. As a result, we are proposing to designate
as critical habitat one isolated 0.4-km (0.3-mi) upper segment of
Empire Gulch and a second 1.3-km (0.8-mi) lower segment of Empire Gulch
that connects to Cienega Creek. Both of these segments are within the
Las Cienegas National Conservation Area.
Neither of these newly proposed segments on Cienega Creek nor those
on Empire Gulch were known to be occupied at the time of listing;
however, they are believed to be essential for flycatcher conservation
because of their ability to develop and sustain flycatcher habitat and
territories to help meet recovery goals in this Management Unit. As
noted earlier in this document (see Public Comments), we are
specifically seeking information about flycatchers and stream segments
within the Santa Cruz Management Unit. Both the Santa Cruz River and
Cienega Creek segments were identified in the Recovery Plan as areas
with substantial recovery value. The addition of the short segments of
Empire Gulch is based upon flycatcher detections in 2011, and the fact
that they are immediately adjacent to areas identified in the Recovery
Plan. These segments are anticipated to provide flycatcher habitat for
metapopulation stability, gene connectivity through this portion of the
flycatcher's range, protection against catastrophic population loss,
and population growth and colonization potential. As a result, these
stream segments and associated flycatcher habitat are anticipated to
support the strategy, rationale, and science of flycatcher conservation
in order to meet territory and habitat-related recovery goals.
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 identifying 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 that provides
equal or more conservation than a critical habitat designation would
provide; avoid disproportionate economic impacts resulting from the
designation of critical habitat; or avoid potential conflicts with
national security issues or other environmental issues. In the case of
the flycatcher, the benefits of critical habitat include public
awareness of the presence of flycatchers and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for flycatchers due to protection from adverse modification
or destruction of critical habitat. In practice, situations with a
Federal nexus exist primarily on Federal lands or for projects carried
out, authorized, or funded by Federal agencies.
Additional Sites Considered for Exclusion From Final Designation of
Critical Habitat
We have not proposed to exclude any areas from critical habitat
under section 4(b)(2) of the Act, but we did identify a number of areas
we are considering for exclusion from the final revised critical
habitat designation. We are now considering excluding an additional
211.0 km (131.1 mi) of proposed critical habitat, bringing the overall
total of areas considered for exclusions, after revisions to one other
unit, to 1,451.5 km (901.9 mi) encompassing approximately 135,587 ha
(335,043 ac). We have included a list in Table 2 and descriptions of
the additional areas we are considering for exclusion beyond those
already identified in the August 15, 2011, proposed rule (76 FR 50542,
pp. 50581-50594). The additional areas are being considered for
exclusion based on other relevant impacts, and the list below is
organized by Recovery Unit and Management Unit. The final
[[Page 41152]]
decision on whether to exclude any areas will be based on the best
commercial and 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 and draft environmental
assessment concerning the proposed critical habitat designation, which
is available for review and comment (see ADDRESSES).
The following areas, listed in Table 2 and described below, are
being considered for exclusion from our final critical habitat
designation, amending those areas described in the August 15, 2011,
proposed rule (76 FR 50542, pp. 50581-50594).
Table 2--Amendment to Table 4 in the August 15, 2011, Proposed Rule (76 FR 50542, pp. 50582-50584).
Plan Type, Stream Segments, and Approximate Stream Length Being Considered for Exclusion From Flycatcher
Critical Habitat Under Section 4(b)(2) of the Act by Management Unit
[Total represent all exclusions from August 15, 2011, proposed rule and the additional and revised areas listed
here.]
----------------------------------------------------------------------------------------------------------------
Streams segments Approximate stream length considered for
Basis for possible exclusion considered for exclusion exclusion in km (mi)
----------------------------------------------------------------------------------------------------------------
Santa Clara Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
Newhall Land and Farm Conservation Santa Clara River......... 18.5 km (11.5 mi).
Easement and Management Plan.
Castaic Creek............. 4.8 km (3.0 mi).
----------------------------------------------------------------------------------------------------------------
Bill Williams Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
Lower Colorado River Multi-Species Bill Williams River NWR*-- 16.6 km (10.3 mi).
Conservation Plan (LCR MSCP). Bill Williams River.
----------------------------------------------------------------------------------------------------------------
Hoover to Parker Dam Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
LCR MSCP............................... Havasu NWR--Colorado River 35.2 km (21.9 mi).
----------------------------------------------------------------------------------------------------------------
Parker Dam to Southerly International Border Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
LCR MSCP............................... Colorado River (Cibola 17.9 km (11.1 mi).
