[Federal Register: January 24, 2005 (Volume 70, Number 14)]

[Rules and Regulations]               

[Page 3437-3461]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr24ja05-8]                         





[[Page 3437]]



-----------------------------------------------------------------------



Part II











Department of the Interior











-----------------------------------------------------------------------







Fish and Wildlife Service







-----------------------------------------------------------------------







50 CFR Part 17







Endangered and Threatened Wildlife and Plants; Final Rule To Designate 

Critical Habitat for the Buena Vista Lake Shrew (Sorex ornatus 

relictus); Final Rule





[[Page 3438]]





-----------------------------------------------------------------------



DEPARTMENT OF THE INTERIOR



Fish and Wildlife Service



50 CFR Part 17



RIN 1018-AT66



 

Endangered and Threatened Wildlife and Plants; Final Rule To 

Designate Critical Habitat for the Buena Vista Lake Shrew (Sorex 

ornatus relictus)



AGENCY: Fish and Wildlife Service, Interior.



ACTION: Final rule.



-----------------------------------------------------------------------



SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 

critical habitat for the Buena Vista Lake shrew (Sorex ornatus 

relictus) (referred to here as the shrew) pursuant to the Endangered 

Species Act of 1973, as amended (Act). In total, approximately 84 acres 

(ac) (34 hectares (ha)) occur within the boundaries of the critical 

habitat designation. The critical habitat is located in the Central 

Valley floor of Kern County, California.



DATES: This final rule is effective February 23, 2005.



ADDRESSES: Comments and materials received, as well as supporting 

documentation used in the preparation of this final rule, will be 

available for public inspection, by appointment, during normal business 

hours at the Sacramento Fish and Wildlife Office, U.S. Fish and 

Wildlife Service, 2800 Cottage Way, W-2605, Sacramento, California 

95825 (telephone 916-414-6600).



FOR FURTHER INFORMATION CONTACT: Shannon Holbrook or Arnold Roessler, 

Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605 

Sacramento, California, (telephone 916-414-6600; facsimile 916-414-

6712).



SUPPLEMENTARY INFORMATION:



Designation of Critical Habitat Provides Little Additional Protection 

to the Species



    In 30 years of implementing the Act, the Service has found that the 

designation of statutory critical habitat provides little additional 

protection to most listed species, while consuming significant amounts 

of available conservation resources. The Service's present system for 

designating critical habitat has evolved since its original statutory 

prescription into a process that provides little real conservation 

benefit, is driven by litigation and the courts rather than biology, 

limits our ability to fully evaluate the science involved, consumes 

enormous agency resources, and imposes huge social and economic costs. 

The Service believes that additional agency discretion would allow our 

focus to return to those actions that provide the greatest benefit to 

the species most in need of protection.



Role of Critical Habitat in Actual Practice of Administering and 

Implementing the Act



    While attention to and protection of habitat is paramount to 

successful conservation actions, we have consistently found that, in 

most circumstances, the designation of critical habitat is of little 

additional value for most listed species, yet it consumes large amounts 

of conservation resources. Sidle (1987) stated, ``Because the Act can 

protect species with and without critical habitat designation, critical 

habitat designation may be redundant to the other consultation 

requirements of section 7.'' Currently, only 468 species or 37 percent 

of the 1,256 listed species in the United States under our jurisdiction 

have designated critical habitat. We address the habitat needs of all 

1,256 listed species through conservation mechanisms such as listing, 

section 7 consultations, the Section 4 recovery planning process, the 

Section 9 protective prohibitions of unauthorized take, Section 6 

funding to the States, and the Section 10 incidental take permit 

process. We believe that it is these measures that may make the 

difference between extinction and survival for many species.

    We note, however, that a recent 9th Circuit judicial opinion, 

Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 

has invalidated the Service's regulation defining destruction or 

adverse modification of critical habitat. We are currently reviewing 

the decision to determine what effect it may have on the outcome of 

consultations pursuant to Section 7 of the Act.



Procedural and Resource Difficulties in Designating Critical Habitat



    We have been inundated with lawsuits for our failure to designate 

critical habitat, and we face a growing number of lawsuits challenging 

critical habitat determinations once they are made. These lawsuits have 

subjected the Service to an ever-increasing series of court orders and 

court-approved settlement agreements, compliance with which now 

consumes nearly the entire listing program budget. This leaves the 

Service with little ability to prioritize its activities to direct 

scarce listing resources to the listing program actions with the most 

biologically urgent species conservation needs.

    The consequence of the critical habitat litigation activity is that 

limited listing funds are used to defend active lawsuits, to respond to 

Notices of Intent (NOIs) to sue relative to critical habitat, and to 

comply with the growing number of adverse court orders. As a result of 

this consequence, listing petition responses, the Service's own 

proposals to list critically imperiled species and final listing 

determinations on existing proposals are all significantly delayed.

    The accelerated schedules of court ordered designations have left 

the Service with almost no ability to provide for adequate public 

participation or to ensure a defect-free rulemaking process before 

making decisions on listing and critical habitat proposals due to the 

risks associated with noncompliance with judicially imposed deadlines. 

This situation in turn fosters a second round of litigation in which 

those who fear adverse impacts from critical habitat designations 

challenge those designations. The cycle of litigation appears endless, 

is very expensive, and in the final analysis provides relatively little 

additional protection to listed species.

    The costs associated with the critical habitat designation process 

include legal costs, the costs of preparation and publication of the 

designation, the analysis of the economic effects and the costs of 

requesting and responding to public comments, and, in some cases, the 

costs of compliance with National Environmental Policy Act. None of 

these costs result in any benefit to the species that is not already 

afforded by the protections of the Act enumerated earlier, and these 

associated costs directly reduce the scarce funds available for direct 

and tangible conservation actions.



Background



    For background information, please see the proposed designation of 

critical habitat for the Buena Vista Lake shrew published on August 19, 

2004 (69 FR 51417). That information is incorporated by reference into 

this final rule.



Previous Federal Actions



    A final rule listing the shrew as endangered was published in the 

Federal Register on March 6, 2002 (67 FR 10101). Please refer to the 

final rule listing the shrew for information on previous Federal 

actions prior to March 6, 2002. On January 12, 2004, the United States 

District Court for the Eastern District of California issued a 

Memorandum Opinion and Order (Kern County Farm Bureau et al. v. Anne



[[Page 3439]]



Badgley, Regional Director of the United States Fish and Wildlife 

Service, Region 1 et al., CV F 02-5376 AWIDLB). The order required the 

Service to publish a proposed critical habitat determination (also 

known as a proposed rule) for the shrew no later than July 12, 2004, 

and a final determination no later than January 12, 2005. On July 8, 

2004, the court extended the deadline for submitting the proposed rule 

to the Federal Register to August 13, 2004.

    On August 19, 2004 (69 FR 51417), we published a proposed critical 

habitat designation for the Buena Vista Lake shrew. Publication of this 

proposed rule opened a 60-day public comment period, which closed on 

October 18, 2004. On September 16, 2004, we announced via local news 

media and publications that a public hearing was to be held on 

September 30, 2004, in Bakersfield, California. At the public hearing, 

approximately 10 members of the public provided or presented 

information and comments on the proposed critical habitat designation. 

On November 30, 2004, we published a notice announcing the availability 

of our draft economic analysis (DEA) of the proposed critical habitat 

designation (69 FR 69578). The notice opened a 15-day public comment 

period on the DEA, extended the comment period on the proposed critical 

habitat designation, and closed on December 15, 2004.



Summary of Comments and Recommendations



    We contacted appropriate Federal, State, and local agencies, 

scientific organizations, and other interested parties and invited them 

to comment on the proposed critical habitat designation for the Buena 

Vista Lake shrew. In addition, we invited public comment through the 

publication of a notice in the Bakersfield Californian on September 16, 

2004.

