[Federal Register Volume 78, Number 21 (Thursday, January 31, 2013)]
[Proposed Rules]
[Pages 6785-6794]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02002]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2011-0098; 4500030113]
RIN 1018-AX14
Endangered and Threatened Wildlife and Plants; Listing 38 Species
on Molokai, Lanai, and Maui as Endangered and Designating Critical
Habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on our June 11, 2012 (77 FR 34464),
proposal to list 38 species as endangered, reaffirm the listing of 2
endemic Hawaiian plants currently listed as endangered, and designate
critical habitat for 39 of these 40 plant and animal species on the
Hawaiian Islands of Molokai, Lanai, and Maui; designate critical
habitat for 11 plant and animal species that are already listed as
endangered; and revise critical habitat for 85 plant species that are
already listed as endangered or threatened on the Hawaiian Islands of
Molokai, Lanai, Maui, and Kahoolawe, under the Endangered Species Act
of 1973, as amended (Act). We also announce the availability of a draft
economic analysis (DEA) of the proposed designation and an amended
required determinations section of the proposed designation. We are
reopening the comment period to allow all interested parties an
opportunity to comment simultaneously on the proposed rule, the
associated DEA, and the amended required determinations section.
Comments previously submitted on this rulemaking do not need to be
resubmitted, as they will be fully considered in preparation of the
final rule. We also announce a public hearing and public information
meeting on our proposed rule and associated documents.
DATES: Written Comments: We will consider comments received or
postmarked on or before March 4, 2013. Please note 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. If you are submitting your comments by hard copy, please
mail them by March 4, 2013, to ensure that we receive them in time to
give them full consideration.
Public Information Meeting: We will hold a public information
meeting in Kihei, Maui, on Thursday, February 21, 2013, from 3 p.m. to
5 p.m. (see ADDRESSES section, below).
Public Hearing: We will hold a public hearing in Kihei, Maui, on
Thursday, February 21, 2013, from 6 p.m. to 8 p.m. (see ADDRESSES
section, below).
ADDRESSES: Document Availability: You may obtain copies of the June 11,
2012, proposed rule, this document, and the draft economic analysis at
http://www.regulations.gov at Docket Number FWS-R1-ES-2011-0098, from
the Pacific Islands Fish and Wildlife Office's Web site (http://www.fws.gov/pacificislands/), or by contacting the Pacific Islands Fish
and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT).
Written Comments: You may submit written comments by one of the
following methods, or at the public information meeting or public
hearing:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R1-ES-2011-0098, which
is the docket number for this rulemaking, and follow the directions for
submitting a comment.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R1-ES-2011-0098; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
Public Information Meeting and Public Hearing: Both the public
information meeting and the public hearing will be held in the multi-
purpose room at the Kealia Pond National Wildlife Refuge, Milepost 6,
Mokulele Highway (Highway 311), Kihei, Maui; 808-875-1582.
We will post all comments we receive 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: Loyal Mehrhoff, Field Supervisor,
Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Box
50088, Honolulu, HI 96850; by telephone at 808-792-9400; or by
facsimile at 808-792-9581. 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 rule that was published in the
Federal Register on June 11, 2012 (77 FR 34464), our draft economic
analysis of the proposed critical habitat designation, and the amended
required determinations section provided in this document.
On June 11, 2012, we published a proposal (77 FR 34464) to list 38
species as endangered, reaffirm the listing of 2 endemic Hawaiian
plants currently listed as endangered, and designate critical habitat
for 39 of these 40 plant and animal species on the Hawaiian Islands of
Molokai, Lanai, and Maui; designate critical habitat for 11 plant and
animal species that are already listed as endangered, and revise
critical habitat for 85 plant species that are already listed as
endangered or threatened on the Hawaiian Islands of Molokai, Lanai,
Maui, and Kahoolawe. Later this year, we will publish two separate
final rules: One concerning the listing determinations described above,
and the other concerning the critical habitat determinations described
above. The final listing rule will publish under the existing Docket
No. FWS-R1-ES-2011-0098, and the final critical habitat designation
will publish under Docket No. FWS-R1-ES-2013-0003.
We request that you provide comments specifically on our listing
determination under Docket No. FWS-R1-ES-2011-0098. We will consider
information and recommendations from all interested parties. We are
particularly interested in comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
threats (or the lack thereof) to the 40 species proposed or reevaluated
for listing, and regulations that may be addressing those threats.
(2) Additional information concerning the range, distribution, and
population sizes of each of the 40 species proposed or reevaluated for
listing, including the locations of any additional populations of these
species.
(3) Any information on the biological or ecological requirements of
the 40 species proposed or reevaluated for listing.
(4) Comments on our proposal to revise taxonomic classification
with
[[Page 6786]]
name changes or family changes for 11 plant species and 2 bird species
identified in the proposed rule.
We request that you provide comments specifically on the critical
habitat determination and related draft economic analysis under Docket
No. FWS-R1-ES-2013-0003. We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
(5) The reasons why we should or should not designate areas for any
of the 135 species as ``critical habitat'' under section 4 of the
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et
seq.), including whether there are threats to these species from human
activity, the degree of which can be expected to increase due to the
designation, and whether the benefit of designation would outweigh
threats to these species caused by the designation, such that the
designation of critical habitat is prudent.
(6) Whether a revision of critical habitat is warranted for the 85
plant species that are already listed as endangered or threatened under
the Act and that currently have designated critical habitat.
(7) Specific information on:
The amount and distribution of critical habitat for the
135 species;
Areas in the geographic area occupied at the time of
listing and that contain the physical or biological features essential
for the conservation of the species;
Whether special management considerations or protections
may be required for the physical or biological features essential to
the conservation of the 135 species; and
What areas not currently occupied are essential to the
conservation of the species and why.
(8) Land use designations and current or planned activities in the
areas occupied or unoccupied by the species and proposed as critical
habitat, and the possible impacts of these activities on these species,
or of critical habitat on these designations or activities.
