[Federal Register Volume 77, Number 10 (Tuesday, January 17, 2012)]
[Proposed Rules]
[Pages 2243-2254]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-521]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2010-0070; MO92210-0-0009]
RIN 1018-AX10
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat and Taxonomic Revision for the Pacific Coast
Population of the Western Snowy Plover
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, announce the reopening
of the public comment period on the March 22, 2011, proposed revised
designation of critical habitat for the Pacific Coast population of the
western snowy plover (Pacific Coast WSP) (Charadrius alexandrinus
nivosus) under the Endangered Species Act of 1973, as amended (Act). We
are also recognizing the recent change to the taxonomy of the currently
threatened taxon in which the species was split into two distinct
species. We also announce the availability of a draft economic analysis
(DEA) of the proposed revised designation of critical habitat for
Pacific Coast WSP and an amended required determinations section of the
proposal and reopening of the comment period to allow all interested
parties an opportunity to comment simultaneously on the revised
proposed rule, the associated DEA, and the amended required
determinations section. We are also seeking comment on additional
proposed revisions to Unit CA 46 in Orange County, California. Comments
previously submitted need not be resubmitted, as they will be fully
considered in preparation of the final rule.
DATES: We will consider comments received on or before February 16,
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.
ADDRESSES: 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-R8-ES-2010-0070, 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-R8-ES-2010-0070; 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).
FOR FURTHER INFORMATION CONTACT: Nancy Finley, Field Supervisor or Jim
Watkins, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service,
Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521;
telephone (707) 822-7201; facsimile (707) 822-8411. 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 revised designation of critical
habitat for the Pacific Coast WSP that was published in the Federal
Register on March 22, 2011 (76 FR 16046), our DEA of the proposed
revised designation, and the amended required determinations provided
in this document. We will consider information and recommendations from
all interested parties. We are particularly interested in comments
concerning:
(1) The reasons why we should or should not revise the designation
of ``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) Areas that provide habitat for the Pacific Coast WSP that we
did not discuss in the proposed revised critical habitat rule, and
(b) Areas within the geographical area occupied by the species at
the time of listing that contain elements of the physical or biological
features essential to the conservation of the species which may require
special management considerations or protection and that we should
include in the designation, and reason(s) why.
(3) Specific information on our proposed revised designation of
back-dune systems and other habitats in an attempt to offset the
anticipated effects of sea-level rise associated with climate change.
(4) Specific information on the Pacific Coast WSP, habitat
conditions, and the presence of physical or biological features
essential to the conservation of the species at any of the critical
habitat units proposed in this revised rule (see Critical Habitat Units
section and previous rules (64 FR 68508, December 7, 1999; 70 FR 56970,
September 29, 2005; 76 FR 16046, March 22, 2011)).
(5) How the proposed revised critical habitat boundaries could be
refined to more closely circumscribe the areas
[[Page 2244]]
identified as containing the features essential to the species'
conservation or how we mapped the water's edge and whether any
alternative methods could be used to better determine the critical
habitat boundaries.
(6) Any foreseeable economic, national security, or other relevant
impacts that may result from designating any area that may be included
in the final designation. We are particularly interested in any impacts
on small entities, and the benefits of including or excluding areas
from the proposed revised designation that are subject to these
impacts.
(7) Any information regarding the areas exempted from the proposed
revised rule or whether any specific areas being proposed as revised
critical habitat should be excluded under section 4(b)(2) of the Act,
and whether the benefits of potentially excluding any particular area
outweigh the benefits of including that area under section 4(b)(2) of
the Act, including Tribal lands, within the proposed revised
designation.
(8) Information on any quantifiable economic costs or benefits of
the proposed revised designation of critical habitat.
(9) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed revised critical
habitat.
(10) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(11) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(12) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the DEA, 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.
If you submitted comments or information on the proposed rule (76
FR 16046) during the initial comment period from March 22, 2011, to May
23, 2011, please do not resubmit them. We have incorporated them into
the public record, 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 and
any additional information we receive during both comment periods. On
the basis of public comments, we may, during the development of our
final determination, find that areas proposed are not essential, are
appropriate for exclusion under section 4(b)(2) of the Act, or are not
appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule or DEA 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 and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R8-ES-2010-0070, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Arcata Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of
the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0070, or by mail from
the Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the taxonomic name change and designation of critical habitat for
Pacific Coast WSP in this document. For more background information
concerning the Pacific Coast WSP, refer to the proposed revised
designation of critical habitat published in the Federal Register on
March 22, 2011 (76 FR 16046). For more information on the Pacific Coast
WSP or its habitat, refer to the final listing rule published in the
Federal Register on March 5, 1993 (58 FR 12864), which is available
online at http://www.regulations.gov (at Docket Number FWS-R8-ES-2010-
0070) or the Recovery Plan for the Pacific Coast WSP (Service 2007),
which is online at http://ecos.fws.gov or from the Arcata Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
On March 22, 2011, we published a proposed rule to revise the
designation of critical habitat for the Pacific Coast WSP (76 FR
16046). We proposed to designate approximately 28,261 acres (ac)
(11,436 hectares (ha)) in 68 units located in Washington, Oregon, and
California as critical habitat. That proposal opened a 60-day comment
period, ending May 23, 2011. In this document we are proposing to
revise the boundaries to Unit CA 46 based on new information (see
Changes to Proposed Revised Critical Habitat below). We will submit for
publication in the Federal Register a final critical habitat
designation for the Pacific Coast WSP on or before June 12, 2012.
Taxonomic and Nomenclatural Changes Affecting Charadrius alexandrinus
nivosus
We are making a technical correction to the List of Endangered and
Threatened Wildlife at 50 CFR 17.11(h) to reflect our acceptance of a
taxonomic and nomenclatural change of western snowy plover to
Charadrius nivosus nivosus from C. alexandrinus nivosus. We listed the
Pacific Coast WSP as threatened under the then-recognized name of
Charadrius alexandrinus nivosus (58 FR 12864; March 5, 1993), which is
a subspecies of the Eurasian Kentish plover (Charadrius alexandrinus
(Linnaeus 1758)). We accepted this taxonomy and have used this name in
all Service documents up to and including our proposed revision to the
critical habitat for the Pacific Coast WSP (76 FR 16046; March 22,
2011).