    In the August 19, 2004, proposed critical habitat designation (69 

FR 51417), we requested that all interested parties submit comments on 

the specifics of the proposal, including information related to the 

critical habitat designation, unit boundaries, species occurrence 

information and distribution, land use designations that may affect 

critical habitat, potential economic effects of the proposed 

designation, benefits associated with the critical habitat designation, 

potential exclusions and the associated rationale for the exclusions, 

and methods used to designate critical habitat. We also contacted all 

appropriate Federal, State, and local agencies, scientific 

organizations, and other interested parties and invited them to 

comment. This was accomplished through letters and news releases mailed 

to affected elected officials, media outlets, local jurisdictions, 

interest groups, and other interested individuals. In addition, we 

invited public comment through the publication of legal notices in 

newspapers throughout Kern County.

    We provided notification of the draft economic analysis (DEA) 

through postcards, letters, and news releases faxed and/or mailed to 

affected elected officials, media outlets, local jurisdictions, and 

interest groups. We published a notice of its availability in the 

Federal Register and made the DEA and associated material available on 

our Sacramento Fish and Wildlife Office Internet site on November 30, 

2004 (69 FR 69578).

    We received a total of 16 comment letters and electronic mail 

correspondences (e-mails) during the comment periods. We reviewed all 

comments received for substantive issues and new information regarding 

the Buena Vista Lake shrew. We grouped similar public comments into six 

general issue categories relating specifically to the proposed critical 

habitat determination and/or the DEA. Substantive comments and 

accompanying information have either been incorporated directly into 

the final rule or final economic analysis documents, and/or they have 

been addressed in the following summary.



Peer Review



    In accordance with our joint policy published in the Federal 

Register on July 1, 1994 (59 FR 34270), we solicited review from at 

least three appropriate and independent specialists/experts regarding 

the proposed rule. The purpose of such review is to ensure that our 

critical habitat designation is based on scientifically sound data, 

assumptions, and analyses.

    We solicited peer review from 5 individuals who have detailed 

knowledge of and expertise in either mammalian biology in general, or 

shrew biology specifically, as well as scientific principles and 

conservation biology. The individuals were asked to review and comment 

on the specific assumptions and conclusions regarding the proposed 

designation of critical habitat. Two of the five reviewers submitted 

comments on the proposed designation.

    Peer Comment (1): One peer reviewer felt the proposed critical 

habitat designation incorporated the most up to date information on the 

biology of the shrew and the issues of range, distribution, and life 

history requirements of the shrew. This peer reviewer questioned 

whether connectivity of habitat fragments had been considered in 

preparation of the proposed rule. Both reviewers stated that shrews, 

that were possibly the Buena Vista Lake shrew, have been captured at 

the Atwell Island Land Retirement Demonstration project site: both 

reviewers questioned why this area was not included in the proposed 

critical habitat designation.

    Our Response (1): Although we agree that preserving connectivity 

between known occupied locations is important for the conservation of 

the Buena Vista Lake shrew, we do not believe that unoccupied and 

historical locations are essential for the conservation of the species. 

The Recovery Plan for Upland Species of the San Joaquin Valley 

(Recovery Plan) determined that the Buena Vista Lake shrew could be 

conserved by protection of habitat in three or more disjunct occupied 

conservation areas, excluding unoccupied and/or historical locations. 

All units that were described in the Recovery Plan were analyzed to 

determine if the areas exhibited the physical and biological features 

that are essential to the conservation of the shrew and would require 

special management. We have determined that the areas or units that we 

have proposed to designate as critical habitat, based on our analysis 

of the best available scientific and commercial data, provide for the 

essential lifecycle needs of the species, and provide the habitat 

components essential for the conservation of this species (i.e., the 

primary constituent elements (PCEs) described below in the Primary 

Constituent Elements section). Therefore, we do not believe that it is 

necessary for the conservation of the Buena Vista Lake shrew to 

designate critical habitat in unoccupied areas or areas that do not 

exhibit the primary constituent elements essential for the conservation 

of the species.



State and Federal Agency or Tribal Comments



    We did not receive any comments regarding the proposed critical 

habitat designation from any State, Federal or Tribal entity.



Other Public Comments and Responses



    We address other substantive comments and accompanying information 

in the following summary. Any changes and/or reference updates 

suggested by commenters have been incorporated into this final rule or 

the final economic analysis, as appropriate.



[[Page 3440]]



Issue 1--Habitat- and Species-Specific Information



    Comment (1): Several commenters stated that we have not adequately 

established that all the areas identified as critical habitat do in 

fact contain the Primary Constituent Elements (PCEs) essential for the 

conservation of the species and that the proposed designation fails to 

narrowly define those areas that have the PCEs. These commenters also 

stated they wanted excluded from designation those areas that did not 

contain the PCEs for the shrew. These comments were directed towards 

roads, pump sites, maintained canals, and other areas devoid of 

vegetation within the designation. One commenter expressed concern that 

there was no comprehensive biological study utilizing uniform 

assumptions of analysis for all five units.

    Our Response (1): We used the best scientific and commercial data 

available to us at the time in determining which areas proposed as 

critical habitat are essential for the shrew. In our final 

determination, we used additional information available to us, 

including detailed aerial imagery and other information provided by 

commenters to assist us in refining our mapping of essential habitat. 

After refining our proposal by removing additional nonhabitat and other 

nonessential areas such as roads, pump sites, maintained canals, and 

other areas devoid of vegetation, and considering the best available 

information, we conclude that the areas designated by this final rule, 

including currently occupied areas, are essential for the conservation 

of the species. In our development of the proposed designation, we 

utilized certain specific conservation criteria of protecting a variety 

of habitats, protecting suitable habitat across the range of the 

species, and protecting habitats essential for the maintenance and 

growth of self-sustaining populations in establishing the areas of 

critical habitat. This strategy was also used in the development of the 

final designation.

    Comment (2): One commenter suggested that there would be an 

increase in siltation and debris accumulation in channels and that this 

would increase maintenance burdens of water districts if there was a 

restriction in channel use due to the critical habitat designation.

    Our Response (2): In our final determination, we have additional 

information available to us, including detailed aerial imagery and 

other information provided by commenters to assist us in refining our 

mapping of essential habitat. We have determined that channels, because 

they lack the PCEs, do not provide habitat for the shrews. Therefore, 

channel areas have been removed from the critical habitat boundaries. 

Therefore, no restrictions of use or modifications to channel 

operations will be imposed due to critical habitat designation.

    Comment (3): One commenter stated that the final rule should 

recognize all cumulative impacts to the shrew occurring in the area.

    Our Response (3): In accordance with Section 4(b) of the Endangered 

Species Act, the regulations state that the Secretary shall determine 

whether a species is an endangered species or a threatened species 

because of any of the following factors: (1) The present or threatened 

destruction, modification, or curtailment of its habitat or range, (2) 

overutilization for commercial, recreational, scientific, or 

educational purposes, (3) disease or predation, (4) the inadequacy of 

existing regulatory mechanisms, and (5) other natural or manmade 

factors affecting its continued existence. As a result of this 

analysis, the Buena Vista Lake shrew was listed as endangered on March 

6, 2002 (67 FR 10101). The recognition of ``cumulative impacts'' or 

threats is part of the process of listing a species and not part of the 

designation of critical habitat.

    Comment (4): One commenter stated that the final rule should 

reflect a commitment to monitoring or improved data collection for the 

threat of selenium contamination.

    Our Response (4): Critical habitat identifies those areas which 

contain the physical and biological features that are essential to the 

conservation of the species and those areas that may require special 

management considerations or protections. Critical habitat designation 

is not intended to be a management plan for a specific area. Any 

monitoring or special management actions can be developed through 

consultation or management agreements through partnerships with 

Federal, State, local or private groups.