(9) Any foreseeable economic, national security, or other relevant
impacts of designating any area as critical habitat. We are
particularly interested in any impacts on small entities, and the
benefits of including or excluding areas that may experience these
impacts.
(10) Whether the benefits of excluding any particular area from
critical habitat outweigh the benefits of including that area as
critical habitat under section 4(b)(2) of the Act, after considering
the potential impacts and benefits of the proposed critical habitat
designation. We are considering the possible exclusion of non-Federal
lands, especially areas in private ownership, and whether the benefits
of exclusion may outweigh the benefits of inclusion of those areas. We,
therefore, request specific information on:
The benefits of including any specific areas in the final
designation and supporting rationale.
The benefits of excluding any specific areas from the
final designation and supporting rationale.
Whether any specific exclusions may result in the
extinction of the species and why.
For private lands in particular, we are interested in information
regarding the potential benefits of including private lands in critical
habitat versus the benefits of excluding such lands from critical
habitat. This information does not need to include a detailed technical
analysis of the potential effects of designated critical habitat on
private property. In weighing the potential benefits of exclusion
versus inclusion of private lands, the Service may consider whether
existing partnership agreements provide for the management of the
species. We may consider, for example, the status of conservation
efforts, the effectiveness of any conservation agreements to conserve
the species, and the likelihood of the conservation agreement's future
implementation. We request comment on the broad public benefits of
encouraging collaborative efforts and encouraging local and private
conservation efforts.
(11) Our process used for identifying those areas that meet the
definition of critical habitat for the species, as described in the
section of the proposed rule titled ``Criteria Used to Identify
Critical Habitat.''
(12) Information on the extent to which the description of
potential economic impacts in the draft economic analysis is complete
and accurate.
(13) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and any regulatory changes that
will likely occur as a result of the designation of critical habitat.
(14) Whether the draft economic analysis identifies all Federal,
State, and local costs and benefits attributable to the proposed
designation of critical habitat, and information on any costs that may
have been inadvertently overlooked. For example, are there any costs
resulting from critical habitat designation related to the enhancement
or maintenance of nonnative ungulates for hunting programs?
(15) 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.
(15) Specific information on ways to improve the clarity of this
rule as it pertains to completion of consultations under section 7 of
the Act.
Our final determination concerning listing 38 species as endangered
and designating critical habitat for 135 species on the Hawaiian
Islands of Molokai, Lanai, Maui, and Kahoolawe will take into
consideration all written comments and information we receive during
both comment periods, from peer reviewers, and during the public
information meeting, as well as comments and public testimony we
receive during the public hearing. The comments will be included in the
public record for this rulemaking, and we will fully consider them in
the preparation of our final determinations. On the basis of peer
reviewer and public comments, as well as any new information we may
receive, we may, during the development of our final determination
concerning critical habitat, find that areas within the proposed
critical habitat designation do not meet the definition of critical
habitat, that some modifications to the described boundaries are
appropriate, or that areas may or may not be appropriate for exclusion
under section 4(b)(2) of the Act.
If you submitted comments or information on the proposed rule (June
11, 2012; 77 FR 34464) during the comment period from June 11, 2012, to
September 10, 2012 (77 FR 47587), 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
determinations.
You may submit your comments and materials concerning the proposed
rule or draft economic analysis by one of the methods listed in the
ADDRESSES section. Verbal testimony may also be presented during the
public hearing (see DATES and ADDRESSES sections). We will post your
entire comment--including your personal identifying information--on
http://www.regulations.gov. If you submit your comment via U.S. mail,
you may request at the top of your document that we withhold personal
information such as your street address, phone number, or email address
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
[[Page 6787]]
used in preparing the proposed rule and draft economic analysis, will
be available for public inspection on http://www.regulations.gov at
Docket No. FWS-R1-ES-2011-0098 or Docket No. FWS-R1-ES-2013-0003, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
Public Information Meeting and Public Hearing
We are holding a public information meeting and a public hearing on
the date listed in the DATES section at the address listed in the
ADDRESSES section (above). We are holding the public hearing to provide
interested parties an opportunity to present verbal testimony (formal,
oral comments) or written comments regarding the proposed listing or
re-evaluation of the listing of 40 species as endangered and proposed
designation of critical habitat for 135 species on the Hawaiian Islands
of Molokai, Lanai, Maui, and Kahoolawe, and the associated draft
economic analysis. A formal public hearing is not, however, an
opportunity for dialogue with the Service; it is only a forum for
accepting formal verbal testimony. In contrast to the hearing, the
public information meeting will allow the public the opportunity to
interact with Service staff who will be available to provide
information and address questions on the proposed rule and its
associated draft economic analysis. We cannot accept verbal testimony
at the public information meeting; verbal testimony can only be
accepted at the public hearing. Anyone wishing to make an oral
statement at the public hearing for the record is encouraged to provide
a written copy of their statement to us at the hearing. At the public
hearing, formal verbal testimony will be transcribed by a certified
court reporter and will be fully considered in the preparation of our
final determination. In the event there is a large attendance, the time
allotted for oral statements may be limited. Speakers can sign up at
the hearing if they desire to make an oral statement. Oral and written
statements receive equal consideration. There are no limits on the
length of written comments submitted to us.
Persons with disabilities needing reasonable accommodations to
participate in the public information meeting or public hearing should
contact Loyal Mehrhoff, Field Supervisor, Pacific Islands Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Reasonable
accommodation requests should be received at least 3 business days
prior to the public information meeting or public hearing to help
ensure availability; at least 2 weeks prior notice is requested for
American Sign Language needs.