In 2009, Clemens K[uuml]pper (Department of Biology and
Biochemistry, University of Bath, Bath, UK); Tam[aacute]s
Sz[eacute]kely (Department of Biology and Biochemistry, University of
Bath, Bath, UK); and Terry Burke (Department of Animal and Plant
Sciences, University of Sheffield, Sheffield, UK), submitted a proposal
to the American Ornithologist's Union (AOU)--the recognized body on
ornithological naming and scientific nomenclature (AOU 2010A, pp. 145-
146). The proposal presented information to split the Kentish plover
from the snowy plover and adopt Kentish plover for Palaearctic
populations (zoogeographical region consisting of Europe, Africa north
of the Sahara, and most of Asia north of the Himalayas) and change the
scientific name of the snowy plover in Central and North America to
Charadrius nivosus (Cassin 1858) with three subspecies: C. nivosus
nivosus (currently C. alexandrinus
[[Page 2245]]
nivosus) (range to include all of the continental United States and
portions of Mexico), C. nivosus tenuirostris (currently C. alexandrinus
nivosus) (range to include Cuba, Puerto Rico, the Caribbean and the
Yucatan Peninsula) and C. nivosus occidentalis (currently C.
alexandrinus occidentalis) (range to include South America). The
proposal cited genetic, morphological, and behavioral differences
between C. alexandrinus and C. nivosus (Funk et al. 2007; K[uuml]pper
et al. 2009). The proposal was adopted by the AOU (AOU 2010B, pp. 1-5;
Chesser et al. 2011, pp. 603-604). We are within this proposed rule
accepting the taxonomic change for the Pacific Coast WSP and recognize
the listed entity as C. nivosus nivosus and will make changes to the
Code of Federal Regulations in the final designation (see Proposed
Regulation Promulgation section). We also make the necessary changes to
the historical range of C. nivosus nivosus at 50 CFR 17.11(h) to
include the entire continental United States. These technical
corrections do not affect the description, distribution, or listing
status of the Pacific Coast WSP. However, the complete range of C.
nivosus nivosus now includes the Florida occurrences of the subspecies.
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 by the Secretary that such
areas are essential for the conservation of the species. If the
proposed revised 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 funding, authorizing, permitting, or proposing actions
affecting critical habitat must consult with us on the effects of their
actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that the Secretary shall
designate and revise critical habitat based upon the best scientific
data available, after taking into consideration the economic impact,
the impact on national security, and any other relevant impact of
specifying any particular area as critical habitat. The Secretary of
the Interior may exclude an area from critical habitat if he determines
that the benefits of excluding the area outweigh the benefits of
including the area as critical habitat, provided such exclusion will
not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
the Pacific Coast WSP, the benefits of critical habitat include public
awareness of the presence of the Pacific Coast WSP and the importance
of habitat protection, and, where a Federal nexus exists, increased
habitat protection for Pacific Coast WSP 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 undertaken, authorized, or otherwise permitted by Federal
agencies.
The final decision on whether to exclude any areas will be based on
the best scientific and commercial 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 DEA concerning the proposed revised
critical habitat designation, which is available for review and comment
(see ADDRESSES section).
Draft Economic Analysis
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed revised critical habitat
designation for the Pacific Coast WSP. The DEA separates conservation
measures into two distinct categories according to ``without critical
habitat'' and ``with critical habitat'' scenarios. The ``without
critical habitat'' scenario represents the baseline for the analysis,
considering protections otherwise afforded to the Pacific Coast WSP
(e.g., under the Federal listing and other Federal, State, and local
regulations). The ``with critical habitat'' scenario describes the
incremental impacts specifically due to designation of critical habitat
for the species. In other words, these incremental conservation
measures and associated economic impacts would not occur but for the
designation. Conservation measures implemented under the baseline
(without critical habitat) scenario are described qualitatively within
the DEA, but economic impacts associated with these measures are not
quantified. Economic impacts are only quantified for conservation
measures implemented specifically due to the designation of critical
habitat (i.e., incremental impacts). 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 weighing
the benefits of inclusion and exclusion of particular areas under
section 4(b)(2) of the Act. For a further description of the
methodology of the analysis, see Chapter 2, ``Framework for the
Analysis,'' of the DEA (Industrial Economics Incorporated (IEc) 2011).
The DEA evaluates the potential economic impacts associated with
the proposed revised designation of critical habitat for the Pacific
Coast WSP. The analysis focuses on reasonably foreseeable incremental
impacts of the critical habitat designation, or those impacts not
expected to occur absent critical habitat designation. Forecasted
impacts are based on the planning periods for potentially affected
projects and look out over a 20-year time horizon (through 2031). The
DEA considers economic impacts of Pacific Coast WSP conservation
efforts on the following activities: (1) Recreation; (2) development;
(3) gravel mining; (4) military activities; and (5) habitat and species
management.
Due to strong existing protections (include symbolic fencing, nest
exclosures, signage, driving restrictions, and mechanized beach
cleaning restrictions) for the Pacific Coast WSP, the direct
incremental impacts quantified in the DEA are limited to the
administrative cost of considering adverse modification during section
7 consultation with the Service as well as the additional effort
necessary to include analysis of critical habitat in three future
Habitat Conservation Plans
[[Page 2246]]
and one Integrated Natural Resources Management Plan (INRMP) for
Vandenberg Air Force Base (VAFB). These incremental impacts of the
proposed revised critical habitat designation over the 20-year
timeframe (2012 through 2031) are estimated to be $261,000 ($24,700 on
an annualized basis), assuming a seven percent discount rate. Impacts
to military activities represent the greatest percentage of these
overall cost estimates--approximately 72 percent. Impacts to
development activities represent approximately 17 percent, habitat and
species management 6 percent, and mining 4 percent of the overall
impacts (percentages do not sum due to rounding). Incremental impacts
to recreational activities are not expected due to lack of a Federal
nexus compelling section 7 consultation with the Service and
significant protection already provided by existing regulations and
programs (IEc 2011, pp. 4-9-4-12).