Issue 2--Costs and Regulatory Burden



    Comment (5): Several commenters stated that the Service needs to 

clarify the proposed rule to allow the public to understand what 

activities will be limited at each proposed unit. These commenters 

expressed concern that critical habitat designation would limit their 

land use practices. Specifically, several commenters stated concern 

over West Nile virus and whether mosquito abatement procedures would be 

allowed in areas and boundaries of those areas designated as critical 

habitat. Several commenters were concerned over ability of the city to 

provide adequate drinking water supplies if groundwater recharge 

practices were restricted. Several commenters were concerned that 

critical habitat designation will adversely affect farming operations, 

interrupt water supplies, and cause degradation of surrounding 

farmland. One commenter states that critical habitat designation has 

potential to adversely affect water management activities such as 

irrigation, municipal purposes, and flood management. One commenter 

asks if critical habitat will affect how the County administers FEMA 

regulations.

    Our Response (5): All Federal agencies are required to evaluate 

whether projects they authorize, fund, or carry out may adversely 

affect a federally listed species and/or its designated critical 

habitat. If projects with a federal nexus are not likely to adversely 

affect critical habitat, then a consultation with us would not be 

necessary. For projects that are likely to have only discountable, 

insignificant, or wholly beneficial effects on critical habitat, we 

would concur in writing and no further consultation will be necessary. 

For projects likely to have adverse affects on critical habitat, formal 

consultation would be required pursuant to Section 7 of the Act.

    Only those activities federally funded or authorized that may 

affect critical habitat would be subject to the regulations pertaining 

to critical habitat. Since all of the Buena Vista Lake shrew habitat 

within the designation is occupied by the listed Buena Vista Lake shrew 

and occurs on privately owned lands, the designation of critical 

habitat is not likely to result in a significant increase in regulatory 

requirements above those already in place due to the presence of the 

listed species.

    Buena Vista Lake shrews have been found within areas of proposed 

critical habitat where these intricate water banking and management 

operations are in place. We recognize and acknowledge that certain 

water banking and water management practices likely have no impacts on 

the Buena Vista Lake shrew and may in fact be beneficial for 

maintaining them.

    While the designation of critical habitat does not constitute a 

regulation on private lands, the Federal listing of the Buena Vista 

Lake shrew under the Endangered Species Act may affect private 

landowners. Private actions which could result in take of Buena Vista 

Lake shrew (e.g., ground disturbing activities) require an exemption 

from take following consultation under Section 7 or an



[[Page 3441]]



incidental take permit under section 10 of the Act. Because the Buena 

Vista Lake shrew was listed in 2002, proposed actions on private lands 

that require Federal authorization or funding that may affect the 

species already undergo consultation under Section 7 to ensure that 

their actions are not likely to jeopardize the continued existence of 

the species. Future consultations involving private lands will also 

analyze the effect of the proposed action on designated critical 

habitat.

    The Act also requires recovery planning for listed species. 

Recovery planning for Buena Vista Lake shrew may include 

recommendations for land acquisition or easements involving private 

landowners. These efforts would be undertaken with the cooperation of 

the landowners. We also work with landowners to identify activities and 

modifications to activities that will not result in take, to develop 

measures to minimize the potential for take, and to provide 

authorizations for take through section 7 and 10 of the Act. We 

encourage landowners to work in partnership with us to develop plans 

for ensuring that land uses can be carried out in a manner consistent 

with the conservation of listed species.

    Comment (6): One commenter stated there would be economic impacts 

if water deliveries to Buena Vista Lake Recreation Area were altered. 

One commenter feels that critical habitat will cause substantial 

financial burden if changes in structures or abilities to manage for 

irrigation and floodwater or banking operations are required. One 

commenter stated that the Critical habitat designation should be 

limited to those areas that are already reserved for habitat purposes 

to minimize economic impact. One commenter stated that the Service must 

quantify economic impacts and consider cumulative impacts of the 

proposed rule.

    Our Response (6): We made a draft economic analysis (DEA) available 

for public comment for the Buena Vista Lake shrew on November 30, 2004, 

and accepted comments on the DEA from that date through December 15, 

2004 (69 FR 69578). These comments will be considered in the final EA.

    We did not propose to designate as critical habitat the Buena Vista 

Lake Recreation Area. Furthermore, based on our economic analysis, we 

do not anticipate a substantial financial burden in the area that we 

are designating. The annualized economic effects of this designation 

are estimated to be $8,752 to $12,932, based on the economic analysis 

for Kern Lake only, as all the other units were excluded from 

designation.

    Comment (7): Several commenters stated that there should be 

allowances for continued operation, maintenance, repair, and 

replacement of existing facilities.

    Our Response (7): Critical habitat designations do not prevent the 

normal operation, maintenance, repair, or replacement of existing 

facilities. However, any action that would result in the take of a 

federally listed species (e.g., ground disturbing activities), would 

require a Federal permit under section 7 or section 10 of the Act. 

Consultation on critical habitat is only triggered when there is a 

Federal nexus (action carried out, funded, or authorized by a Federal 

agency). Even if there is a Federal nexus, consultation would not be 

triggered unless the PCEs are present in the action area. Where 

possible, existing facilities, such as the ones referred to in the 

comment, have been excluded from critical habitat designation. Due to 

the mapping scale utilized in the rule, it was not possible to remove 

all areas that do not exhibit the PCEs for the species. Nonetheless, 

critical habitat does not include man-made structures and not 

containing one or more of the PCEs, such as buildings, aqueducts, 

airports, and roads, and the land on which such structures are located. 

If these areas do not exhibit the PCEs, and/or there is no Federal 

nexus, the owners of the facilities would not have regulatory 

responsibilities due to critical habitat.



Issue 3--Property Rights



    Comment (8): Several commenters were concerned that designation of 

critical habitat would affect flood control and water supply to 

Bakersfield and surrounding communities. They stated the designation 

could adversely affect agricultural production and urban water 

districts if water deliveries are restricted or restrictive management 

practices are imposed.

    Our Response (8): Critical habitat designations do not constitute a 

burden in terms of Federal laws and regulations on private landowners 

carrying out privately funded activities. Unless a Federal nexus exists 

for a project proposed on private property, the critical habitat 

designation poses no regulatory burden for private landowners and 

similarly should not interfere with future land use plans. Therefore, 

we do not believe that this designation will deny ranchers and farmers 

use of their land. We have also determined that channels such as water 

delivery canals do not provide habitat for the shrews due to lack of 

the primary constituent elements, and we have removed them from the 

critical habitat boundaries. Therefore, we do not anticipate 

restrictions of use or modifications to water deliveries to be imposed 

due to critical habitat designation.

    While the designation of critical habitat does not typically result 

in regulation on private lands, the Federal listing of the Buena Vista 

Lake shrew under the Endangered Species Act may affect private 

landowners. Actions which could result in take of Buena Vista Lake 

shrew (e.g., ground disturbing activities) require a Federal permit 

under section 7 or section 10 of the Act. Because the Buena Vista Lake 

shrew was listed in 2002, Federal agencies already consult with us on 

activities in areas currently occupied by the species or, if the 

species may be affected by an action, to ensure that their action does 

not jeopardize the continued existence of the species.

    Comment (9): One commenter asks if restrictive critical habitat 

management practices imposed on federal agencies or private property 

owners seeking federal permits increase mitigation costs, property 

damage, or raise public safety issues involving the maintenance of 

flood-carrying capacity for the affected water conveyance facilities.

    Our Response (9): Critical habitat identifies those areas which 

contain the physical and biological features that are essential to the 

conservation of the species and those areas that may require special 

management considerations or protections. Critical habitat designation 

is not intended to be a management plan for a specific area. Any 

monitoring or special management practices can be developed through 

Section 7 or Section 10 of the Act. Based on previous consultations, 

there have been no restrictive management practices required that have 

resulted in increased mitigation costs, property damage, or have raised 

public safety issues. Nor do we anticipate, based on the economic 

analysis, in the future restrictive management practices that will 

increase mitigation costs, property damage or public safety issues.

    Comment (10): Several commenters stated that areas that are subject 

to a management regime that supports the shrew should be excluded from 

designation.