NWR).
Colorado River (Imperial 38.1 km (23.7 mi).
NWR).
----------------------------------------------------------------------------------------------------------------
Roosevelt Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
Pinal Creek Group/Freeport McMoRan Pinal Creek............... 5.7 km (3.5 mi).
Management Plan.
----------------------------------------------------------------------------------------------------------------
Lower Rio Grande Management Unit (additional areas)
----------------------------------------------------------------------------------------------------------------
Rio Grande Canalization Project........ Rio Grande................ 74.2 km (46.1 mi).
----------------------------------------------------------------------------------------------------------------
Subtotal of additional stream length being considered for exclusion 211.0 km (131.1 mi).
(this table)
----------------------------------------------------------------------------------------------------------------
San Luis Valley Management Unit (revised areas)
----------------------------------------------------------------------------------------------------------------
San Luis Valley Partnership and Rio Grande................ 141.0 km (87.6 mi).
Regional Habitat Conservation Plan.
Conejos River............. 69.8 km (43.4 mi).
----------------------------------------------------------------------------------------------------------------
Total stream length being considered for exclusion (including 1,451.5 km (901.9 mi).
stream lengths from all areas identified in proposal)
----------------------------------------------------------------------------------------------------------------
* NWR--National Wildlife Refuge.
Coastal California Recovery Unit: Santa Clara Management Unit,
California
Conservation Easement and Management Plan: Newhall Land and Farming
Company
Newhall Land and Farming Company (Newhall) controls land holdings
and interests along a portion of the Santa Clara River (18.5 km, 11.5
mi) and Castaic Creek (4.8 km, 3.0 mi) confluence proposed as
flycatcher critical habitat in Ventura County, California. Newhall has
existing and proposed conservation easements for these lands. Some of
the effects of nearby commercial and industrial development have been
reduced and minimized by implementing conservation measures established
through planning documents and section 7 biological opinions issued by
the Service. Of the 655 ha (1,619 ac) of Newhall land within the
proposed flycatcher critical habitat designation, 119 ha (293 ac) are
currently within an existing or pending conservation easement, while
the remaining acreage occurs within future or pending conservation
easements. We will evaluate the conservation easements, management
actions, commitments, and assurances associated with these lands for
potential exclusion from the final revised designation of flycatcher
critical habitat under section 4(b)(2) of the Act.
Lower Colorado Recovery Unit: Bill Williams, Hoover to Parker Dam, and
Parker Dam to Southerly International Border Management Units, Arizona
and California
Lower Colorado River Multi-Species Conservation Plan (LCR MSCP),
National Wildlife Refuges
[[Page 41153]]
In the August 15, 2011, proposed rule (76 FR 50542, p. 50590), we
described the reasons for considering excluding the areas within the
LCR MSCP. The flycatcher is a key species in the LCR MSCP, where the
permittees will create and maintain 1,639 ha (4,050 ac) of flycatcher
habitat over the 50-year life of the permit and habitat conservation
plan (2005 to 2055). Additional research, management, monitoring, and
protection of flycatchers and flycatcher habitat from fire, nest
predators, and brood parasites will occur. In our description of this
plan, we explained how the LCR MSCP works in conjunction with the four
National Wildlife Refuges (Bill Williams, Havasu, Cibola, and Imperial)
along this stretch of the Colorado River for management of flycatcher
habitat. We intended to include these National Wildlife Refuges as part
of the areas being considered for exclusion from the final critical
habitat designation because of the management and protections provided
by the LCR MSCP. However, we inadvertently omitted these areas from the
areas calculated in Table 4 of the proposed rule (76 FR 50542, August
15, 2011, p. 50583). We are now providing notice that the areas being
considered for exclusion within the LCR MSCP do include the National
Wildlife Refuges as listed above in Table 2. The refuges occur within
the Bill Williams Management Unit, Arizona; the Hoover to Parker Dam
Management Unit, Arizona and California; and the Parker Dam to
Southerly International Border Management Unit, Arizona and California.
Gila Recovery Unit: Roosevelt Management Unit, Arizona
Management Plan and Partnership: Pinal Creek Group and Freeport-McMoRan
Remedial Action Program and Flycatcher Management Plan
The Pinal Creek Group, represented by Freeport McMoRan, is actively
implementing the Water Quality Assurance Revolving Fund Remedial Action
Program required by the Arizona Department of Environmental Quality
Consent Order issued in April 1998 along lower Pinal Creek in Gila
County, Arizona. These actions occur throughout the proposed 5.7 km
(3.5 mi) of proposed flycatcher critical habitat. The primary purpose
of this Remedial Action Program is the monitoring, extraction, and
treatment of contaminated Pinal Creek groundwater. Implementation of
these remedial projects has resulted in improved abundance,
distribution, and quality of riparian habitat for flycatchers.