Background
The topics discussed below are relevant to designation of critical
habitat for 135 species on the Hawaiian Islands of Molokai, Lanai,
Maui, and Kahoolawe in this document. For more information on previous
Federal actions concerning these species, refer to the proposed listing
and designation of critical habitat published in the Federal Register
on June 11, 2012 (77 FR 34464), which is available online at http://www.regulations.gov (at Docket Number FWS-R1-ES-2011-0098) or from the
Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Previous Federal Actions
On June 11, 2012, we published a proposed rule (77 FR 34464) to
list 38 species as endangered and designate or revise critical habitat
for 135 plant and animal species. We proposed to designate a total of
271,062 acres (ac) (109,695 hectares (ha)) on the Hawaiian Islands of
Molokai, Lanai, Maui, and Kahoolawe (collectively called Maui Nui) as
critical habitat. Within that proposed rule, we announced a 60-day
comment period, which we subsequently extended for an additional 30
days (77 FR 47587); in total, the comment period began on June 11,
2012, and ended on September 10, 2012. Approximately 47 percent of the
area proposed as critical habitat is already designated as critical
habitat for other species, including 85 plant species for which
critical habitat was designated in 1984 (49 FR 44753; November 9, 1984)
and 2003 (68 FR 1220, January 9, 2003; 68 FR 12982, March 18, 2003; 68
FR 25934, May 14, 2003).
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 unless it is exempted pursuant to the
provisions of the Act (16 U.S.C. 1536(e)-(n) and (p)). 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.
Consistent with the best scientific data available, the standards
of the Act, and our regulations, we have initially identified, for
public comment, a total of 271,062 ac (109,695 ha) in 100 units for the
plants, 44 units for each of the 2 forest birds, 5 units for each of
the Lanai tree snails, and one unit for the Maui tree snail, located on
the Hawaiian Islands of Molokai, Lanai, Maui, and Kahoolawe, that meet
the definition of critical habitat for the 135 plant and animal
species. In addition, the Act provides the Secretary with the
discretion to exclude certain areas from the final designation after
taking into consideration economic impacts, impacts on national
security, and any other relevant impacts of specifying any particular
area as critical habitat.
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. In the
case of the 135 Maui Nui species, the benefits of critical habitat
include public awareness of the presence of one or more of these
species and the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for the species due to
protection from adverse modification or destruction of
[[Page 6788]]
critical habitat. In practice, situations with a Federal nexus exist
primarily on Federal lands or for projects undertaken by Federal
agencies.
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. We also consider
the potential economic impacts that may result from the designation of
critical habitat.
In the proposed rule, we identified several areas to consider
excluding from the final rule. We are considering excluding from the
final designation approximately 40,973 ac (16,582 ha) of private lands
that have a perpetual conservation easement, voluntary conservation
agreement, conservation or watershed preserve designation, or similar
conservation protection.
These specific exclusions will be considered on an individual basis
or in any combination thereof. In addition, the final designation may
not be limited to these exclusions, but may also consider other
exclusions as a result of continuing analysis of relevant
considerations (scientific, economic, and other relevant factors, as
required by the Act) and the public comment process. In particular, we
solicit comments from the public on whether all of the areas identified
meet the definition of critical habitat, whether other areas would meet
that definition, whether to make the specific exclusions we are
considering, and whether there are other areas that are appropriate for
exclusion.
The final decision on whether to exclude any area will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment periods
and information about the economic impact of the designation.
Accordingly, we have prepared a draft economic analysis concerning the
proposed critical habitat designation, which is available for review
and comment (see ADDRESSES section).
Draft Economic Analysis
The purpose of the draft economic analysis (DEA) is to identify and
analyze the potential economic impacts associated with the proposed
critical habitat designation for the 135 Maui Nui species.
The DEA describes the economic impacts of potential conservation
efforts for the 135 Maui Nui species; 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 ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for these 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 135 species. The incremental conservation
efforts and associated impacts are those not expected to occur absent
the designation of critical habitat for these 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 ``without critical habitat'' scenario represents the baseline
for the analysis, and considers the protections already afforded the
Maui Nui species regardless of critical habitat designation. The
baseline for this analysis is the state of regulation, absent
designation of critical habitat that provides protection to the species
under the Act, as well as under other Federal, State, and local laws
and conservation plans. The baseline includes sections 7, 9, and 10 of
the Act to the extent that they are expected to apply absent the
designation of critical habitat for the species. The analysis
qualitatively describes how baseline conservation for the Maui Nui
species is currently implemented across the proposed designation in
order to provide context for the incremental analysis (Chapters 3, 4
and 5 of the DEA). The ``with critical habitat'' scenario describes and
monetizes the incremental impacts due specifically to the designation
of critical habitat for the species. The incremental Maui Nui
conservation efforts and associated impacts are those not expected to
occur absent the designation of critical habitat, and constitute the
potential incremental costs attributed to critical habitat over and
above those baseline costs attributed to listing. For a further
description of the methodology of the analysis, see Chapter 2,
``Framework for the Analysis,'' of the DEA.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
135 Maui Nui species over the next 10 years, which was determined to be
the appropriate period for analysis because limited planning
information is available for most activities to forecast activity
levels for projects beyond a 10-year timeframe. It identifies potential
incremental costs as a result of the proposed critical habitat
designation; these are those costs attributed to critical habitat over
and above those baseline costs attributed to listing. The DEA
separately identifies the potential incremental costs of the critical
habitat designation on lands being considered for exclusion under
section 4(b)(2) of the Act.
In the DEA, we concentrated on the activities of primary concern
with respect to potential adverse modification of critical habitat. The
key concern is the potential for activities to result in ground
disturbance within a critical habitat unit. Such activities include
commercial and residential development, and agricultural (grazing and
farming) activities. In addition, we also evaluated potential impacts
to renewable energy projects, as these projects: (1) Have the potential
to generate ground disturbance; and (2) contribute to the State of
Hawaii's ability to meet its established renewable portfolio standards,
which are mandated by the State. Our analysis therefore focuses on the
following activities:
Residential and commercial development;
Grazing and farming activities; and
Renewable energy developments.
Within these activity categories, we focus our analysis on those
projects and activities that are considered reasonably likely to occur
within the proposed critical habitat area. This includes projects or
activities that are currently planned or proposed, or that permitting
agencies or land managers indicate are likely to occur.