    Our Response (10): We exclude areas with management regimes from 

designation if a current plan provides adequate management or 

protection and meets three criteria: (1) The plan is complete and 

provides a conservation benefit to the species (i.e., the plan must 

maintain or provide for an increase in the species' population, or the 

enhancement or restoration of its habitat



[[Page 3442]]



within the area covered by the plan); (2) the plan provides assurances 

that the conservation management strategies and actions will be 

implemented (i.e., those responsible for implementing the plan are 

capable of accomplishing the objectives, have an implementation 

schedule, and adequate funding for implementing the management plan); 

and (3) the plan provides assurances that the conservation strategies 

and measures will be effective (i.e., it identifies biological goals, 

has provisions for monitoring and reporting progress, and is of a 

duration sufficient to substantially implement the plan and achieve the 

plan's goals and objectives). Units containing a management plan or 

regime that meets the above criteria have been excluded from 

designation.

    Comment (11): Several commenters stated concern over the regular 

operation, repair, and maintenance of existing oil and gas pipelines 

and water diversion canals within critical habitat boundaries. Several 

commenters are concerned that critical habitat designation will affect 

water district supplies. They stated that significant economic effects 

will occur if operations of banking projects or delivery canals require 

modifications.

    Our Response (11): Activities carried out, funded, authorized, or 

permitted by a Federal agency (i.e., Federal nexus) require 

consultation pursuant to section 7 of the Act if they may affect a 

federally listed species and/or its designated critical habitat. Our 

experience with consultations on the Buena Vista Lake shrew is that few 

oil and gas activities have involved a Federal nexus and have not 

required a consultation under Section 7 of the Act. Regardless, we have 

excluded from critical habitat the units with oil and gas pipelines due 

to their adequate management plans. See Exclusions Under Section 

4(b)(2) of the Act. Similarly, there are no water diversion canals 

within final critical habitat boundaries. The canal that occurs within 

the unit included in the final designation has been removed from the 

critical habitat boundary. Therefore, projects within these canals 

would not require consultation due to critical habitat.

    Comment (12): Several commenters stated that designation would 

result in restrictions or delays to regular operation or maintenance or 

new construction of water delivery or agricultural or industrial 

facilities, requiring consultation with the Service.

    Our Response (12): All lands designated as critical habitat are 

within the geographic area occupied by the species, and are likely to 

be used by the Buena Vista Lake shrew, whether for foraging, breeding, 

growth of juveniles, genetic exchange, or sheltering. Thus, we consider 

all critical habitat units to be occupied by the species. Federal 

agencies already consult with us on activities in areas currently 

occupied by the species or if the species may be affected by the action 

to ensure that their actions do not jeopardize the continued existence 

of the species. Therefore, we believe that the designation of critical 

habitat is not likely to result in additional regulatory burden above 

that already in place due to the presence of the listed species.



Issue 4--Mapping Methodology



    Comment (13): Several commenters asked that specific areas that 

they believed do not exhibit the PCEs be excluded from the critical 

habitat designation.

    Our Response (13): Where site-specific documentation was submitted 

to us providing a rationale as to why an area should not be designated 

critical habitat, we evaluated that information in accordance with the 

definition of critical habitat pursuant to section 3 (5)(A) of the Act 

and the provisions of section 4 (b)(2) of the Act. Following our 

evaluation of the parcels, we made a determination as to whether 

modifications to the proposal were warranted. In the preparation of the 

final rule, we further examined the area proposed and we refined the 

critical habitat boundaries to exclude, where possible within the 

limitations of our minimum mapping scale, those areas that did not, or 

were not likely to, contain the PCEs for the Buena Vista Lake shrew.

    Please refer to the Summary of Changes from the Proposed Rule 

section of this final rule for a more detailed discussion of changes 

and exclusion from the proposed rule.

    Comment (14): One commenter urges the Service to expand critical 

habitat designation to include all habitats essential to the 

conservation of the species and in need of special management. The 

commenter further states that the proposed rule does not ensure 

recovery of the species. They state that the designation is too small 

and too isolated to ensure viable, self-sustaining populations. They 

argued that the rule should include occupied as well as unoccupied 

potential habitat that could be recolonized and provide potential 

dispersal habitats. This commenter also stated that the Service should 

analyze areas described in the Recovery Plan for inclusion in the final 

rule, as well as areas to provide connectivity. One commenter 

recommends identifying locations, such as irrigation ditches and other 

potentially restorable riparian habitats which might provide essential 

connectivity between existing large blocks of core habitat. This 

commenter also wants the required agriculture land location at Atwell 

Island near Alpaugh included as critical habitat.

    Our Response (14): Although we agree that preserving connectivity 

between known occupied locations is important for the conservation of 

the Buena Vista Lake shrew, we do not believe that unoccupied and 

historical locations are essential for the conservation of the species. 

The Recovery Plan for Upland Species of the San Joaquin Valley 

(Recovery Plan) determined that the Buena Vista Lake shrew could be 

conserved by protecting habitat in three or more disjunct occupied 

conservation areas, excluding unoccupied and/or historical locations. 

All units that were described in the Recovery Plan were analyzed to 

determine if the areas exhibited the physical and biological features 

(PCEs) that are essential to the conservation of the shrew and may 

require special management. The five units that we have proposed to 

designate as critical habitat provide for the essential life-cycle 

needs of the species, and provide the habitat components essential for 

the conservation of this species (i.e., the primary constituent 

elements (PCEs) described below in the Primary Constituent Elements 

section). Under the Act, areas without PCEs cannot be designated 

critical habitat, such as these areas suggested for potentially 

restorable areas, unless determined to be essential for the 

conservation of the species. Again, we have determined that the areas 

or units that we have proposed to designate as critical habitat provide 

the habitat components essential for the conservation of this species. 

Therefore, we do not believe that it is necessary to the conservation 

of the Buena Vista Lake shrew to designate critical habitat in 

unoccupied areas.



Issue 5--Procedural Concerns



    Comment (15): Several commenters stated concerns because the 

proposed rule was not accompanied by an economic analysis. They claimed 

it was difficult to comment on the proposed rule without reviewing the 

information from the economic analysis.

    Our Response (15): We made a draft of the economic analysis (DEA) 

available for public comment for the Buena Vista Lake shrew on November 

30, 2004, and accepted comments on the DEA from that date through 

December 15, 2004 (69 FR 69578). The information presented in the DEA 

has been reviewed



[[Page 3443]]



and its analysis has been included in our decisionmaking process for 

the final designation.

    Comment (16): Several commenters stated that the Service could not 

designate critical habitat without first complying with NEPA 

requirements.

    Our Response (16): We published a notice in the Federal Register on 

October 25, 1983 (48 FR 49244) outlining our reasons for our 

determination not to prepare an environmental analyses as defined by 

the NEPA in connection with designating critical habitat under the 

Endangered Species Act of 1973, as amended. It is our position that in 

the Ninth Circuit, as upheld by the courts (Douglas County v. Babbitt, 

48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996), 

we do not need to prepare environmental analyses as defined by the 

NEPA.

    Comment (17): One commenter argued that the proposed critical 

habitat designation contains areas that are not occupied by the shrew. 

The commenter stated that Congress restricts the authority of the 

Service to designate critical habitat in areas that are occupied.

    Our Response (17): All lands designated as critical habitat are 

within the geographic area and have been documented to be occupied by 

the species (CNDDB 2004; Maldonado 1992; Williams and Harpster 2001; 

ESRP 2004), and are likely to be used by the Buena Vista Lake shrew, 

whether for foraging, breeding, growth of juveniles, genetic exchange, 

or sheltering. Thus, we consider all critical habitat units to be 

occupied by the species.

    Comment (18): One commenter requested that Unit 2 be excluded from 

designation because it is currently in negotiations for a Section 7 

permit, which the commenter believes would provide the area with a 

sufficient management plan.