The analysis also identifies three activities that may experience
indirect incremental impacts of the proposed revised critical habitat
designation: Recreation at Oceano Dunes State Vehicular Recreation Area
(SVRA) (Unit CA 31), development of the Sterling/McDonald site (Unit CA
22), and development of the Security National Guaranty (SNG) site (Unit
CA 22). Indirect impacts resulting from future litigation or increased
scrutiny from State agencies may include prohibiting off-highway-
vehicle use at Oceano Dunes SVRA and denial of development permits for
the Sterling/McDonald and SNG sites. Due to uncertainty surrounding the
likelihood and extent of such indirect impacts, the data necessary to
quantify these impacts are unavailable. Therefore, these indirect
incremental impacts are discussed qualitatively in the DEA (IEc 2011,
p. 4-2).
Vandenberg Air Force Base INRMP
In the March 22, 2011, proposed revised designation of critical
habitat (76 FR 16046), we did not consider Vandenberg Air Force Base
for exemption under section 4(a)(3) of the Act because they had not yet
completed a Service-approved INRMP. On April 14, 2011, VAFB completed
and we approved the INRMP for VAFB as part of the requirements of the
Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) (for a
full discussion of the Sikes Act, see the Exemptions section of the
March 22, 2011, proposed revision to critical habitat (76 FR 16046)).
The VAFB INRMP provides for the conservation, management, and
stewardship of the natural resources found on the base. The INRMP
includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Because the INRMP was not finalized and approved prior to the March
22, 2011, proposed revised critical habitat designation for the Pacific
Coast WSP (76 FR 16046), we did not exempt these areas prior to their
proposal. We will review the INRMP and will determine in our final
designation of critical habitat if the plan provides a benefit to the
Pacific Coast WSP in those areas covered by the INRMP that we had
determined to be essential to and for the conservation of the Pacific
Coast WSP. If it does, we will exempt those areas covered by the INRMP
from the final designation under the requirements of the National
Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) and
section 4(a)(3)(B)(i) of the Act.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed revised
designation, the changes contained in this NOA, and our amended
required determinations. We may revise the proposed revised designation
or supporting documents to incorporate or address information we
receive during the public comment period. In particular, we may exclude
an area from critical habitat if we determine that the benefits of
excluding the area outweigh the benefits of including the area,
provided the exclusion will not result in the extinction of this
species.
Changes to Proposed Revised Critical Habitat
In this document, we are making revisions to the proposed revised
critical habitat as identified and described in the proposed rule that
we published in the Federal Register on March 22, 2011 (76 FR 16046)
and are seeking comment on the revisions. The changes occur in what was
proposed as subunits CA 46A-D (Bolsa Chica Ecological Reserve) and
subunit CA 46E (Bolsa Chica State Beach) of Unit CA 46. We are also
adding one subunit (subunit CA 46F) to Unit CA 46. During the public
comment period for the March 22, 2011, proposed revised critical
habitat (76 FR 16046), we received comments from a species expert
indicating that we should reevaluate the proposed boundaries at the
Bolsa Chica Ecological Reserve because certain areas included in Unit
CA 46 are not utilized for nesting or foraging by the Pacific Coast
WSP, whereas other areas that were not included in proposed revised
critical habitat within Bolsa Chica Ecological Reserve are used for
nesting and foraging (P. Knapp, pers. comm. 2011).
We also received comments and new information from California State
Parks and a species expert indicating that we should reevaluate the
proposed boundaries of subunit CA 46E at Bolsa Chica State Beach
because the area no longer contains the physical or biological features
essential to the conservation of the species, and is no longer being
used for wintering by the Pacific Coast WSP and has not been used in
the last 4 years (D. Prior, California State Parks, pers. comm. 2011;
P. Knapp, pers. comm. 2011). The information provided indicated that
areas north of the proposal in subunit CA 46E at Bolsa Chica State
Beach are being used by the Pacific Coast WSP as a wintering habitat
and that we should reevaluate the proposed boundaries of beach areas in
Unit CA 46 (Prior, pers. comm. 2011; Knapp, pers. comm. 2011). We have
reviewed the new information and have determined it appropriate to
adjust our proposed revised designation of Unit CA 46.
The purpose of the revisions described below is to better delineate
the areas that meet the definition of critical habitat for the Pacific
Coast WSP and to ensure that all areas proposed are consistent with the
criteria outlined in the proposed revised rule (see ``Criteria Used To
Identify Critical Habitat'' section in the proposed revised critical
habitat designation (76 FR 16046; March 22, 2011)). The areas added to
the proposed unit are within the geographical area that was occupied by
the species at the time it was listed and contain the physical or
biological features essential to the conservation of the species. A
revised map is included in the Proposed Regulation Promulgation section
of this document. Below, we briefly describe the changes made to Unit
CA 46. As a result of these revisions, the naming convention for the
subunits CA 46A-E will change and an additional subunit (CA 46F) will
be added. Also as a result of these revisions, the total area proposed
for designation as critical habitat in Unit CA 46 is 568 ac (230 ha),
an increase of 50 ac (20 ha). The change increases the total amount of
proposed revised critical habitat to 30,497 ac (12,342 ha) (see Table 3
below).
[[Page 2247]]
Changes to Critical Habitat Unit Descriptions
Unit CA 46: Bolsa Chica State Beach and Bolsa Chica Ecological Reserve
Through this notice, we propose to exchange the naming conventions
between subunits CA 46A and 46E so that the Bolsa Chica State Beach
will now be part of subunit CA 46A and the Bolsa Chica Ecological
Reserve will include subunits CA 46B-F. As revised here, the subunits
in Bolsa Chica State Beach and Bolsa Chica Ecological Reserve are
located east of the Pacific Coast Highway, in Orange County,
California. As a result of this revision, the total area proposed for
designation as critical habitat at Bolsa Chica State Beach (now
designated as subunit CA 46A) is 93 ac (38 ha); and the total area for
the Bolsa Chica Ecological Reserve subunits (now designated as subunits
CA 46B-46F) is 475 ac (192 ha). These subunits are entirely owned by
the State of California.