When a species is federally listed as an endangered or threatened
species, it receives protection under the Act. For example, under
section 7 of the Act, Federal agencies must consult with the Service to
ensure that actions they fund, authorize, or carry out do not
jeopardize the continued existence of the species. Economic impacts of
conservation measures undertaken to avoid jeopardy to the species are
considered baseline impacts in our analysis as they are not generated
by the critical habitat designation. In other words, baseline
conservation measures and associated economic impacts are not affected
by decisions related to critical habitat designation for these species.
Other baseline protections accorded listed species under the Act and
other Federal
[[Page 6789]]
and State regulations and programs are described in Chapters 2 through
5 of the DEA.
The only Federal regulatory effect of the designation of critical
habitat is the prohibition on Federal agencies taking actions that are
likely to adversely modify critical habitat. They are not required to
avoid or minimize effects unless the effects rise to the level of
destruction or adverse modification as those terms are used in section
7 of the Act. Even then, the Service must recommend reasonable and
prudent alternatives that can be implemented consistent with the
intended purpose of the action, that are within the scope of the
Federal agency's legal authority and jurisdiction, and that are
economically and technologically feasible. Thus, while the Service may
recommend conservation measures, unless the action is likely to destroy
or adversely modify critical habitat, implementation of recommended
measures is voluntary and Federal agencies and applicants have
discretion in how they carry out their section 7 mandates.
Thus, the direct, incremental impacts of critical habitat
designation stem from the consideration of the potential for
destruction or adverse modification of critical habitat during section
7 consultations. The two categories of direct, incremental impacts of
critical habitat designation are: (1) The administrative costs of
conducting section 7 consultation; and (2) implementation of any
conservation efforts requested by the Service through section 7
consultation, or required by section 7 to prevent the destruction or
adverse modification of critical habitat.
The DEA describes the types of project modifications currently
recommended by the Service to avoid jeopardy to listed plant, forest
bird, and tree snail species (``baseline'' project modifications).
These baseline project modifications would be recommended in occupied
habitat areas regardless of whether critical habitat is designated for
these species. Although the standards for jeopardy and adverse
modification of critical habitat are not the same, because the
degradation or loss of habitat is a key threat to the Maui Nui species,
our jeopardy analyses for these species would already consider the
potential for project modifications to avoid the destruction of
habitat; therefore recommendations to avoid jeopardy would also likely
avoid adverse modification or destruction of critical habitat for these
species. The Service estimates that the only project modification that
may be recommended to avoid adverse modification of critical habitat
above and beyond what would be recommended to avoid jeopardy to the
species would be in cases where permanent impacts to critical habitat
are unavoidable; in such cases, the Service would recommend that
habitat loss be offset elsewhere in designated critical habitat,
preferably within the critical habitat unit where the loss occurred. In
other words, while the Service may recommend that habitat loss be
offset even absent critical habitat designation, critical habitat
designation may generate the additional specification that the offset
occur within the critical habitat unit. In occupied critical habitat,
therefore, the incremental impacts are most likely limited to the
potential incremental cost of offsetting habitat loss within the
critical habitat unit that is affected as opposed to outside of the
unit. In addition, as noted above, any such offsets are not required
unless necessary to avoid violating the prohibition of section 7, but
to be conservative regarding potential incremental costs of the
proposed critical habitat designation, we have assumed that the Federal
agency or applicant may choose to implement the recommended offsets.
With regard to occupied habitat, our analysis finds that, in most
cases, the recommendation that ground disturbance be offset within the
critical habitat unit would not generate additional economic impacts.
For all of the ongoing and currently planned projects we have
identified, conservation measures have been implemented or are
currently being planned to occur within the proposed critical habitat
unit even absent critical habitat designation. This means that for all
recent and currently proposed projects, the Service does not expect to
recommend additional or different conservation measures for the species
due to critical habitat designation, although the effects of each
project on critical habitat would need to be evaluated as appropriate
once a final decision has been made on this designation. In addition,
we are aware of one proposed project that has accrued incremental costs
associated with additional conservation measures implemented in
response to the proposed critical habitat (discussed below).
A number of the proposed critical habitat units are not considered
to be occupied by the species. Where the species are not present at a
project or activity site, section 7 consultations will not consider
jeopardy to the species but will consider the potential for adverse
modification of critical habitat. In much of the unoccupied critical
habitat area, the presence of the Blackburn's sphinx moth (Manduca
blackburni) provides extensive baseline protection that includes
offsetting loss of habitat. Blackburn's sphinx moth was listed as an
endangered species under the Act on February 1, 2000 (65 FR 4770), and
critical habitat was designated for the moth on June 10, 2003 (68 FR
34710). Approximately 42 percent of the proposed critical habitat
designation for the Maui Nui species overlaps with the range of the
Blackburn's sphinx moth. Within this overlapping area, projects and
activities have been subject to section 7 consultation considering the
potential effects on Blackburn's sphinx moth over the last 12 years.
The Service has regularly recommended conservation offsets to ensure
projects and activities avoid jeopardy to the sphinx moth. A number of
the projects identified as occurring within the proposed critical
habitat area for the Maui Nui species have already been subject to
recommendations to incorporate conservation offsets to avoid adversely
affecting the sphinx moth. The native vegetation required by the
Blackburn's sphinx moth is often identical to, or coexists with, the
physical or biological features that are essential to the conservation
of the Maui Nui species. Thus, actions to promote native vegetation
supporting the Blackburn's sphinx moth will also be beneficial in
establishing and providing ecosystems that support plant species
identified as essential elements of the physical or biological features
of critical habitat for the Maui Nui species, and thus would be
adequate to conserve the proposed critical habitat. Therefore, in these
areas of overlap with the range of the Blackburn's sphinx moth, in
general we do not anticipate additional conservation recommendations as
a consequence of critical habitat designation for the Maui Nui species
beyond those already in place for the Blackburn's sphinx moth.
The designation of critical habitat may, under certain
circumstances, affect actions that do not have a Federal nexus and thus
are not subject to the provisions of section 7 under the Act. Indirect
impacts are those unintended changes in economic behavior that may
occur outside of the Act, through other Federal, State, or local
actions, and that are caused by the designation of critical habitat.