    Our Response (18): A current plan provides adequate management or 

protection if it meets three criteria, outlined above in our Response 

to Comment 10. A Section 7 consultation with long-term conservation 

assurances provides for the long-term protection and management of the 

species and its habitat. At the time we received this comment, the 

Service was in negotiations for a Section 7 permit. A Biological 

Opinion with long-term conservation assurances has since been completed 

and issued for the Gooselake project. The Goose Lake Unit has been 

excluded from designation based on the conservation measures that will 

benefit the Buena Vista Lake shrew outlined in the Section 7 

consultation and long term easement on the project. See Exclusions 

Section.

    Comment (19): The City of Bakersfield stated that it is operating 

under current management practices that benefit the shrew and that it 

is currently developing a management plan to benefit the shrew, and 

therefore its unit should be excluded from designation.

    Our Response (19): The City of Bakersfield's Kern Fan Water 

Recharge Unit has been excluded from designation based on the 

conservation measures that will benefit the Buena Vista Lake shrew 

outlined in the management plan which meets the Service's exclusion 

criteria. See Exclusions Section.

    Comment (20): Several commenters stated that the Coles Levee Unit 4 

is covered by a management plan sufficient for the protection of the 

species and its habitat and should be excluded from designation. The 

commenters stated that the conservation easement for the Coles Levee 

Unit, that is held by California Department of Fish and Game, 

specifically recognizes the shrew in Section 5.3 of the easement as a 

``Species of Concern Benefited by this Easement.''

    Our Response (20): We have reviewed and evaluated the conservation 

easement conditions which meet the Service's exclusion criteria. We 

have determined that the Coles Levee Unit 4 should be excluded from the 

designation based on the conservation measures that will benefit the 

Buena Vista Lake shrew. See Exclusions section.



Issue 6--Economic Analysis



    Comment (21): One comment suggested that the analysis should 

address the costs associated with ``allowing the extinction of the 

subspecies of shrew, including the genetic traits necessary for the 

survival of the entire species.'' Furthermore, extinction of the shrew 

would be a loss of opportunity for students and scientists who study 

the species, and who also spend money locally.

    Our Response (21): The purpose of the DEA is to estimate the 

economic effects of conservation activities associated with the listing 

and designation of critical habitat for the shrew, as well as the 

economic effects of the protective measures taken as a result of the 

listing. The Service believes that the benefits of critical habitat 

designation are best expressed in biological terms that can be weighed 

against the expected cost impacts of the rulemaking. Thus, the DEA does 

not provide a monetary measure of the economic benefits of preventing 

extinction.

    Comment (22): One comment indicated that the economic analysis of 

critical habitat designation should measure not only loss of profit 

(i.e., lost producer surplus) of affected businesses, but loss of 

revenue as a measure that may better capture the total economic 

impacts, including ``employment dislocation'' and ``associated ill 

effects.''

    Our Response (22): The Service acknowledges that the economic 

effects identified by the commenter are important, and should be 

addressed. Both categories of effects (i.e., welfare change in terms of 

lost producer surplus, and distributional effects in terms of 

employment dislocation) were addressed in the DEA. However, guidance 

from OMB, and compliance with Executive Order 12866 specifies that 

Federal agencies measure changes in economic efficiency as a means of 

understanding how society will be affected by a regulatory action. This 

provides a measure of the net impact of conservation measures. 

Consideration of how certain economic sectors or groups of people are 

affected in a distributional manner is important and should be 

considered, but OMB encourages Federal agencies to consider 

distributional effects separately from efficiency effects. These 

distinctions are discussed in Sections 1.1.1 and 1.1.2 of the DEA. As 

such, the DEA presents the quantitative effects of shrew conservation 

measures as the efficiency effects, and presents the distributional 

effects of changes in agricultural activities in Section 5.5.

    Comment (23): One comment suggested that the water requirement 

assumption of 3.5 acre-feet per acre is ``much too high, and that use 

of evapotranspiration rates for field crops and grass is not 

appropriate because it does not account for shading or mulch (as 

suitable habitat for the Buena Vista Lake shrew).''

    Our Response (23): Several sources were consulted to determine 

appropriate water requirements for use in the DEA. The estimate of 3.5 

acre-feet per acre was suggested by managers of the Kern National 

Wildlife Refuge (KNWR). As noted by those managers and as reported in 

Section 6.3.5.1 of the DEA, a rate of 3.5 acre-feet per acre provides 

for optimal management of habitat in KNWR. This level was considered 

reasonable because all units are in the same geographic zone, and the 

KNWR water rate reflects optimal management conditions. As noted in 

Section 2.0 of the DEA, estimates of water requirements for wetland 

habitat in the San Joaquin Valley range as high as 10 acre-feet per 

acre.



[[Page 3444]]



    Comment (24): One comment noted that the cost of water purchases 

for maintaining habitat based on $209 per acre-foot is ``not 

accurate,'' and would instead require the purchase of permanent water 

rights for ``a guaranteed source of water.'' Furthermore, current costs 

for water is $2,500 per acre-foot.

    Our Response (24): In drafting the DEA, the need for water was 

investigated for each of the proposed units. This research concluded 

that supplemental water would be necessary on two units (Unit 1, Kern 

National Wildlife Refuge; and Unit 2, Goose Lake), but may or may not 

be warranted on the remaining three units. The DEA assumes that 

supplemental water may be purchased on an as-needed basis. The $209 per 

acre-foot estimate is an average spot price for leased water, 

equivalent to a one-time, one-use acquisition. The purchase of 

permanent water rights would add more certainty to the attainment of 

water, and would be a reasonable and conservative assumption. There is 

little difference between a purchase price of $2,500 per acre-foot and 

discounted annual purchases of leased water, however. Thus, this 

comment does not significantly change the quantitative results of the 

economic analysis.

    Comment (25): One comment letter inquired whether all the water 

applied to shrew habitat would be transpired or evaporated, or whether 

some would soak into the ground for eventual availability to adjacent 

water banks or croplands.

    Our Response (25): The DEA considered the water diversion 

requirement (that is, the gross amount of water that would be applied 

to habitat). It is understood in the DEA that only a portion of that 

water would be used by plants or evaporated, and that at least some of 

that water would soak into the ground and would be available for other 

uses.

    Comment (26): Multiple comments stated that the DEA understated the 

cost to water districts by not considering ``worst case'' operating and 

maintenance costs if the Service imposes restrictions on Federal 

surface water allotments, use of conveyance systems, water banking, and 

other water district activities and programs.

    Our Response (26): A range of possible scenarios was investigated 

through interviews with area water district managers and 

representatives exploring the potential restrictions or other measures 

that could be imposed on water districts or purveyors. The ``worst 

case'' scenarios were considered, including the possibility of much 

higher costs for purchased water, and the possibility of closure of the 

existing facilities to future uses for water banking or withdrawal. 

However, further research revealed that these scenarios could not be 

substantiated through available information and therefore were too 

speculative to be considered reasonably foreseeable.

    Comment (27): A comment submitted on behalf of the City of 

Bakersfield, Kern County Farm Bureau, Kern County Water Agency, and 

J.G. Boswell Company suggested that designation of Unit 3 as critical 

habitat, Kern Fan Water Recharge Area (KFWRA), ``places in jeopardy 

roughly $37.5 million in water resources'' of the City of Bakersfield, 

and ``another $25 million in potential replacement costs'' for other 

entities who bank water (Buena Vista Water Storage District, Cal Water 

Service Company, Kern County Water Agency, and the Olcese Water 

District). The comment states that the KFWRA is an essential element of 

the City's water supply that is relied upon for water storage. If 

banking of water at this project is restricted, the City may be 

required to seek additional water supplies from the already stressed 

State Water Project and Central Valley Project, which will result in 

additional economic and environmental impacts. Further, if banking of 

water during flood events is restricted, Kern River water could flood 

adjacent properties resulting in public safety risks. The commenter 

also suggested that the designation of Unit 3 may alter the diversion 

of water upstream of the habitat area and that Section 7 consultations 

``could cause the Army Corps of Engineers to re-schedule its 

operational releases from Lake Isabella to maintain habitat downstream 

in Unit 3.''