The extraction, treatment, and discharge of Pinal Creek groundwater
onto the surface of the Pinal Creek bed and associated land management
actions have been the primary actions that have helped establish and
maintain increased abundance of riparian vegetation. The goal of the
habitat mitigation and monitoring plan associated with the Remedial
Action Program is the maintenance and long-term restoration of riparian
habitat, dominated by native tree species. In addition to a more
constant surface water and elevated groundwater table available to grow
riparian plants, cattle grazing pressure on vegetation has been limited
within the Pinal Creek area through fencing and modification of
previous grazing strategies. Cattle grazing is now eliminated during
the growing season (April through October). Also, nonnative plant
management has reduced the occurrence of flammable plants and the
potential impacts of wildfire. Much of these lands are also fenced
properties that limit both public access and actions that could impact
vegetation. From 1999 to 2007, these actions resulted in a 130 percent
increase in total riparian vegetation volume within the 117-ha (290-ac)
mitigation area. We will coordinate with the Pinal Creek Group and
Freeport-McMoRan and examine what flycatcher conservation actions,
management plans, and commitments and assurances occur on these lands
to consider Pinal Creek for exclusion from the final revised
designation of flycatcher critical habitat under section 4(b)(2) of the
Act.
Rio Grande Recovery Unit: San Luis Valley Management Unit, Colorado
San Luis Valley Partnership and San Luis Valley Regional Habitat
Conservation Plan
In the August 15, 2011, proposed rule (76 FR 50542, p. 50593), we
described the reasons for considering excluding non-federal lands
within the San Luis Valley Partnership. However, the total stream miles
(159.4 km (99.0 mi)) listed in the proposed rule as being considered
for exclusion in the San Luis Valley mistakenly included Federal lands
along the Rio Grande. We are not considering excluding those Federal
lands (18.4 km (11.4 mi)) on the Alamosa National Wildlife Refuge along
the Rio Grande. So only non-Federal lands totaling 141.0 km (87.6 mi)
along the Rio Grande and 69.8 km (43.4 mi) along the Conejos River are
being considered for exclusion in the San Luis Valley Management Unit.
As one element of the private land conservation efforts, a
collection of San Luis Valley, Colorado, towns, cities, counties,
Federal agencies, and the State of Colorado are developing an HCP for
the San Luis Valley. Public review and completion of the HCP is
anticipated to overlap the rulemaking timeframe for this flycatcher
critical habitat revision. The HCP as proposed would cover nearly 1.2
million ha (3 million ac) and 400 km (250 mi) of riparian habitat that
could be used by the flycatcher and other riparian and aquatic-based
species. The acreage covered by the regional HCP encompasses the entire
Colorado portion of the San Luis Valley Management Unit, as described
in the Recovery Plan, and extends well beyond the two stream segments
along the Rio Grande and Conejos Rivers proposed as flycatcher critical
habitat.
The San Luis Valley Regional HCP, if finalized before the
completion of the final rule, could be the support for an exclusion
under section 4(b)(2) of the Act. We are considering excluding the
proposed segments of the Rio Grande and Conejos River in the San Luis
Valley Management Unit (excluding the Alamosa NWR) from the final
designation of revised flycatcher critical habitat.
Lower Rio Grande Management Unit, New Mexico
Management Plan and Partnership: Rio Grande Canalization Project
The Elephant Butte Irrigation District (EBID), El Paso County Water
Improvement District No. 1 (EP1), and United States Section of
the International Boundary and Water Commission (IBWC) are planning
restoration of riparian habitat along the Rio Grande in New Mexico from
Percha Dam to American Dam, a portion of which, from Caballo Dam to Ft.
Selden, has been proposed as critical habitat. The EBID and
EP1 manage the water from the Rio Grande in Elephant Butte
Reservoir for beneficial use (including use for agricultural and
municipal needs), and the IBWC is responsible for maintaining levees
and channel and floodway management along this section of the lower Rio
Grande (termed the Rio Grande Canalization Project). EBID,
EP1, the Audubon Society, and IBWC are establishing an
agreement for a water transaction program that would provide water in
the Rio Grande to a number of riparian sites for which IBWC has
committed restoration plans. Through restoration plan and other
commitments documented in a 2011 biological assessment, this
partnership will conduct a variety of flycatcher and flycatcher habitat
management actions in this area.