Chapter 2 of the DEA discusses the common types of indirect impacts
that may be associated with the designation of critical habitat, such
as time delays, regulatory uncertainty, and negative perceptions
related to critical habitat designation on private property. These
types of impacts are not always
[[Page 6790]]
considered incremental. In the case that these types of conservation
efforts and economic effects are expected to occur regardless of
critical habitat designation, they are appropriately considered
baseline impacts in this analysis.
Critical habitat may generate incremental economic impacts through
implementation of additional conservation measures (beyond those
recommended in the baseline) and additional administrative effort in
section 7 consultation to ensure that projects or activities do not
result in adverse modification of critical habitat. However, as
described above and in Chapter 2 of the DEA, where critical habitat is
considered occupied by the Maui Nui species, critical habitat
designation is expected to have a more limited effect on economic
activities, since section 7 consultation would already occur due to the
presence of the species. Although we recognize that the standards for
jeopardy and adverse modification of critical habitat are not the same,
with the latter focusing more closely on effects to conservation of the
species, in this case and for the reasons described above, the
designation of critical habitat in occupied areas would likely result
only in incremental effects over and above the costs associated with
consultation due to the presence of the species. Furthermore, where
proposed critical habitat overlaps with the probable range of the
endangered Blackburn's sphinx moth, economic activities are already
subject to conservation measures that benefit the Maui Nui species and
their critical habitat. The focus of the DEA is projects that are
reasonably likely to occur, including but not limited to activities
that are currently authorized, permitted, or funded, or for which
proposed plans are currently available to the public. All of the
projects considered reasonably likely to occur in the DEA are in units
that are occupied by the Maui Nui species. Critical habitat designation
is therefore expected to have a limited effect on these areas. The
majority of the proposed critical habitat area is most likely
unsuitable for development, farming, or other economic activities due
to the rugged mountain terrain and remote location. As a result, there
is likely limited overlap between development, grazing and farming
activities, or other economic activities, and proposed critical
habitat.
For all ongoing and currently planned projects identified in the
DEA, conservation offsets have been implemented or are currently being
planned, even absent critical habitat designation, that the Service
believes may also avoid adverse modification, although such projects
would need to be evaluated on a case-by-case basis if and when critical
habitat is designated. Therefore, for most of these projects,
incremental impacts of critical habitat designation are expected to be
limited to the costs of additional administrative effort in section 7
consultations to consider adverse modification, as described in
Chapters 3 and 4 of the DEA. The proposed Honua'ula development, a
master-planned community with residential, commercial, and recreational
uses on the island of Maui, is an exception. The developer, Honua'ula
Partners, LLC, has been working with the Service to develop a habitat
conservation plan (HCP) as part of its application for an incidental
take permit. In the course of developing this HCP, Honua'ula Partners
has implemented some additional conservation measures that are
considered an incremental impact of the proposed critical habitat
designation, as they were not planned prior to the proposed
designation. As a result, the DEA identifies additional costs above and
beyond the additional administrative effort in section 7 consultations
to consider adverse modification for the Honua'ula development. For the
Honua'ula project, the DEA considers the costs of fencing, outplanting,
and additional potentially recommended measures, such as removal of
invasive plant species, as incremental costs associated with the
proposed critical habitat designation.
The DEA monetizes the incremental impacts of critical habitat
designation where sufficient data are readily available. We estimate
that the critical habitat designation would result in a total present
value impact of approximately $100,000 (7 percent discount rate) to
development activities in two proposed units (a total annualized impact
of $20,000 over 10 years). All impacts would likely occur soon after we
adopt a final designation (i.e., in 2013), or are currently occurring.
These impacts are associated with two development projects identified
as likely to occur within the proposed critical habitat area: Advanced
Technology Solar Telescope Expansion at Haleakala Observatories (Maui-
Alpine-Unit 1) and Honua'ula development project in Kihei, Maui (Maui--
Lowland Dry--Unit 3). These impacts reflect additional administrative
effort as part of future section 7 consultation on both projects, and
for the Honua'ula project, additional habitat conservation measures
implemented as a result of proposed critical habitat designation.
In addition, we estimate a total present value impact of $10,000
over the next 10 years across two proposed units (an annualized impact
of approximately $1,000) for consultations regarding energy projects.
Impacts on energy projects in areas being considered for exclusion are
expected to be $5,000 across two proposed units (an annualized impact
of $700). These costs reflect additional administrative effort to
consider critical habitat designation as part of formal consultation on
three proposed energy developments.
The DEA also evaluates potential impacts where data limitations
prevent quantification (``unquantified impacts''). The key category of
unquantified impacts is the potential for a reduction in land value
associated with real or perceived land use restrictions associated with
the designation of critical habitat, in particular on grazing or
farmland. In the case that critical habitat designation directly or
indirectly limits future land use activities (e.g., subdivision), land
values would be reduced by an amount equivalent to the fraction of the
total land value associated with foregone potential future uses.
Lacking information on whether such restrictions may occur, or whether
potential buyers may perceive the potential for such restrictions and
be unwilling to pay as much for land, we are unable to monetize these
impacts. The analysis does, however, qualitatively discuss the
potential for land value impacts and highlights the most vulnerable
proposed units. Specifically, we identify the following categories of
unquantified impacts:
(1) Future development projects. We identified four proposed
critical habitat units that may be subject to future development
pressure based on communication with local planners and stakeholders.
No specific plans exist, however, for development in these units. To
the extent that development is planned, critical habitat designation
may result in recommendations for conservation as described in Chapter
3 of the DEA. Lacking data and information about the likelihood and
characteristics of development, potential impacts are not quantified.