    Our Response (27): Importantly, Unit 3 of the proposed designation 

is excluded from the final designation and impacts to water banking 

projects including the KFWRA associated with shrew conservation 

measures are therefore not expected. The following discussion, however, 

provides some context to the consideration of this project in the DEA. 

Multiple possible management scenarios for Unit 3 were investigated in 

the development of the DEA through interviews with area water district 

managers and representatives exploring the potential restrictions or 

other measures that could be imposed on water districts or purveyors. 

This research determined that a change in the management of the water 

recharge area from its historic operations would not be required if 

Unit 3 is designated as critical habitat. In the case that water 

banking quantity or timing were impacted, economic impacts could occur 

though all information gathered during the development of the DEA did 

not suggest this would be the case.

    Comment (28): One comment noted that, should the banked water from 

the Kern River and Friant-Kern Canal in Unit 3 be made unavailable to 

the Pioneer Project, Kern Water Bank, and Berrenda Mesa Project, the 

``replacement value'' at a rate of $209 per acre-foot for a total of 

43,337 acre-feet banked annually would amount to $9.1 million per year 

(or $130 million over 20 years applying a seven percent discount rate). 

Additionally, the commenter states that the DEA doesn't consider total 

economic impacts; ``secondary impacts'' resulting from timing of water 

supply and economic dislocation may result in an even greater cost. 

Applying a multiplier of 2.2, the commenter suggests impacts may be as 

high as $311 million. The commenter further suggests that 

``conservation of that water may entail fallowing in some other 

location that is supplying the water,'' and cites estimates for field 

crops (e.g., alfalfa) and the loss of revenue that would lead to an 

economic impact of $21.8 million annually. An additional commenter 

suggested that the Friant Water Authority could be affected in its 

ability ``to manage flood waters with Kern and Tulare County water 

districts and growers throughout its Service Area.''

    Our Response (28): Unit 3 is not included in the final designation 

for the BLVS and therefore no costs are expected related to the shrew 

designation in this area for purchase of replacement water. The 

following discussion, however, provides more information on the water 

use in the region. The current operation of Unit 3 is as a water 

recharge area, where excess flows from the Kern River are allowed to 

percolate to the groundwater aquifer for later extraction. The DEA 

concludes that a change in the management of the water recharge area 

from its historic operations would not be required if the area were to 

be designated as critical habitat and, as such, that there would not be 

a need to purchase the replacement of 43,337 acre-feet. In the case 

that operations were significantly affected, and some amount of water 

lost to these projects, the DEA would understate the economic effects 

to water users.

    The Kern Fan Water Recharge Area also serves as a flood control 

management area, where flood flows may be deposited and channeled from 

other areas. The DEA concludes that the area will continue its historic 

use of flood management. To the extent that



[[Page 3445]]



flood management uses were restricted, the DEA would understate the 

economic effects in Unit 3.

    Comment (29): One commenter stated that the Friant-Kern Canal and 

its district distribution systems could be affected by additional 

vegetation control or management on canals directing water to the 

critical habitat units.

    Our Response (29): Neither the Friant-Kern Canal or Friant Water 

Authority and its member districts have facilities within or adjacent 

to any of the proposed units, and their distribution systems are not 

likely to be affected with additional vegetation control requirements.

    Comment (30): One commenter indicated that the requirement for 

water to enhance critical habitat units ``could cause a redirection of 

water in the Friant-Kern Canal,'' and that such a redirection would 

cause a financial burden to the Friant Water Authority. The commenter 

further notes that water purchased by the federal government for the 

critical habitat units ``must be delivered to the sites, and the costs 

of which would be partly provided by the Authority.''

    Our Response (30): The need for supplemental water in each of the 

critical habitat units is effected by the assumption that water will be 

purchased from willing sellers. As such, no redirection or displacement 

of existing uses would take place; rather, supplemental water may be 

purchased on an as-needed basis. A $209 per acre-foot estimate is an 

average spot price for leased water, equivalent to a one-time, one-use 

acquisition. The purchase price is assumed to include cost of delivery, 

and thus it would cover the cost of conveyance systems. The economic 

costs for water purchases are discussed in Section 6.3.5 in the DEA.

    Comment (31): One commenter noted that requirement of water to 

flood habitat may burden the water districts operating the Friant-Kern 

Canal. During dry years, when the amount of water is limited, 

additional burden may occur on the Friant Water Authority and its 

member districts.

    Our Response (31): The supplemental water for the critical habitat 

units is assumed to be purchased on an as-needed basis from willing 

sellers. In dry years, when water to member districts may be limited, 

the critical habitat units may also be limited in acquisition of water. 

In other words, water for the critical habitat units is necessarily 

secondary (or junior) to the member districts, and may not be available 

in dry years. As such, that the units need water is not expected to 

have a supplemental financial burden effect on member districts.

    Comment (32): Two comments indicated that the cost to agriculture 

is understated in that a larger buffer that the 45 feet estimated in 

the DEA would be necessary between farmed lands and critical habitat. 

One commenter also suggested that farmers who typically use aerial 

application of pesticides may have to change to more expensive ground 

application, and incur the higher costs.

    Our Response (32): For the DEA, the Extension Service was consulted 

regarding the appropriate width of a buffer that is intended to prevent 

pesticide drift from farmed lands, and that would also allow for 

maneuverability of farm equipment. This width (45 feet) was used in the 

analysis.

    Aerial application of pesticides is more likely to result in 

pesticide drift than are ground-based methods. There are six or fewer 

farms with cultivated land located adjacent to critical habitat. These 

are farms that are adjacent to Unit 2 (Kern Fan Recharge), Unit 3 

(Goose Lake), and Unit 5 (Kern Lake). To the extent that any or all of 

these farms currently use aerial pesticide applications and switch to 

ground applications then the annual cost to those farms may be 

understated assuming costs of ground application is more expensive. It 

is not clear, however, how and where these farms employ pesticides, and 

it was not determined in the development of the DEA that aerial 

application would be restricted.

    Comment (33): One comment indicated that the cost to agriculture is 

overstated, in that the value of the fruit produced in buffers should 

be subtracted from the cost of the trees.

    Our Response (33): The DEA assumed that the pomegranate tree 

buffers planted on agricultural lands would not be developed for 

commercial production purposes, but to create ``hedgerow thickets'' 

designed to limit pesticide drift. As such, the plantings would be 

dense and managed for brush and foliage rather than fruit production, 

the yield of which would be less than a comparable orchard. Harvesting 

of fruit would be made difficult by the thicket. In conclusion, any 

revenue from fruit sales would be minimal.

    Comment (34): One comment indicated that in Unit 5 (Kern Lake), 

``soil and groundwater conditions will not allow tree production'' in 

the proposed buffer strip.

    Our Response (34): The buffers would be installed in currently 

cultivated farmland. To the extent that the suggested buffer planting 

of a pomegranate hedgerow will not survive because of the soil type, an 

alternative brushy or hedgerow plant could be identified as suitable 

for the soils. The cost of installing the buffer is not expected to 

vary more than a nominal amount from that estimated in the DEA in the 

case that a different hedgerow is required.

    Comment (35): One comment noted that the DEA statement that ``there 

is no cultivated farmland within the boundaries of the proposed 

designation'' is not accurate. The commenter noted that approximately 

47 acres in four fields within Unit 2, Goose Lake, have been cultivated 

in the past, and have been and are eligible for annual loan deficiency 

(Farm Program) payments.

    Our Response (35): To the extent that the land continues to be 

enrolled in the Farm Program, and the owners choose not to cultivate 

the land for crop production in the future in order to avoid an 

incidental take of shrew, then the effect of the critical habitat 

designation would be the difference between net revenue (after 

expenses) of crop production and the farm program deficiency payment. 