Bolsa Chica Ecological Reserve contains significant nesting and
foraging areas. This location supported 47 breeding adult Pacific Coast
WSP in 2009 (Knapp and Peterson 2009, p. 8). All subunits at Bolsa
Chica Ecological Reserve were occupied at the time of listing and are
currently occupied and annually support one of the largest breeding
populations of Pacific Coast WSP in the region. The Recovery Plan for
Pacific Coast WSP states that this location contributes to the
conservation goal for the region by providing a management potential of
70 breeding birds (Service 2007, Appendix B). This location also
supported an average wintering flock of 14 Pacific Coast WSP from 2003
through 2010 (Service unpublished data). In the proposed revised rule,
we incorrectly stated that this reserve is an abandoned oil field. This
reserve is in fact an active oil field that underwent significant
reconstruction and restoration between 2004 and 2006, including the
addition of three new nest sites and a new ocean inlet that allows the
water level to rise and fall resembling the irregular semi-diurnal
tidal range of southern California's ocean waters (Knapp and Peterson
2009, p. 1). Including these occupied areas for breeding, foraging, and
dispersal is consistent with our criteria used to identify critical
habitat, as outlined in the proposed rule (76 FR 16046; March 22,
2011). No changes were made to subunits CA 46B or CA 46D. Please see
the proposed revised critical habitat for a description of these
subunits (76 FR 16046; March 22, 2011).
Subunit CA 46A: Bolsa Chica State Beach
Through this notice, the proposed revised designation's subunit CA
46E is renamed as subunit CA 46A. After further analysis and review of
comments received on the proposed revised designation, we have adjusted
the boundary of the 8 ac (3 ha) of beach that was included in the
proposed rule because the area no longer contains the physical or
biological features essential to the conservation of the species, and
has not supported Pacific Coast WSP for the past 4 years (Prior, pers.
comm. 2011). The subunit as revised here consists of sandy beach
habitat north of the critical habitat unit proposed in March 2011, and
extends to just south of the Sunset Beach area near Warner Avenue
adjacent to the Bolsa Chica Ecological Reserve. As a result of the
revision reflected here, the area proposed for designation as critical
habitat in subunit CA 46A is 93 ac (38 ha), an increase of 85 ac (35
ha) from what was proposed for Bolsa Chica State Beach in the proposed
revised designation. This subunit is owned entirely by the State of
California. The revised subunit CA 46A was occupied at the time of
listing and is currently occupied and contains the physical or
biological features that are essential to the conservation of the
species, including a wide sandy beach with occasional surf-cast wrack
supporting small invertebrates for foraging, and because it supports an
average wintering flock of 27 Pacific Coast WSP (Service unpublished
data 2003-2010) in a location with high-quality breeding habitat.
Subunit CA 46A may require special management considerations or
protection to address threats from recreational disturbance and beach
raking as discussed for this subunit in the March 2011 proposed revised
rule. Additionally, adding occupied areas for wintering, foraging, and
dispersal is consistent with our criteria used to identify critical
habitat, as outlined in the proposed revised rule (76 FR 16046; March
22, 2011).
Unit CA46: Bolsa Chica Ecological Reserve; Subunits CA 46C, 46E, 46F
Subunit CA 46C
We revised subunit CA 46C to include additional areas containing
the physical or biological features essential to the conservation of
the species for breeding, foraging, and dispersal that were not
captured in the proposed revised rule. This addition is based on
information received during the public comment period that indicates
that these areas include year-round foraging habitat in extensive
mudflats and additional nesting areas for Pacific Coast WSP to expand
into. This unit was occupied at the time of listing. This location
contains the physical and biological features essential to the
conservation of the species, including tidally influenced estuarine mud
flats supporting small invertebrates, and seasonally dry ponds that
provide nesting and foraging habitat for Pacific Coast WSP. As a result
of this revision, the area proposed for designation as critical habitat
in subunit CA 46C is 222 ac (90 ha), an increase of 201 ac (81 ha) from
the proposed rule. This location contains tidally influenced estuarine
mud flats supporting small invertebrates, and seasonally dry ponds and
nesting islands that provide nesting and foraging habitat for Pacific
Coast WSP. The physical or biological features essential to the
conservation of the species in this subunit may require special
management considerations or protection to address threats from
vegetation encroachment in nesting and foraging areas and predation of
chicks and eggs.
Subunit CA 46E
Here, we rename the Bolsa Chica Ecological Reserve areas that were
proposed as subunit CA 46A in the proposed revised rule to subunit CA
46E and remove the areas that do not contain the physical or biological
features essential to the conservation of the species. This area was
occupied at the time of listing. This revised subunit CA 46E is reduced
in size to more accurately represent the nesting and foraging areas
used by Pacific Coast WSP. We removed almost all of the Muted Tidal
Basin area from subunit 46E because this area does not contain the
physical or biological features essential to the conservation of
Pacific Coast WSP. We have adjusted the boundary in the Future Full
Tidal Basin to represent areas used for nesting and foraging. As a
result of this revision, the area proposed for designation as critical
habitat in subunit CA 46E is 247 ac (100 ha), a decrease of 237 ac (96
ha) from what was proposed as subunit CA 46A in the proposed rule. This
revised location contains tidally influenced estuarine mud flats
supporting small invertebrates, and seasonally dry ponds and nesting
islands that provide nesting and foraging habitat for Pacific Coast
WSP. The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from vegetation
encroachment in nesting and
[[Page 2248]]
foraging areas and predation of chicks and eggs.
Subunit 46F
We add one subunit (CA 46F) to represent the single nesting and
foraging area utilized by Pacific Coast WSP in the Muted Tidal Basin
(Nest Site 2). This area was occupied at the time of listing and
contains the physical or biological features essential to the
conservation of the species. This location contains tidally influenced
estuarine mud flats supporting small invertebrates, and seasonally dry
ponds and nesting islands that provide nesting and foraging habitat for
Pacific Coast WSP. The physical or biological features essential to the
conservation of the species in this subunit may require special
management considerations or protection to address threats from
vegetation encroachment in nesting and foraging areas and predation of
chicks and eggs. As a result of this addition, the area proposed for
designation as critical habitat in subunit CA 46F is 2 ac (1 ha).