(2) Grazing and Farming. Twenty-three of the proposed critical
habitat units overlap with parcels identified as supporting grazing; 13
of these units include areas being considered for exclusion. Ten of the
proposed critical habitat units overlap with parcels identified as
supporting farming activities; five of these units include areas being
considered for exclusion. While critical habitat is unlikely to
directly affect these activities through
[[Page 6791]]
section 7 consultation, stakeholders are concerned that: (a) The
designation would result in changes in the way that the State or county
manage these lands; and (b) critical habitat would generate
perceptional effects on land values to the extent that potential buyers
expect future economic opportunities on these lands to be restricted in
some way. These potential impacts are not quantified due to substantial
uncertainty regarding their magnitude; they are, however, provided for
consideration regarding potential effects of critical habitat on
farming and grazing, as discussed in Chapter 5 of the DEA.
As we stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, as well as all aspects of the
proposed rule and our amended required determinations. We may revise
the proposed rule or supporting documents to incorporate or address
information we receive during the public comment period. In particular,
we may exclude an area from critical habitat if the Secretary
determines that the benefits of excluding the area outweigh the
benefits of including the area, provided the exclusion will not result
in the extinction of the species.
Required Determinations--Amended
In our June 11, 2012, proposed rule (77 FR 34464), 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 proposed 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), 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 draft economic
analysis data, we are amending our required determinations concerning
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 13211
(Energy, Supply, Distribution, and Use).
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 are certifying that the critical habitat
designation for the 135 Maui Nui species, if adopted as proposed, will
not have a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale.
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 rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities, such as: (1)
Agricultural, commercial, and residential development; (2)
transportation; and (3) livestock grazing and other human activities.
We apply the ``substantial number'' test individually to each industry
to determine if certification is appropriate. However, the SBREFA does
not explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only has regulatory effects on
activities authorized, funded, or carried out by Federal agencies. Some
kinds of activities are unlikely to have any Federal involvement and
will not be affected by critical habitat designation. In areas where
any of the 135 Maui Nui species are present, Federal agencies are
already required to consult with us under section 7 of the Act on
activities they authorize, fund, or carry out that may affect the
species. Federal agencies also must consult with us if their activities
may affect critical habitat. Designation of critical habitat,
therefore, could result in an additional economic impact on small
entities due to the requirement to reinitiate consultation for ongoing
Federal activities (see Application of the ``Adverse Modification''
Standard section of the proposed rule (June 11, 2012; 77 FR 34464)).
In the draft economic analysis, we evaluated the potential economic
effects on small entities resulting from implementation of conservation
actions related to the proposed designation of critical habitat for the
135 Maui Nui species. Quantified incremental impacts that may be borne
by small entities are limited to the administrative costs of section 7
consultation related to residential and commercial development, and
renewable energy development (IEc 2012, Appendix A). These impacts are
relatively limited because relatively few new projects are anticipated
within the proposed critical habitat designation, all areas in which
[[Page 6792]]
such development is considered reasonably likely to occur are occupied
by one or more of the Maui Nui species, and, as described above, the
Service does not expect to recommend additional or different
conservation for the species due to critical habitat designation (IEc
2012, p. 1-8).
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the E.O. regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
In doing so, we focus on the specific areas proposed to be
designated as critical habitat and compare the number of small business
entities potentially affected in that area with other small business
entities in the region, instead of comparing the entities in the
proposed area of designation with entities nationally, which is more
commonly done. This analysis results in an estimation of a higher
number of small businesses potentially affected. In this proposed
rulemaking, we calculate that 0.1 percent of the total small entities
engaged in residential and commercial development may be affected if
and when a final rule becomes effective (IEc 2012, p. A-5). If we were
to calculate that value based on the proportion nationally, then our
estimate would be significantly lower. In addition, potential economic
impacts to small entities are conservatively estimated as 2 percent of
annual revenues for entities in the development industry and less than
0.1 percent of entities in the energy industry (IEc 2012, p. A-8).
Therefore, we conclude that the economic impacts are not significant.
Following our evaluation of potential effects to small business
entities from this proposed rulemaking, we conclude that the number of
potentially affected small businesses is not substantial, and that the
economic impacts are not significant.
Development. Chapter 3 of the DEA discusses the potential for Maui
Nui critical habitat to affect development projects. Our evaluation
applied the following method: (1) Identify currently planned
development activities across the proposed critical habitat area; (2)
identify baseline conservation measures relevant to the identified
projects due to the presence of the Maui Nui species or other listed
species, such as the Blackburn's sphinx moth; (3) determine whether
critical habitat is likely to generate additional conservation
recommendations or otherwise change the scope or scale of the proposed
projects; and (4) quantify the incremental administrative costs of
consultation on the identified projects, and any incremental
conservation efforts. In addition, we considered particular areas in
which no specific plans for projects exist but for which future
development is reasonably likely to occur.
Two development projects are identified as occurring within Maui
Nui proposed critical habitat within the timeframe of the analysis: The
Advanced Technology Solar Telescope expansion and the Honua'ula
project. The two entities undertaking these projects are the University
of Hawaii's Institute for Astronomy and Honua'ula Partners, LLC,
respectively. The University of Hawaii, with total revenues of over
$25.5 million, is not considered a small entity. Honua'ula Partners,
LLC, is a division of Wailea 670 Associates, Inc. Because revenue
information was not readily available for Wailea 670 Associates, Inc.,
we make the conservative assumption that it is a small entity. This one
entity represents 0.1 percent of the total small entities engaged in
residential and commercial development in the proposed critical
habitat. The estimated third party cost to Wailea 670 Associates, Inc.
of participating in the forecast consultation, which is a reinitiation
of an informal consultation, is approximately $125,000 (reflecting both
administrative effort and implementation of conservation
recommendations, as described above). We estimate that this cost
represents approximately 2 percent of the entity's annual revenues,
which we do not consider to be a significant economic impact.