This amount will vary depending upon crop and deficiency payment 

amount. In 2004, according to the commenter, the fields received loan 

deficiency payments, indicating that they may not have been cultivated 

and have not been used to produce an alternate crop. If this status 

were to continue in the future, there would be no effect on the owner 

from the critical habitat designation.

    Comment (36): One commenter states that the DEA ``fails to address 

the impacts to upstream agricultural water users if their water 

allotments are reduced or eliminated.''

    Our Response (36): The DEA considered the water needs of the 

critical habitat units, and acknowledges that supplemental water, 

whether required or optional, would necessitate a purchase or lease of 

water from willing sellers. Section 6.3.5 provides an analysis of the 

water requirements and associated costs for each of the units. The DEA 

also contemplated the possibility of closure of the existing facilities 

or effects on water users upstream of the units and determined these 

scenarios were considered unlikely; therefore, associated impacts were 

too speculative to be considered reasonably foreseeable.

    Comment (37): One comment letter requested information as to 

whether critical habitat designation in Unit 5 (Kern Lake) would 

affect: (1) Mosquito abatement; (2) diversions of water from New Rim 

Ditch; (3) timing and



[[Page 3446]]



quantities of flows through the Kern Delta Water District facilities; 

(4) farming activities adjacent to Unit 5; (5) operation of the tile 

drain system; (6) maintenance of canals and roadways; (7) eligibility 

of the site for development into a mitigation bank; (8) eligibility for 

inclusion of Unit 5 into the Metropolitan Bakersfield HCP; and (9) 

activities of the owner to voluntarily supply water to the site.

    Our Response (37): In the development of the DEA, our investigation 

regarding whether changes would be recommended to modify existing 

mosquito abatement activities revealed that producers who follow 

pesticide labels instructions for application will not be impacted by 

shrew conservation activities. The Kern Delta Water District uses the 

New Rim Ditch to transport water to its service members. The New Rim 

Ditch lies adjacent to, but outside of, critical habitat in Unit 5. It 

was determined that requirements for changing diversions, quantities, 

and timing of flows through existing facilities was not reasonably 

foreseeable in this area. The DEA considered farming activities in 

terms of the planting of buffer strips on adjacent lands, including 

those adjacent to Unit 5 (see Section 5.4 of the DEA). Implementation 

of these buffer zones is estimated to cost approximately $5,187 

annually. The DEA also considered whether designation of critical 

habitat would affect operation, or possible removal, of the tile drain 

system. Discussions with the land owner indicate that operations on the 

tile drain system include periodic maintenance and repair of the pumps 

transporting tailwater at the end of the drains; these activities are 

not likely to affect the shrew. Routine maintenance of canals and 

roadways, including grading and adding to gravel base, have been 

conducted in the past and are not anticipated to be restricted due to 

shrew conservation activities. Further investigation did not indicate 

that designation of Unit 5 would limit its eligibility for development 

into a mitigation bank, or inclusion into the Metropolitan Bakersfield 

HCP. The potential for restrictions on additional water supply, or 

changes in the timing of water applications to the site, were also 

considered. Such activities are not likely to be restricted or limited 

as the shrew thrives on moist edges to wetted areas, and could 

reasonably adapt under these conditions.

    Comment (38): One comment letter expressed concern about the future 

status of the tile drain system in Unit 5 (Kern Lake), and the economic 

damage in terms of land values and crop losses ``in excess of $30 

million'' that would result if the Service required it to be 

dismantled.

    Our Response (38): In developing the DEA, the possibility of 

impacts to tile drain system project, including its removal, were 

examined. No evidence was uncovered to give reason to assume that the 

existing system or tile drain in place would require any alteration, 

and therefore it was determined that there would not be any reasonably 

foreseeable loss of land value or crop production associated with 

modification to this project.

    Comment (39): One commenter stated that the Kern Delta Water 

District operates and maintains the New Rim Ditch in Unit 5, and 

expressed concern that the district would be impacted if their ability 

to operate the ditch is affected by the designation.

    Our Response (39): The New Rim Ditch, levee, and adjacent roadway 

are on the boundary, but outside of, the Unit 5. Previous operations 

and use of the New Rim Ditch have been conducive for the survival of 

the shrew, and the seepage has been beneficial for its habitat. As long 

as current operations and use do not change in the future, there would 

be no restrictions placed upon it that would result in economic 

effects.

    Comment (40): One commenter indicated that the Buena Vista Water 

Storage District (BVWSD), which owns the Outlet Canal, located within 

Unit 4, Coles Levee, could be affected if they are unable to line the 

canal as they plan.

    Our Response (40): Proposed Unit 4 is not included in the final 

designation for the BLVS and therefore no further costs are expected 

related to the shrew associated with this potential project. The 

following discussion, however, provides more information on the Outlet 

Canal lining project. A representative of the BVWSD was contacted 

regarding operational plans for the Outlet Canal. The BVWSD has 

considered lining the Outlet Canal since the late 1970s, but never 

completed necessary feasibility studies. More recently, the District 

has begun to consider it again, based on the installation of new 

equipment to better measure the seepage from the canal. Among the study 

alternatives is the efficacy of lining the entire canal (bottom and 

sides) versus lining the bottom and only parts of the sides, leaving 

the top parts of the levees unlined in order to protect the waterway 

habitat. Lining of the canal could provide the BVWSD with a reduction 

in seepage loss and ability to use or sell the conserved water. The 

benefit to the BVWSD of the additional water would be offset by the 

cost of lining. Future improvements or changes to the Outlet Canal are 

uncertain, as the economic feasibility of improvements to the BVWSD has 

not yet been determined.

    Comment (41): One comment asserts that the study understated the 

full range of effects on private individuals or entities due to Section 

7 consultations that induce the preparation of biological reports. In 

particular, costs of preparation and ongoing operating costs for the 

Kern County Valley Floor HCP are understated. The Kern County Planning 

Department estimates that these costs are $200,000 for completion of 

the HCP document and more than $70,000 annually in subsequent years for 

implementation.

    Our Response (41): The costs to private entities was determined 

along with other costs associated with Section 7 consultations and 

development of HCPs. Table 16 in the DEA provides a summary of the 

costs to non-Federal entities, both as a result of the listing and 

anticipated in the future.

    With respect to the Kern County Valley Floor HCP, the commenter was 

contacted for cost estimates in the course of preparing the DEA, and 

those costs were subsequently included in the revised economic 

analysis. The total cost to date of $450,000 was assumed to be divided 

equally among the 28 species included in the HCP. The prospective 

annual cost, which is $125 as shown in Table 16, was based on the 

$70,000 forecasted by the commenter as required to complete the HCP. 

The annual costs may appear understated because they are assumed to be 

shared equally among the 28 listed species considered in the HCP.

    Comment (42): One comment suggested that designation of Unit 3, 

Kern Fan Water Recharge, would necessitate the installation of ``an 

irrigation system such as sprinklers * * * to water disconnected areas 

and establish sufficient vegetative cover.'' As such, the DEA should 

include the annual costs for a sprinkler system.

    Our Response (42): Proposed Unit 3 is currently operated as a water 

recharge area, where excess flows from the Kern River are allowed to 

percolate to the groundwater aquifer for later extraction. The DEA did 

not anticipate significant enough changes to operations in this Unit to 

necessitate the installation of infrastructure for irrigation. However, 

Unit 3 is not included in the final designation for the BLVS and 

therefore no costs are expected related to the shrew for an irrigation 

system in this area.

    Comment (43): One comment noted that the DEA does not consider 

``the costs of replacing the consumptive use



[[Page 3447]]



of water needed to moisten shrew habitat'' within Unit 3, the Kern Fan 

Water Recharge, and that the replacement of 9,163 acre-feet of 

groundwater in that unit would cost $1.9 million annually.