In addition to the unit changes outlined above, we are also
correcting land ownership acreage numbers identified in Table 3 of the
March 22, 2011, proposed revised rule (76 FR 16046). The corrected
Table 3 with changes to Unit CA-46 is below. Also, in the proposed
revised rule we incorrectly stated that no Department of Defense lands
were within the proposed revised designation. Approximately 1,084 ac
(439 ha) have been identified on VAFB in units CA-32 and CA-33. On
April 14, 2011, we approved the INRMP for VAFB and have determined that
the plan provides a benefit to the species for which critical habitat
is proposed for designation. We have now reviewed and approved the VAFB
INRMP and will recommend that the Secretary exempt the areas determined
to be essential to and for the conservation of the Pacific Coast WSP
from the final designation under the requirements of the National
Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) and
section 4(a)(3)(B)(i) of the Act.
Table 3--Proposed Revised Critical Habitat for the Pacific Coast WSP Showing Federal, State, Tribal, and Other (Private and Local Government) Land
Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Federal Tribal State Other
Unit number Unit name -----------------------------------------------------------------------------------------
ac ha ac ha ac ha ac ha ac ha
--------------------------------------------------------------------------------------------------------------------------------------------------------
Washington:
WA 1............................. Copalis Spit........... 407 165 0 0 0 0 407 165 0 0
WA 2............................. Damon Point............ 673 272 0 0 0 0 648 262 25 10
WA 3A............................ Midway Beach........... 697 282 0 0 0 0 697 282 0 0
WA 3B *.......................... Shoalwater/Graveyard... 1,121 454 0 0 336 136 505 204 280 113
-----------------------------------------------------------------------------------------
Unit WA-3 Totals............. ....................... 1,818 736 0 0 336 136 1,202 486 280 113
--------------------------------------------------------------------------------------------------------------------------------------------------------
WA 4A............................ Leadbetter Spit........ 2,463 997 2,026 820 0 0 437 177 0 0
WA 4B............................ Gunpowder Sands Island. 904 366 904 366 0 0 0 0 0 0
-----------------------------------------------------------------------------------------
Unit WA-4 Totals............. ....................... 3,367 1,363 2,930 1,186 0 0 437 177 0 0
-----------------------------------------------------------------------------------------
WASHINGTON STATE TOTALS.. ....................... 6,265 2,535 2,930 1,186 336 136 2,694 1,090 305 123
--------------------------------------------------------------------------------------------------------------------------------------------------------
Oregon:
OR 1............................. Columbia River Spit.... 169 68 169 68 0 0 0 0 0 0
OR 2............................. Necanicum River Spit... 211 85 0 0 0 0 161 65 50 20
OR 3............................. Nehalem River Spit..... 299 121 0 0 0 0 299 121 0 0
OR 4............................. Bayocean Spit.......... 367 149 279 113 0 0 0 0 88 36
OR 5............................. Netarts Spit........... 541 219 0 0 0 0 541 219 0 0
OR 6............................. Sand Lake South........ 200 81 0 0 0 0 0 0 200 81
OR 7............................. Sutton/Baker Beaches... 372 151 372 151 0 0 0 0 0 0
OR 8A............................ Siltcoos Breach........ 15 6 15 6 0 0 0 0 0 0
OR 8B............................ Siltcoos River Spit.... 241 98 241 98 0 0 0 0 0 0
OR 8C............................ Dunes Overlook 716 290 716 290 0 0 0 0 0 0
Tahkenitch Creek Spit.
OR 8D............................ North Umpqua River Spit 236 96 151 61 0 0 85 34 0 0
Unit OR-8 Totals............. ....................... 1,208 489 1,123 454 0 0 85 34 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
OR 9............................. Tenmile Creek Spit..... 244 99 244 99 0 0 0 0 0 0
OR 10............................ Coos Bay North Spit.... 308 125 308 125 0 0 0 0 0 0
OR 11............................ Bandon to New River.... 1,016 411 459 186 0 0 267 108 290 117
OR 12 *.......................... Elk River Spit......... 167 68 0 0 0 0 0 0 167 68
OR 13............................ Euchre Creek........... 116 47 0 0 0 0 0 0 116 47
-----------------------------------------------------------------------------------------
OREGON STATE TOTALS...... ....................... 5,218 2,112 2,954 1,195 0 0 1,353 548 911 369
--------------------------------------------------------------------------------------------------------------------------------------------------------
California:
CA 1............................. Lake Earl.............. 74 30 0 0 0 0 22 9 52 21
CA 2............................. Gold Bluffs Beach...... 235 95 0 0 0 0 235 95 0 0
CA 3A............................ Humboldt Lagoons--Stone 55 22 0 0 0 0 55 22 0 0
Lagoon.
CA 3B............................ Humboldt Lagoons--Big 271 110 0 0 0 0 270 109 <1 <1
Lagoon.
-----------------------------------------------------------------------------------------
Unit CA-3 Totals............. ....................... 326 132 0 0 0 0 325 132 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 4A............................ Clam Beach/Little River 340 138 0 0 0 0 226 91 114 46
CA 4B............................ Mad River.............. 456 185 0 0 0 0 149 60 307 124
-----------------------------------------------------------------------------------------
Unit CA-4 Totals............. ....................... 796 322 0 0 0 0 375 152 421 170
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 2249]]
CA 5A............................ Humboldt Bay South Spit 577 234 20 8 0 0 541 219 16 6
CA 5B............................ Eel River North Spit/ 467 189 0 0 0 0 460 186 7 3
Beach.
CA 5C............................ Eel River South Spit/ 340 138 0 0 0 0 176 71 164 66
Beach.