[[Page 41154]]
The restoration plan includes up to 30 riparian restoration sites,
of which about 8 are specifically designed to create flycatcher habitat
on at least 21 ha (53 ac) and as many as 42 ha (105 ac), and to include
management of saltcedar that is intermixed with cottonwood, willow,
mesquite, and arrowweed to maximize potential value for nesting or
migratory flycatchers. These sites are to be restored by 2019. The
restoration plan also calls for discontinuing mowing willows along the
river for the benefit of flycatchers and planting willows in other
areas where hydrological conditions are favorable. Restoration efforts
will also physically reconnect old river channels and lower incised
banks to the main river channel where appropriate. These efforts should
result in additional flycatcher habitat beyond the minimum restoration
sites. The restoration plan has established collaborative relationships
between the EBID, EP1, IBWC, Audubon Society, and Service to
benefit the flycatcher, including monitoring for flycatcher presence
and habitat condition throughout the reach. Because of the commitment
to a comprehensive flycatcher management plan, development and
agreements on the water transaction program and overall restoration
plan, we will consider excluding the Lower Rio Grande segment from the
final designation of revised flycatcher critical habitat under section
4(b)(2) of the Act.
Effects of Critical Habitat Designation
Draft Economic Analysis
The purpose of the draft economic analysis is to identify and
analyze the potential economic impacts associated with the proposed
flycatcher critical habitat revision. The draft economic analysis
describes the economic impacts of all potential conservation efforts
for the flycatcher; some of these costs will likely be incurred
regardless of whether 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 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. For a further
description of the methodology of the analysis, see Chapter 2,
``Framework for the Analysis,'' of the draft economic analysis.
The draft economic analysis provides estimated costs of the
foreseeable potential economic impacts of the proposed critical habitat
designation for the flycatcher over the next 20 years (2012-2031)
which, for most parts of the analysis, was determined to be the
appropriate period for analysis. This is because limited planning
information is available for most activities to forecast activity
levels for projects beyond a 20-year timeframe. The draft economic
analysis estimates impacts to water management activities, however,
over a 30-year period (2012-2041).
The draft economic analysis estimates economic impacts of
flycatcher conservation efforts associated with the following
categories of economic activity: (1) Water management activities; (2)
livestock grazing; (3) residential and related development; (4) tribal
activities; (5) transportation; (6) mining and oil and gas development;
and (7) recreation activities. The total potential incremental economic
impacts for all of the categories in areas proposed as revised critical
habitat over the next 20 years range from $11 million to $19 million
($940,000 to $1.7 million annualized), assuming a 7 percent discount
rate. A very brief summary of the estimated impacts within each
category is provided below. Please refer to the draft economic analysis
for a comprehensive discussion of the potential impacts.
Transportation
Our analysis suggests that transportation activities, such as road
and bridge construction and maintenance, may experience the largest
impacts. Transportation projects were more difficult to forecast,
resulting in potential overstatement of the impacts. Our impact
estimates were based on an increased level of consultation activity
(and resulting project modifications for flycatcher conservation
efforts) that is higher than the historical record of past activities.
Transportation agencies at the Federal, State, and local level could
incur costs associated with monitoring and education activities,
fencing, habitat restoration and creation, timing restrictions, and
administrative activities. Incremental impacts may reach $5.8 million
over 20 years.
Water Management
Impacts to water management activities may be the next largest of
any of the affected economic activities; however, the majority of the
impact of conservation efforts to protect flycatcher will occur even if
critical habitat is not designated (they are baseline impacts). All but
two of the major dams and reservoirs within flycatcher proposed revised
critical habitat, the Hansen Dam and the Mohave Dam, are located along
river segments where the species' presence is either currently
addressed, or otherwise well known to project proponents and managing
agencies. Associated impacts in these areas are therefore assumed to be
baseline, where most conservation activities and associated costs will
occur regardless of whether critical habitat is designated. An
exception is Luna Lake in the San Francisco Management Unit; although
flycatcher territories have been detected in the area, Luna Lake does
not have existing management plans for the flycatcher, and species
occupancy may not be well known. Therefore, we assume that forecasted
water management activity costs there are incremental.