The Honua'ula development project is a proposed master-planned
community in Kihei, Maui, which includes residential, commercial, and
retail mixed uses; on-site recreational amenities; open space; and an
18-hole golf course and related facilities. The proposed project site
consists of 670 acres of land, 170 of which overlap with proposed
critical habitat Maui--Lowland Dry--Unit 3. The Honua'ula project
planning has been underway for over 10 years and has involved State and
Federal agencies and community groups. The developer, Honua'ula
Partners, LLC, has been working with the Service to develop an HCP as
part of its application for an incidental take permit. The draft HCP
considers impacts of the project on Blackburn's sphinx moth and the
n[emacr]n[emacr] (Hawaiian goose, Branta sandvicensis), as well as the
Maui Nui species. The draft HCP includes a variety of conservation
measures, including a 40-acre, on-site conservation easement (``the
Native Plant Preservation Area'') and 354 acres of offsite conservation
easements. Following publication of the proposed critical habitat rule
for the Maui Nui species, the Service reviewed the draft HCP with
respect to potential adverse effects on critical habitat. Specifically,
because the project is expected to result in the loss of 119.5 acres of
lowland dry critical habitat, the Service recommended that Honua'ula
Partners:
(1) Increase habitat offsets by 35 acres within lowland dry
proposed critical habitat. Prior to the proposed rule, the Service had
recommended offsetting habitat loss at a 2:1 ratio. As a result of
proposed critical habitat, the Service recommended that the offsets
occur within lowland dry critical habitat (although it did not
recommend an increase in the 2:1 ratio). While the 394 acres of
conservation easements exceeded the Service's suggested offset ratio, a
portion of the planned offset area falls outside of lowland dry
critical habitat, generating a recommendation from the Service to
increase the area that is being conserved in lowland dry proposed
critical habitat by 35 acres.
[[Page 6793]]
(2) Increase outplanting efforts for 10 of the species for which
Maui--Lowland Dry--Unit 3 is proposed to conserve.
In response to these recommendations, Honua'ula Partners is
undertaking the following additional measures. We consider the costs of
these measures as incremental impacts of the critical habitat
designation, as they were not planned prior to the proposed
designation: (1) Honua'ula Partners will provide an additional $125,000
to contribute to a fencing project on 35 acres of land within lowland
dry critical habitat, and perform fence maintenance through the permit
period; and (2) Honua'ula Partners will include in their outplanting
efforts nine plant species for which Maui Lowland Dry 03 is proposed to
conserve (in addition to the awikiwiki (Canavalia pubescens), which was
already included in the outplanting effort prior to the proposed
critical habitat designation). According to Honua'ula Partners, this
measure will not result in any additional cost. In addition, Honua'ula
Partners noted that the Service made additional recommendations
regarding fire break measures, invasive plant species removal, and the
extent of nonnative species cover.
In addition to the $125,000 cost associated with the implementation
of these conservation measures for the Honua'ula project, we expect
that there would be a reinitiated informal section 7 consultation in
2013 (following critical habitat designation) to consider adverse
modification of critical habitat. The total incremental administrative
costs associated with this section 7 consultation are estimated to be
$5,000.
Renewable Energy Development. Chapter 4 of the DEA discusses the
potential for Maui Nui critical habitat designation to affect renewable
energy development activities. Our evaluation applied the following
method: (1) Identify currently planned energy projects across the
proposed critical habitat area; (2) identify baseline regulations of
energy developments that provide conservation protection to the Maui
Nui species within the proposed critical habitat area; (3) determine
whether critical habitat would be likely to generate additional
conservation recommendations or otherwise change the scope or scale of
the proposed projects; and (4) quantify the incremental administrative
costs of consultation on the identified projects, and any incremental
conservation efforts.
Overall, three projects are forecast to occur within Maui Nui
proposed critical habitat during the timeframe of the analysis. The
Service anticipates consultation on all of these projects, but, as
detailed below, we do not expect critical habitat designation would
generate recommendations for additional conservation measures
associated with these projects. The entities undertaking these projects
are: (1) Molokai Renewables, LLC, a joint venture between Pattern
Energy Group LP and Bio-Logical Capital, LLC; (2) Castle & Cooke
Resorts, LLC; and (3) ORMAT Technologies, Inc. With revenues in the
hundreds of millions of dollars annually, ORMAT Technologies, Inc., is
not considered to be a small entity. Revenue information was not
available for the other two entities undertaking energy projects. We
therefore make the conservative assumption that these two entities are
small. The per-entity cost to participate in the consultation is
approximately $1,000 on an annualized basis, as described below. We
estimate that this cost represents less than 0.1 percent of annual
revenues, which we do not consider to be a significant economic impact.
Here we detail our analysis of these three anticipated energy projects.
The Molokai Renewables Wind Project (MRWP) is a wind energy project
in the early planning stages, located on the island of Molokai.
Construction for the project is not expected to begin until 2018. The
developer, Pattern Energy, LLC, is proposing to construct wind
turbines, access roads, a high voltage DC converter station, and
transmission cables on lands owned by Molokai Ranch. While the exact
location and extent of ground disturbance related to the project is
uncertain at this time, it is expected that turbines, access roads, and
the converter station will be located north of proposed Molokai--
Lowland Dry--Unit 1 and inland from proposed Molokai--Coastal--Unit 1,
but will not occur within the proposed units themselves. Several
potential alternative locations are being considered for the
transmission cable, which will transmit electricity produced on Molokai
to Oahu, including one route near, but not overlapping, proposed
Molokai--Coastal--Unit 2. Although current plans for the MRWP do not
overlap Maui Nui proposed critical habitat, siting of the MRWP is in
the early planning stages and is highly uncertain, and the potential
for overlap exists. However, in conversations with Pattern Energy
regarding potential economic impacts to the MRWP, representatives from
the company indicated that they expect minimal effects of the proposed
critical habitat on the siting of their project, including cabling
operations. According to the firm, any potential MRWP facilities
located in proposed critical habitat would be relocated to avoid
impacts to critical habitat with no increase in the price or production
cost of energy (i.e., no quantifiable economic impacts). In addition,
as described above, even absent critical habitat designation, the
Hawaii Clean Energy Programmatic Environmental Impact Statement
provides strong baseline regulatory protections, requiring that energy
projects avoid effects on listed species and their habitats.
Accordingly, we do not anticipate incremental project modifications
related to the MRWP, and the effects of critical habitat would be
limited to incremental administrative effort as part of a future formal
section 7 consultation on this project.