-----------------------------------------------------------------------------------------
Unit CA-5 Totals............. ....................... 1,384 560 20 8 0 0 1,177 476 187 76
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 6............................. Eel River Gravel Bars.. 2,699 1,092 0 0 0 0 591 239 2,108 853
CA 7............................. MacKerricher Beach..... 1,176 476 0 0 0 0 1,102 446 74 30
CA 8............................. Manchester Beach....... 482 195 68 28 0 0 402 163 12 5
CA 9............................. Dillon Beach........... 39 16 0 0 0 0 0 0 39 16
CA 10A........................... Pt Reyes............... 460 186 460 186 0 0 0 0 0 0
CA 10B........................... Limantour.............. 156 63 156 63 0 0 0 0 0 0
-----------------------------------------------------------------------------------------
Unit CA-10 Totals............ ....................... 616 249 616 249 0 0 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 11............................ Napa................... 618 250 0 0 0 0 618 250 0 0
CA 12............................ Hayward................ 1 0 0 0 0 0 0 0 1 0
CA 13A........................... Eden Landing........... 237 96 0 0 0 0 228 92 8 3
CA 13B........................... Eden Landing........... 171 69 0 0 0 0 171 69 0 0
CA 13C........................... Eden Landing........... 609 246 0 0 0 0 602 244 7 3
-----------------------------------------------------------------------------------------
Unit CA-13 Totals............ ....................... 1,017 412 0 0 0 0 1,001 405 15 6
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 14............................ Ravenswood............. 89 36 0 0 0 0 0 0 89 36
CA 15............................ Warm Springs........... 169 68 169 68 0 0 0 0 0 0
CA 16............................ Half Moon Bay.......... 36 15 0 0 0 0 36 15 0 0
CA 17............................ Waddell Creek Beach.... 25 10 0 0 0 0 19 8 7 3
CA 18............................ Scott Creek Beach...... 23 9 0 0 0 0 15 6 8 3
CA 19............................ Wilder Creek Beach..... 15 6 0 0 0 0 15 6 0 0
CA 20............................ Jetty Road to Aptos.... 400 162 0 0 0 0 370 150 30 12
CA 21............................ Elkhorn Slough Mudflats 281 114 0 0 0 0 281 114 0 0
CA 22............................ Monterey to Moss 971 393 424 172 0 0 286 116 261 106
Landing.
CA 23............................ Point Sur Beach........ 72 29 0 0 0 0 38 15 34 14
CA 24............................ San Carpoforo Creek.... 24 10 4 2 0 0 18 7 3 1
CA 25............................ Arroyo Laguna Creek.... 28 11 0 0 0 0 18 7 10 4
CA 26............................ San Simeon State Beach. 24 10 0 0 0 0 24 10 0 0
CA 27............................ Villa Creek Beach...... 20 8 0 0 0 0 20 8 0 0
CA 28............................ Toro Creek............. 34 14 0 0 0 0 11 4 23 9
CA 29............................ Atascadero Beach/Morro 214 87 0 0 0 0 65 26 149 60
Strand SB.
CA 30............................ Morro Bay Beach........ 1,078 436 0 0 0 0 949 384 129 52
CA 31............................ Pismo Beach/Nipomo 1,655 670 242 98 0 0 553 224 860 348
Dunes.
CA 32............................ Vandenberg North....... 711 288 711 288 0 0 0 0 0 0
CA 33............................ Vandenberg South....... 424 172 374 151 0 0 0 0 50 20
CA 34............................ Devereaux Beach........ 52 21 0 0 0 0 43 17 9 4
CA 35............................ Santa Barbara Beaches.. 65 26 0 0 0 0 30 12 35 14
CA 36............................ Santa Rosa Island 586 237 586 237 0 0 0 0 0 0
Beaches.
CA 37............................ San Buenaventura Beach. 69 28 0 0 0 0 69 28 0 0
CA 38............................ Mandalay to Santa Clara 671 272 0 0 0 0 458 185 213 86
River.
CA 39............................ Ormond Beach........... 319 129 0 0 0 0 159 64 160 65
CA 43............................ Zuma Beach............. 73 30 0 0 0 0 1 0 72 29
CA 44............................ Malibu Beach........... 13 5 0 0 0 0 13 5 0 0
CA 45A........................... Santa Monica Beach..... 48 19 0 0 0 0 29 12 19 8
CA 45B........................... Dockweiler North....... 34 14 0 0 0 0 34 14 0 0
CA 45C........................... Dockweiler South....... 65 26 0 0 0 0 54 22 11 4
CA 45D........................... Hermosa State Beach.... 27 11 0 0 0 0 8 3 19 8
-----------------------------------------------------------------------------------------
Unit CA-45 Totals............ ....................... 174 70 0 0 0 0 125 51 49 20
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 46A........................... Bolsa Chica State Beach 93 38 0 0 0 0 93 38 0 0
CA 46B........................... Bolsa Chica Reserve.... 2 1 0 0 0 0 2 1 0 0
CA 46C........................... Bolsa Chica Reserve.... 222 90 0 0 0 0 222 90 0 0
CA 46D........................... Bolsa Chica Reserve.... 2 1 0 0 0 0 2 1 0 0
CA 46E........................... Bolsa Chica Reserve.... 247 100 0 0 0 0 247 100 0 0
CA 46F........................... Bolsa Chica Reserve.... 2 1 0 0 0 0 2 1 0 0
-----------------------------------------------------------------------------------------
Unit CA-46 Totals............ ....................... 568 230 0 0 0 0 568 230 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 47............................ Santa Ana River Mouth.. 19 8 0 0 0 0 18 7 1 0
CA 48............................ Balboa Beach........... 25 10 0 0 0 0 0 0 25 10
CA 50A........................... Batiquitos Lagoon...... 24 10 0 0 0 0 18 7 6 2
CA 50B........................... Batiquitos Lagoon...... 23 9 0 0 0 0 15 6 8 3
CA 50C........................... Batiquitos Lagoon...... 19 8 0 0 0 0 0 0 19 8
-----------------------------------------------------------------------------------------
Unit CA-50 Totals............ ....................... 66 27 0 0 0 0 33 13 33 13
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 51A........................... San Elijo Lagoon 3 1 0 0 0 0 3 1 0 0
Ecological Reserve.
CA 51B........................... San Elijo Lagoon 5 2 0 0 0 0 1 0 4 2
Ecological Reserve.
[[Page 2250]]
CA 51C........................... San Elijo Lagoon 7 3 0 0 0 0 7 3 0 0
Ecological Reserve.