Incremental impacts over the next 30 years (assuming a 7 percent
discount rate) range from $1.4 million to $9.6 million. These
incremental impacts include the costs of conservation efforts
associated with section 7 consultations or the development of HCPs, as
well as administrative efforts to consider potential adverse
modification of habitat as part of future section 7 consultations.
Livestock Grazing
Impacts to grazing activities are likely to be smaller relative to
water and transportation activities, but are anticipated to affect a
broader geographic area. Grazing currently occurs in 27 of the 29
Management Units that include proposed revised critical habitat. As a
result, some impacts may be experienced in most units. On Federal
lands, reductions in grazing allotments are possible depending on the
specific conditions
[[Page 41155]]
within the unit. The estimated potential, present value incremental
costs range from $2.2 million to $3.5 million over the 20-year time
period of the analysis. Impacts include the administrative costs of
consultation with the Service, the lost value of grazing permits
associated with reductions in authorized Animal Unit-Months, costs of
constructing and maintaining fencing, and costs of cowbird trapping.
Residential and Commercial Development
Residential and related development activities are likely to be
smaller in magnitude than grazing impacts; however estimated impacts
are concentrated over a smaller geographic area. Nearly all impacts to
development activities are estimated to occur in the California
Management Units. Areas likely to see the greatest development pressure
include Santa Barbara, Ventura, Los Angeles, Riverside, San Bernardino,
and San Diego Counties, California, and Mohave County, Arizona.
Because the proposed revised critical habitat is located within the
100-year floodplain, the Federal Emergency Management Agency will
regulate real estate development in any critical habitat we eventually
designate. As a result, additional restrictions may be imposed by
individual or local jurisdictions. The restrictions or regulations may
require flood control facilities or other special engineering, often
making development in floodways impractical and prohibitively
expensive. Due to existing development restrictions, lands within
proposed critical habitat that can be feasibly developed would be
limited to areas where real estate demand is high enough to justify the
costs associated with developing the floodplain.
Incremental impacts to residential development are estimated at
$810,000 over 20 years. These are related to reduced land value
associated with the need to set aside land on-site for the flycatcher;
the need to implement additional project modifications, such as cowbird
trapping, fencing, monitoring, and habitat management; time delays; and
administrative costs. Because of the availability of alternative lands
that would not be designated as critical habitat in these regions,
these costs are likely to be borne by existing landowners in the form
of reduced value for their existing properties. The estimated impacts
would be felt immediately, in 2012, upon promulgation of the final
rule, and reflect the change in the future, productive use of the
properties.
Tribal Activities
Incremental impacts to tribal activities of approximately $660,000
are estimated to be associated with administrative impacts over the 20-
year time frame of the analysis. However, tribal concerns focus on the
potential impact that the designation could have on their ability to
make use of natural resources, including water rights, on their
sovereign lands. The absence of some cost information related to
potential impacts of flycatcher critical habitat on tribal lands
results in a probable underestimate of future costs to tribal entities.
Lands belonging to 20 Tribes included within the boundaries of proposed
revised critical habitat are under consideration for exclusion from the
final designation.
Mining, and Oil and Gas Development
In 2005, potential impacts to oil and gas development were not
identified as a significant issue and thus were not considered in the
previous economic analysis. However, proposed revised critical habitat
in the San Juan Management Unit in San Juan County, Utah, and La Plata
County, Colorado, generated concern, because this area serves as a
highly-developed source of oil and natural gas, with hundreds of
existing wells. Due to the level of existing protections in riparian
areas required by, or agreed to by, oil and gas developers and land and
resource managers, no project modification costs are expected as a
result of the designation of revised flycatcher critical habitat.
However, baseline administrative costs of $33,000 for one formal and
six informal consultations are expected due to limited oil and gas
activities, including seismic studies and pipeline construction and
maintenance. In addition to baseline costs, the analysis forecasts
$11,000 in incremental administrative costs to consider adverse
modification as part of these consultations.
While few active mineral mining activities occur within the
proposed revised critical habitat, the mining industry has expressed
concern that water use by existing or potential mining operations could
be affected by flycatcher conservation activities, particularly the
designation of critical habitat. There are currently no data that
indicate whether existing or future diversions of water for mining
activities (including groundwater pumping) reduce stream flow or modify
hydrologic conditions to the degree that adversely impacts the
flycatcher and its riparian habitat. As such, the analysis does not
quantify the probability or extent to which water use for mining
purposes would need to be curtailed or modified to remedy impacts to
flycatcher. Additionally, impacts to extractive mining operations, such
as sand and gravel pits, that cause direct habitat loss may occur as
the result of critical habitat designation. However, project
modification costs associated with these operations are uncertain due
to the limited consultation history, and, as a result, our analysis is
unable to forecast economic impacts for mining activities.