Castle & Cooke is proposing to install approximately 67 wind
turbines on lands owned by Lanai Resorts, LLC, on the northwest portion
of Lanai. The Lanai Wind Project (LWP) would generate wind energy to be
transmitted to Oahu by undersea cable. The wind turbines would span a
total area of approximately 7,000 acres, including five turbines and
access roads on a small portion of proposed Lanai--Lowland Mesic--Unit
1. As the LWP is currently in early planning stages, the exact
locations of structures and access roads generating ground disturbance
remain uncertain. It is unlikely, however, that the project would be
subject to additional conservation due to the critical habitat
designation because Castle & Cooke have indicated that the project will
have a very limited physical footprint and only affect poor quality
habitat. Castle & Cooke suggest the area that they are planning for
construction of this project is unlikely to contain the physical and
biological features of critical habitat for the Maui Nui species due to
the existing level of degradation. In addition, they suggest the level
of ground disturbance associated with the project will be limited as
all access roads associated with the LWP will be located on existing
roadways. In the Service's experience, habitat impacts from the
installation of wind turbines are, in general, minor, due to the
limited project footprint of a wind turbine tower. However, even in the
case that the level of ground disturbance constitutes adverse
modification, the project would already be subject to considerable
conservation measures as identified by the Hawaii Clean Energy
Programmatic Environmental Impact Statement (PEIS). It is therefore
likely the project would avoid adverse modification of Maui Nui
critical habitat even absent a designation. The DEA
[[Page 6794]]
therefore expects that the effects of critical habitat would be limited
to incremental administrative effort as part of a future formal section
7 consultation on this project.
ORMAT Technologies, Inc., based in Nevada, is a geothermal power
plant developer. ORMAT has filed an EIS Preparation Notice (EISPN)
related to the Ulupalakua Geothermal Project (UGP) located on
Ulupalakua Ranch and State-owned lands adjacent to Ulupalakua Ranch on
the southern tip of Maui. The UGP received Department of Energy (DOE)
funding for this project. According to the action area described in the
EISPN for Ulupalakua Geothermal Mining Lease, it is likely that only
portions of the currently operational ``Geothermal Resource Subzone''
(GRS) overlap proposed critical habitat. The extent to which the
project may affect critical habitat is therefore uncertain.
Furthermore, as described in the June 11, 2012, proposed rule (77 FR
34464), Ulupalakua Ranch lands are identified for potential exclusion
from critical habitat due to the existing management of the land. For
the reasons discussed above for the LWP, it is most likely that the UGP
will avoid impacts that would amount to adverse modification of
critical habitat for the Maui Nui species, even absent a designation.
This is due to the limited overlap of the project with the proposed
critical habitat area, and the expected management of these projects as
described by the PEIS. According to the PEIS, the DOE intends to avoid
impacts of renewable energy projects on listed species and habitats
even absent critical habitat designation. The DEA therefore expects
that the effects of critical habitat will be limited to incremental
administrative effort as part of a future formal section 7 consultation
on this project.
To calculate administrative costs, we multiplied the expected
number of consultations in each unit by estimated per-consultation
administrative costs. As all three energy projects have entered the
permitting process, the analysis assumes that each project would be
required to consult the Service if and when critical habitat is
finalized (in 2013). Overall, the DEA finds that total present value
impacts to energy projects in areas proposed for critical habitat
designation amount to $10,000 over the next 10 years (or $1,000 on an
annualized basis). Impacts on energy projects in areas identified for
potential exclusion are expected to be $5,000 (present value). The
relatively low level of impact on energy projects reflects two factors:
(1) The limited number of future projects identified within or
affecting the proposed critical habitat area; and (2) the likely
substantial level of conservation incorporated into future energy
projects even absent a Maui Nui critical habitat designation.
As the number of renewable energy development projects is growing
in Hawaii, additional businesses may be subject to consultation if and
when we finalize Maui Nui critical habitat. As described above,
however, we expect the estimated $1,000 incremental cost to be a small
fraction of annual revenues for these businesses. The field of
renewable energy development within the areas proposed as critical
habitat for the 135 Maui Nui species is evolving, and uncertainty
exists concerning the scope of companies that may engage in these
activities. Therefore, the relative percentage of the small business
entities engaged in these activities is uncertain and speculative.
However, the costs that these two identified companies would incur
represent less than 0.1 percent of annual revenues, which we do not
consider to be a significant economic impact.
In summary, we have considered whether this proposed designation,
if finalized as proposed, will result in a significant economic impact
on a substantial number of small entities and the energy industry.
Information for this analysis was gathered from the SBA, stakeholders,
and Service files. We determined that 0.1 percent of the small entities
may be affected if and when this final rule becomes effective (IEc
2012, p. A-5), and we do not consider this to be a substantial number
of small entities. Furthermore, we determined that the economic impacts
to small businesses are estimated at less than 2 percent of annual
revenues for development businesses and less than 0.1 percent of annual
revenues for energy businesses (IEc 2012, p. A-8), which we do not
consider to be significant economic impacts. Therefore, we are
certifying that the designation of critical habitat for the 135 Maui
Nui species will not have a significant economic impact on a
substantial number of small entities, and an initial regulatory
flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
In Chapter 4 of the DEA, renewable energy projects, including wind
and geothermal developments, that are planned within the timeframe of
the analysis are expected to be subject to section 7 consultation
considering potential effects on proposed critical habitat for the Maui
Nui species. This analysis concludes that impacts of a critical habitat
designation on these activities would be most likely limited to
additional administrative costs of section 7 consultation.
Consequently, reductions in oil and natural gas production are not
anticipated and administrative consultation costs ($900 per
consultation) are not anticipated to reduce energy production or
increase the cost of energy production or distribution in the United
States in excess of 1 percent. As such, the designation of critical
habitat is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Authors
The primary authors of this notice are the staff members of the
Pacific Islands Fish and Wildlife Office, Pacific Region, U.S. Fish and
Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: January 23, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2013-02002 Filed 1-30-13; 8:45 am]
BILLING CODE 4310-55-P