-----------------------------------------------------------------------------------------
Unit CA-51 Totals............ ....................... 15 6 0 0 0 0 11 4 4 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 52A........................... San Dieguito Lagoon.... 4 2 0 0 0 0 0 0 4 2
CA 52B........................... San Dieguito Lagoon.... 3 1 0 0 0 0 0 0 3 1
CA 52C........................... San Dieguito Lagoon.... 4 2 0 0 0 0 4 2 0 0
-----------------------------------------------------------------------------------------
Unit CA-52 Totals............ ....................... 11 4 0 0 0 0 4 2 7 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 53............................ Los Penasquitos Lagoon. 32 13 0 0 0 0 32 13 1 0
CA 54A........................... Fiesta Island.......... 2 1 0 0 0 0 1 0 1 0
CA 54B........................... Mariner's Point........ 7 3 0 0 0 0 1 0 6 2
CA 54C........................... South Mission Beach.... 38 15 0 0 0 0 8 3 30 12
CA 54D........................... San Diego River Channel 51 21 0 0 0 0 38 15 13 5
-----------------------------------------------------------------------------------------
Unit CA-54 Totals............ ....................... 98 40 0 0 0 0 48 19 50 20
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 55B........................... Coronado Beach......... 74 30 0 0 0 0 74 30 0 0
CA 55E........................... Sweetwater Marsh 132 53 77 31 0 0 1 0 54 22
National Wildlife
Refuge and D Street
Fill.
CA 55F........................... Silver Strand State 82 33 74 30 0 0 8 3 0 0
Beach.
CA 55G........................... Chula Vista Wildlife 10 4 0 0 0 0 10 4 0 0
Reserve.
CA 55I........................... San Diego National 5 2 0 0 0 0 0 0 5 2
Wildlife Refuge, South
Bay Unit.
CA 55J........................... Tijuana Estuary and 150 61 71 29 0 0 58 23 21 8
Beach.
-----------------------------------------------------------------------------------------
Unit CA-55 Totals (does not ....................... 453 183 222 90 0 0 151 61 80 32
include exempt sub-units).
-----------------------------------------------------------------------------------------
CALIFORNIA TOTALS........ ....................... 19,014 7,695 3,436 1,390 0 0 10,279 4,160 5,301 2,145
-----------------------------------------------------------------------------------------
WASHINGTON, OREGON, ....................... 30,497 12,342 9,320 3,772 336 136 14,326 5,798 6,517 2,637
CALIFORNIA GRAND TOTALS.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Required Determinations--Amended
In our March 22, 2011, proposed rule (76 FR 16046), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data to make these determinations. In this
document, we affirm the information in our proposed revised rule
concerning Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and
Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951). However, based on
the DEA data, we are amending our required determination concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (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 effect of the rule on small entities (i.e.,
small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of an agency certifies the rule will not have a significant
economic impact on a substantial number of small entities. 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 DEA of the proposed revised designation, we
provide our analysis for determining whether the proposed revised
designation would result in a significant economic impact on a
substantial number of small entities. Based on comments we receive, we
may revise this determination as part of our final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; 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
[[Page 2251]]
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 revised designation of critical
habitat for the Pacific Coast WSP would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities, such as development,
recreation, habitat management or restoration activities (IEc 2011, p.
A-5). 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 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 Pacific Coast WSP 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 this
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 DEA, 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 Pacific
Coast WSP. The Service and the action agency are the only entities with
direct compliance costs associated with this proposed revised critical
habitat designation, although small entities may participate in section
7 consultation as a third party. It is, therefore, possible that the
small entities may spend additional time considering critical habitat
during section 7 consultation for the Pacific Coast WSP. The DEA
indicates that the incremental impacts potentially incurred by small
entities are limited to two private developers working through the Sand
City Redevelopment Agency at the Sterling-McDonald site (Unit CA 22)
and Security National Guaranty (SNG) (Unit CA 22). The indirect
incremental impacts resulting from development of the Sterling-McDonald
and the Security National Guaranty (SNG) site (Unit CA 22) result from
potential denial of development permits for the Sterling-McDonald and
SNG sites by the California Coastal Commission (CCC). Both projects
have been in planning for numerous years, and previous applications for
development permits from the CCC have been denied due to being in
noncompliance with the California Coastal Act of 1976. The projects
have been subsequently modified to decrease impacts to coastal
resources, and proponents are again seeking CCC approval. Because the
project modifications have not yet been reviewed by the CCC, there is
still some uncertainty as to whether the projects will be allowed to
move forward at this time and thus result in the potential incremental
impacts identified in the DEA.
The Sterling-McDonald site plan calls for a 342 unit coastal
resort. The project has been in planning since the 1990s and an
Environmental Impact Report (EIR) under the California Environmental
Quality Act (CEQA) is currently under development on the project's
current design. Project proponents expect the EIR to be completed in
2012.
The 39-ac (16-ha) SNG site is also planned for a mixed-use resort
and will include up to 341 units. The proposed project has completed an
EIR under CEQA and as part of local and State permitting processes, SNG
has prepared a detailed habitat protection plan (HPP) for the site. The
HPP evaluates and proposes mitigation for potential impacts to
biological resources, including the Pacific Coast WSP and its habitat.
Two other federally listed species occur at the project site including
the endangered Smith's blue butterfly (Euphilotes enoptes smithi) (with
proposed critical habitat: 42 FR 7972; February 8, 1977) and threatened
Monterey spineflower (Chorizanthe pungens var. pungens) with final
critical habitat (73 FR 1525; January 9, 2008). The HPP also includes
proposed mitigation for these two species. The HPP has been reviewed by
the local jurisdictions and has been subject to public review as part
of the CCC hearing process in December 2009. Project proponents
anticipate that the CCC will conditionally approve the final resort
design on adoption and implementation of the HPP. Final approval of the
HPP by CCC is anticipated prior to the issuance of the final revised
critical habitat designation for the Pacific Coast WSP.