Recreation
Incremental impacts to recreational activities are unlikely to
result from the designation. In the baseline, activities may be
affected at Lake Isabella and Lake Roosevelt; however, baseline
economic impacts in these areas are likely to be limited to $1.9
million over 20 years. In addition, management activities at a picnic
site in the San Bernardino National Forest results in present value
baseline costs of $40,100.
Draft Environmental Assessment
The purpose of the draft environmental assessment, prepared
pursuant to the NEPA, is to identify and disclose the environmental
consequences resulting from the proposed action of designating revised
critical habitat for the flycatcher (please see further NEPA discussion
below). In the draft environmental assessment, three alternatives are
evaluated: Alternative A, the proposed rule with exclusion areas;
Alternative B, proposed rule without exclusion areas; and the no action
alternative that would leave the 2005 designated critical habitat in
place. Under Alternative A, stream segments identified as being
considered for exclusion could potentially be excluded in the final
rule based on economic impact, national security, or other relevant
impacts. The no action alternative is required by NEPA for comparison
to the other alternatives analyzed in the draft environmental
assessment. See ADDRESSES for information on how to obtain a copy of
the draft environmental assessment.
As we stated earlier, we are soliciting data and comments from the
public on the draft economic analysis and 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
critical habitat if we determine that the benefits of excluding the
area outweigh
[[Page 41156]]
the benefits of including the area, provided the exclusion will not
result in the extinction of this species.
Required Determinations--Amended
In our August 15, 2011, proposed rule (76 FR 50542, pp. 50594-
50596), 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 draft economic analysis. We have now made use of the draft
economic analysis data to make these determinations. In this document,
we affirm the information in our August 15, 2011, proposed rule
concerning E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform),
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 draft economic analysis data, we are amending our required
determination concerning the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). We are also updating our determinations concerning E.O. 12630
(Takings), E.O. 13211 (Energy, Supply, Distribution, and Use), and the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 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.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. Based on our draft economic analysis 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.
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 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 flycatcher would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities, such as (1) transportation; (2) water
management; (3) livestock grazing; and (4) residential and commercial
development. Other activities analyzed in the economic analysis, in
particular, impacts to mining and recreation, found no incremental
impacts and so were not further analyzed for effects on small entities.
In order to determine whether it is appropriate for our agency to
certify that this proposed 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 directly 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 flycatcher is 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 the proposed revised critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In the draft economic analysis, we evaluated the potential economic
effects on small entities resulting from implementation of conservation
actions related to the proposed revised designation of critical habitat
for the flycatcher. Please refer to Appendix A in the draft economic
analysis of the proposed critical habitat designation for a more
detailed discussion of potential economic impacts. Our analysis of the
five industries with possible incremental impacts on small business was
based on the proportion of small entities affected within each industry
and the annualized costs per entity as a percent of annual revenues.
The following summary highlights the results of our analysis:
(1) For water management, we estimated that 1 small entity could be
affected, representing 0.07 percent of the 1,350 small entities in the
study area. The annualized effects represent 0.01 to 0.08 percent of
the annual revenues of that one entity.
(2) For livestock grazing and residential and commercial
development, the analysis distinguishes between entities expected to
bear project modification costs with administrative costs and those
expected to bear only administrative costs because the expected
magnitude of impacts differs significantly across the two groups. We
estimated three small grazing entities could be affected by both
project modification and administrative costs, representing 0.49
percent of the 517 small entities in the study area. The annualized
impacts per small entity in this group are expected to range from 0.24
percent to 0.43 percent of annual revenues. A further 29 small grazing
entities may incur some minor administrative costs associated with
informal consultations and technical assistance efforts, representing
approximately 5.6 percent of small grazing entities across the study
area. Annualized impacts per small entity for this group of 29 are
estimated at 0.12 percent of annual revenues.
(3) We estimated 1 small entity in the residential and commercial
development industry could be affected by land value loss and
administrative costs, representing less than 0.01 percent of the 76,516
small entities in the study area. The annualized effects represent 5.72
percent of the annual revenues of that entity. We estimated 6
[[Page 41157]]
small residential and commercial development entities could experience
administrative costs only, representing less than 0.01 percent of the
small entities in the study area. The annualized effects per small
entity for this group represent 0.05 percent of annual revenues.
(4) For transportation, we forecast some administrative costs
associated with roads that may be managed by county or city
governments. Using GIS data to identify where roads cross the proposed
revised critical habitat designation, the analysis forecasts informal
and technical assistance efforts in 4 counties out of the 49 counties
in the study area. Of these counties, 3 counties, or 75 percent, have
populations falling below 50,000 and therefore are considered small.
Third-party administrative costs for these three counties represent
between 0 and 0.06 percent of the respective county's annual revenues.
(5) For oil and gas development, we estimated 7 small entities
could be affected, representing 2.3 percent of the 300 small entities
in the study area. The annualized effects per small entity represent
less than 0.01 percent of annual revenues.
None of the impacts rises to a level of a significant economic
impact on a substantial number of small entities. We did estimate a
substantial number of small livestock grazing entities (5.6 percent)
could be impacted due to potential additional administrative costs.
However, the impacts are not significant because they represent only
0.12 percent of the estimated annual revenues of those small entities.
Alternately, we estimated an economic impact of 5.72 percent of annual
revenues for one small entity in the residential development industry
based on forecasted land value loss and administrative costs. However,
this entity represents a very small percentage of small entities (less
than 0.01 percent) in the development industry that will be affected.
So although there is one industry (livestock grazing) with a
substantial number of entities affected, and one industry (residential
development) that has a small entity with potentially substantial
impacts, there are no industries with significant economic impacts on a
substantial number of small entities.
In summary, we have considered whether the proposed designation of
revised critical habitat for the flycatcher 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. We have estimated the
number of small entities that may be impacted in each industry affected
by the proposed critical habitat designation. For the above reasons and
based on currently available information, we certify that, if
promulgated, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) will review all significant
rules. The OIRA has determined that this rule is not significant. E.O.
13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Takings--Executive Order 12630
In this document, we affirm the information in our proposed rule
concerning E.O. 12630 (Takings), having reviewed the preliminary
assessment and the draft economic assessment, and prepared a Takings
Implication Assessment. Although there may be some costs likely to be
borne by existing landowners in the form of reduced value for their
existing properties, these impacts are not expected to be significant,
and therefore will not result in a significant takings implication.
Energy, Supply, Distribution, and Use-- Executive Order 13211
We stated in our August 15, 2011, proposed rule that the proposed
revised designation is not expected to significantly affect energy
supplies, distribution, or use because there are no pipelines,
distribution facilities, power grid stations, etc. within the
boundaries of proposed revised critical habitat. However, the San Juan
Management Unit in San Juan County, Utah, and La Plata County, Colorado
is expected to sustain limited oil and gas activities, including
seismic studies and pipeline construction and maintenance. Our draft
economic analysis reflects that we do not expect these activities to
incur any project modification costs, but the analysis does estimate
that over the next 20 years, there will be about $11,000 in incremental
administrative costs to consider adverse modification as part of
consultations on these activities. We do not consider these costs to be
significant. Therefore, we affirm that this action is not a significant
energy action and no Statement of Energy Effects is required.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
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 pursuant to NEPA 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, because
the range of the flycatcher includes States within the Tenth Circuit
and 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 have undertaken a NEPA analysis and drafted an
environmental assessment for the proposed critical habitat designation.
We have completed a draft environmental assessment, and it is now
available for public review and comment (see ADDRESSES). The draft
environmental assessment found that the designation of critical habitat
for the southwestern willow flycatcher would not have direct impacts on
the environment; designation is not expected to impose land use
restrictions or prohibit land use activities. However, the designation
of critical habitat could: (1) Increase the number of additional
section 7 consultations for proposed projects within designated
critical habitat; (2) increase the number of reinitiated section 7
consultations for ongoing projects within designated critical habitat;
(3) maintain the southwestern willow flycatcher's primary constituent
elements; (4) increase the likelihood of greater expenditures of time
and Federal funds
[[Page 41158]]
to develop measures to prevent both adverse effects to the species and
adverse modification to critical habitat; and (5) indirectly increase
the likelihood of greater expenditure of non-Federal funds by project
proponents to complete section 7 consultations and to develop
reasonable and prudent alternatives (to avoid adverse modification of
critical habitat by Federal agencies) that maintain critical habitat.
Such an increase might occur where there is a Federal nexus to actions
within areas with no known flycatcher territories, or from the addition
of adverse modification analyses to jeopardy consultations in known
flycatcher habitat.