The process for the CCC to issue permits for coastal development
projects involves the development of Local Coastal Programs (LCPs) by
cities and counties. LCPs are basic planning tools used by local
governments to guide development in the coastal zone, in partnership
with the CCC. After an LCP has been certified by the CCC to be in
compliance with the Coastal Act requirements, the coastal permitting
authority over most new development is transferred to the local
government. As of 2008, approximately 72 percent of the LCPs have been
certified by the CCC, representing close to 90 percent of the
geographic area of the coastal zone. Unit CA-22 for the Pacific Coast
WSP falls within the City of Sand City LCP which includes the coastal
areas near the City of Sand City south to Bay Avenue in Monterey
County, California. Since 2004, when the City of Sand City LCP was
approved by the CCC, the City of Sand City issued a total of 107
permits for development projects or other construction activity
affecting coastal resources within the LCP (CCC 2010, pp. Part 3 16-
17). The two small businesses represent less than 2 percent of the
total number of actions permitted regionally by the City of Sand City
and certified by the CCC.
Due to the uncertainty of the status of the two projects, the
extent of their indirect impacts, and the unavailability of data
necessary to quantify impacts, the DEA does not quantify, but
qualitatively discusses, these potential indirect impacts (IEc 2011, p.
A-5). Please refer to the DEA of the proposed revised critical habitat
designation for a more detailed discussion of potential economic
impacts.
Our analysis constitutes an evaluation of not only potentially
directly affected parties, but those also potentially indirectly
affected. Under the RFA and following recent case law, we are only
required to evaluate the direct effects of a regulation to determine
compliance. Because the regulatory effect of critical habitat is
through section 7 of the Act which applies only to Federal agencies, we
have determined that only Federal agencies are directly affected by
this rulemaking. Other entities, such as small businesses, are only
indirectly affected. However, to better understand the potential
effects of a designation of
[[Page 2252]]
critical habitat, we frequently evaluate the potential impact to those
entities that may be indirectly affected, as was the case for this
rulemaking. In doing so, we focus on the specific areas being
designated as critical habitat and compare the number of small business
entities potentially affected in that area with other small business
entities in the regional area, versus comparing the entities in the
area of designation with entities nationally--which is more commonly
done. This results in an estimation of a higher proportion of small
businesses potentially affected. In this rulemaking, we calculate that
the proportion of small businesses potentially affected is less than 2
percent of those regionally. If we were to calculate that value based
on the proportion nationally, then our estimate would be significantly
lower than 1 percent.
Following our evaluation of potential effects to small business
entities from this rulemaking, we do not believe that the two small
businesses or less than 2 percent of the small businesses in the
affected sector represents a substantial number. However, we recognize
that the potential effects to these small businesses may be significant
due to not quantifying the potential economic impacts. We will further
evaluate the potential effects to these small businesses as we develop
our final rulemaking.
In summary, we have considered whether the proposed revised
designation would result in a significant economic impact on a
substantial number of small entities. Information for this analysis was
gathered from the Small Business Administration, stakeholders, and the
Service. We have identified two small entities that may be impacted by
the proposed revised critical habitat designation. For the above
reasons and based on currently available information, we certify that,
if promulgated, the proposed revised critical habitat designation would
not have a significant economic impact on a substantial number of small
business entities. Therefore, an initial regulatory flexibility
analysis is not required.
Authors
The primary authors of this notice are the staff members of the
Arcata Fish and Wildlife Office, Region 8, 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 16046, March 22, 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; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Plover, western
snowy'' under ``BIRDS'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Plover, western snowy........... Charadrius nivosus U.S.A. (AZ, CA, CO, U.S.A. (CA, OR, T 493 17.95(b) NA
nivosus. KS, NM, NV, OK, WA), Mexico
OR, TX, UT, WA), (within 50 miles
Mexico. of Pacific coast).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.95(b), in the entry for ``Western Snowy Plover
(Charadrius nivosus nivosus)--Pacific Coast Population'' by
redesignating paragraphs (87) through (108) as paragraphs (88) through
(109) and revising paragraphs (82) through (86) and adding a new
paragraph (87) to read as set forth below:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Western Snowy Plover (Charadrius nivosus nivosus)--Pacific Coast
Population.
* * * * *
(82) Subunit CA 46A: Bolsa Chica State Beach, Orange County,
California.
(i) [Reserved for textual description of Subunit CA 46A: Bolsa
Chica State Beach, Orange County, California]
(ii) Note: Subunit CA 46A: Bolsa Chica Beach, Orange County,
California, is depicted on the map in paragraph (87)(ii) of this entry.
(83) Subunit CA 46B: Bolsa Chica Reserve, Orange County,
California.
(i) [Reserved for textual description of Subunit CA 46B: Bolsa
Chica Reserve, Orange County, California]
(ii) Note: Subunit CA 46B: Bolsa Chica Reserve, Orange County,
California, is depicted on the map in paragraph (87)(ii) of this entry.
(84) Subunit CA 46C: Bolsa Chica Reserve, Orange County,
California.
(i) [Reserved for textual description of Subunit CA 46C: Bolsa
Chica Reserve, Orange County, California]
(ii) Note: Subunit CA 46C: Bolsa Chica Reserve, Orange County,
California, is depicted on the map in paragraph (87)(ii) of this entry.
(85) Subunit CA 46D: Bolsa Chica Reserve, Orange County,
California.
(i) [Reserved for textual description of Subunit CA 46D: Bolsa
Chica Reserve, Orange County, California]
(ii) Note: Subunit CA 46D: Bolsa Chica Reserve, Orange County,
California, is depicted on the map in paragraph (87)(ii) of this entry.
(86) Subunit CA 46E: Bolsa Chica Reserve, Orange County,
California.
[[Page 2253]]
(i) [Reserved for textual description of Subunit CA 46D: Bolsa
Chica Reserve, Orange County, California]
(ii) Note: Subunit CA 46E: Bolsa Chica Reserve, Orange County,
California, is depicted on the map in paragraph (87)(ii) of this entry.
(87) Subunit CA 46F: Bolsa Chica Reserve, Orange County,
California.
(i) [Reserved for textual description of Subunit CA 46F: Bolsa
Chica Reserve, Orange County, California]
(ii) Note: Map of Subunits CA 46A-46F: Bolsa Chica State Beach and
Bolsa Chica Reserve, Orange County, California, follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP17JA12.000
[[Page 2254]]
* * * * *
Dated: January 4, 2012.
Eileen Sobek,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-521 Filed 1-13-12; 8:45 am]
BILLING CODE 4310-55-C