Based on comments we received in preparing the previous critical
habitat designation in 2005, internal scoping within the Service, a
review of the previous consultation history of the species, and a
review of public comments we received on the August 15, 2011, proposed
rule, the Service analyzed the potential impacts of critical habitat
designation on the following resources and resource management types:
land use and management; fish, wildlife, and plants (including
endangered and threatened species); fire management; water resources
(including water management projects and groundwater pumping);
livestock grazing; construction and development; tribal trust
resources; soils and mineral resources; recreation; socioeconomics; and
environmental justice.
The primary purpose of preparing an environmental assessment under
NEPA is to determine whether a proposed action would have significant
impacts on the human environment. If significant impacts may result
from a proposed action, then an environmental impact statement is
required (40 CFR 1502.3). Whether a proposed action exceeds a threshold
of significance is determined by analyzing the context and the
intensity of the proposed action (40 CFR 1508.27). The draft
environmental assessment found that the impacts of the proposed
critical habitat designation would be minor and not rise to a
significant level, so preparation of an environmental impact statement
is not required.
Authors
The primary authors of this notice are the staff members of the
Arizona Ecological Services Office and the Southwest Regional Office,
U.S. Fish and Wildlife Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed 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 76 FR 50542, August 15, 2011, 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; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
2. Amend Sec. 17.95(b) by revising paragraphs (b)(4), (b)(5),
(b)(14), and (b)(28) of the entry for ``Southwestern Willow Flycatcher
(Empidonax traillii extimus)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Southwestern Willow Flycatcher (Empidonax traillii extimus)
* * * * *
(4) Critical habitat map units. Data layers defining map units were
created in two steps. First, the linear segments were mapped from the
National Hydrologic Dataset using USA Contiguous Equidistant Conic
(North American Datum 1983) coordinates. Next, the lateral extents were
digitized over the most recent available aerial photography using
Albers Equal Area Conic (North American Datum 1983) coordinates. The
textual description for each critical habitat unit below includes the
Universal Transverse Mercator (UTM) zone and UTM easting (E) and
northing (N) coordinate pairs for the starting and ending points. The
maps in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site, http://www.regulations.gov at Docket No. FWS-R2-ES-2011-0053 and at the field
office responsible for the designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) The index map of southwestern willow flycatcher critical
habitat units follows:
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[[Page 41159]]
[GRAPHIC] [TIFF OMITTED] TP12JY12.000
* * * * *
(14) Amargosa Management Unit.
(i)
----------------------------------------------------------------------------------------------------------------
Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N
----------------------------------------------------------------------------------------------------------------
Amargosa River............................. 11, 569473, 3967513.............. 11, 570730, 3958035
Willow Creek............................... 11, 574000, 3962736.............. 11, 572077, 3960419
Soda Spring-Ash Meadow NWR................. 11, 559403, 4038347.............. 11, 559129, 4038029
Lower Fairbanks-Ash Meadow NWR............. 11, 557830, 4036090.............. 11, 557906, 4035290
Crystal Reservoir-Ash Meadows NWR.......... 11, 561025, 4028706.............. 11, 561307, 4028269
North Tubbs-Ash Meadows NWR................ 11, 562782, 4025402.............. 11, 562970, 4025330
South Tubbs-Ash Meadows NWR................ 11, 563505, 4025681.............. 11, 563483, 4025650
----------------------------------------------------------------------------------------------------------------
(ii) Ash Meadows Riparian Areas and Carson Slough (UTM zone 11, E,
N): [Reserved]
(iii) Map of Amargosa Management Unit follows:
[[Page 41160]]
[GRAPHIC] [TIFF OMITTED] TP12JY12.001
* * * * *
[[Page 41161]]
(28) Santa Cruz Management Unit.
(i)
----------------------------------------------------------------------------------------------------------------
Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N
----------------------------------------------------------------------------------------------------------------
Santa Cruz River........................... 12, 502742, 3480432.............. 12, 502742, 3480432
Cienega Creek.............................. 12, 543034, 3528728.............. 12, 538757, 3515860
Empire Gulch (upper)....................... 12, 534569, 3516911.............. 12, 534222, 3516970
Empire Gulch (lower)....................... 12, 538826, 3519337.............. 12, 538662, 3518116
----------------------------------------------------------------------------------------------------------------
(ii) Map of Santa Cruz Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TP12JY12.002
[[Page 41162]]
* * * * *
Dated: June 28, 2012.
Michael J. Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-16990 Filed 7-11-12; 8:45 am]
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