    Our Response (43): Unit 3 is not included in the final designation 

for the BLVS and therefore no costs are expected related to the shrew 

for purchase of replacement water. The following discussion, however, 

provides more information on the consumptive water use in the region. 

The Kern Fan Water Recharge area operates as a water bank with an 

intentional use of allowing water to percolate to the groundwater 

aquifer for eventual reuse. In allowing percolation of supplemental 

water, and simultaneously providing habitat moisture to the benefit of 

the shrew, some evaporative loss may occur that would not be 

recoverable. Assuming a 15 percent rate of evaporative loss, 

approximately 1,375 acre-feet of the supplemental water would not be 

available to groundwater users. It should be noted that it is not known 

whether supplemental water will be required in the Kern Fan Recharge 

Area. If water is required, it is assumed that water would be purchased 

from willing sellers, and hence would not displace other existing uses. 

Nevertheless, should the water be required, the upper bound on the 

opportunity cost of the 1,375 acre-feet of water lost, at $209 per 

acre-foot, would be $287,375 annually.

    Comment (44): One comment letter stated that the Semitropic Water 

District owns and operates a canal in Unit 2 for water delivery and 

transport of flood waters, and concern was expressed that the district 

would be constrained in its operations or use of the canal.

    Our Response (44): This canal is not included in the final 

designation for the shrew as Unit 2 has been excluded from designation 

and therefore no economic impacts are anticipated to this project. 

Current operations of the canal in Unit 2 for water delivery and 

transport of flood waters have permitted the survival of the shrew, 

however, and investigation regarding whether the canal's operation or 

use would be restricted in the future under a critical habitat 

designation concluded that restrictions are reasonably foreseeable.

    Comment (45): One comment letter submitted on behalf of the 

Gooselake Holding Company (GHC) clarified the ownership status and 

plans for surface water regulation and groundwater recharge within Unit 

2, Goose Lake, consistent with a Biological Opinion signed by the 

Service on November 15, 2004. GHC owns most of the Goose Lake Area, not 

the Semitropic Water Storage District as stated in the DEA.

    Our Response (45): The Biological Opinion for this project was 

signed after the publication date of the DEA. The Service appreciates 

these clarifications to the description in the DEA and they are 

incorporated into the revised analysis. It is of note, however, that 

Unit 2 of the proposed critical habitat, which contains this project, 

has been excluded from the final designation of critical habitat.

    Comment (46): One comment inquired whether water purchased for 

maintenance of shrew habitat would enhance waterfowl habitat in Unit 2 

(Goose Lake), and if so, could a monetary value be placed on the 

enhancement and deducted from the cost of water.

    Our Response (46): It is possible that waterfowl habitat would be 

enhanced by purchase of water for shrew habitat. However, estimating 

the monetary value or economic benefits (``negative costs'') of habitat 

enhancement is extremely difficult, and requires that a strict set of 

conditions be met in order to follow the guidance of the Office of 

Management and Budget and develop useable results. While improvements 

to habitat to other species may occur, the Service believes that the 

benefits of critical habitat designation are best expressed in 

biological terms that can be weighed against the expected cost impacts 

of the rulemaking. Thus, this DEA does not provide a monetary measure 

of the economic benefits of improving habitat for other species.



Summary of Changes From the Proposed Rule



    In preparing our final designation of critical habitat for the 

Buena Vista Lake shrew, we reviewed comments received on the proposed 

designation of critical habitat. In addition to minor clarifications in 

the text, we made numerous changes to our proposed designation, as 

follows:

    (1) Under section 4(b)(2) of the Act, we excluded four properties 

with adequate management plans that provide for conservation of the 

Buena Vista Lake shrew and its habitat. For more information, refer to 

Exclusions Under 4(b)(2) of the Act section below.

    (2) We refined our mapping boundaries, using the best information 

available to us, to include only occupied areas which we have 

determined to have the primary constituent elements and are essential 

to the shrew. We removed canals, open water areas, and other 

nonessential areas from the proposed critical habitat designation.

    (3) Collectively, we excluded a total of 4,566 ac (1,848 ha) of 

federally and privately-owned lands from this final critical habitat 

designation.



           Table 1.--Proposed and Final Critical Habitat Area

------------------------------------------------------------------------

            Unit                    Proposed                Final

------------------------------------------------------------------------

1. Kern Wildlife Refuge Unit  387 ac (157 ha).....  0 ac (0 ha).

2. Goose Lake Unit..........  1,277 ac (517 ha)...  0 ac (0 ha).

3. Kern Fan Recharge Unit...  2,682 ac (1,085 ha).  0 ac (0 ha).

4. Coles Levee Unit.........  214 ac (87 ha)......  0 ac (0 ha).

5. Kern Lake Preserve Unit..  90 ac (36 ha).......  84 ac (34 ha).

¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤

------------------------------------------------------------------------



Critical Habitat



    Section 3(5)(A) of the Act defines critical habitat as--(i) the 

specific areas within the geographic 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 (I) essential to the conservation of 

the species and (II) that may require special management considerations 

or protection; and (ii) specific areas outside the geographic area 

occupied by a species at the time it is listed, upon a determination 

that such areas are essential for the conservation of the



[[Page 3448]]



species. ``Conservation'' means the use of all methods and procedures 

that are necessary to bring an endangered or a threatened species to 

the point at which listing under the Act is no longer necessary.

    The designation of critical habitat does not affect land ownership 

or establish a refuge, wilderness, reserve, preserve, or other 

conservation area. It does not allow government or public access to 

private lands. Under section 7 of the Act, Federal agencies must 

consult with us on activities they undertake, fund, or permit that may 

affect critical habitat and lead to its destruction or adverse 

modification. However, the Act prohibits unauthorized take of listed 

species and requires consultation for activities that may affect them, 

including habitat alterations, regardless of whether critical habitat 

has been designated. We have found that the designation of critical 

habitat provides little additional protection to most listed species.

    To be included in a critical habitat designation, habitat must be 

either a specific area within the geographic area occupied by the 

species on which are found those physical or biological features 

essential to the conservation of the species (primary constituent 

elements, as defined at 50 CFR 424.12(b)) and which may require special 

management considerations or protections, or be specific areas outside 

of the geographic area occupied by the species which are determined to 

be essential to the conservation of the species. Section 3(5)(C) of the 

Act states that not all areas that can be occupied by a species should 

be designated as critical habitat unless the Secretary determines that 

all such areas are essential to the conservation of the species. Our 

regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall 

designate as critical habitat areas outside the geographic area 

presently occupied by the species only when a designation limited to 

its present range would be inadequate to ensure the conservation of the 

species.''

    Regulations at 50 CFR 424.02(j) define special management 

considerations or protection to mean any methods or procedures useful 

in protecting the physical and biological features of the environment 

for the conservation of listed species. When we designate critical 

habitat, we may not have the information necessary to identify all 

areas that are essential for the conservation of the species. 

Nevertheless, we are required to designate those areas we consider to 

be essential, using the best information available to us. Accordingly, 

we do not designate critical habitat in areas outside the geographic 

area occupied by the species unless the best available scientific and 

commercial data demonstrate that those areas are essential for the 

conservation needs of the species.

    Section 4(b)(2) of the Act requires that we take into consideration 

the economic impact, the impact on national security, and any other 

relevant impact of specifying any particular area as critical habitat. 

We may exclude areas from critical habitat designation when the 

benefits of exclusion outweigh the benefits of including the areas 

within critical habitat, provided the exclusion will not result in 

extinction of the species.

    Our Policy on Information Standards under the Endangered Species 

Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 

provides criteria, establishes procedures, and provides guidance to 

ensure that our decisions represent the best scientific and commercial 

data available. It requires our biologists, to the extent consistent 

with the Act and with the use of the best scientific and commercial 

data available, to use primary and original sources of information as 

the basis for recommendations to designate critical habitat. When 

determining which areas are critical habitat, a primary source of 

information should be the listing package for the species. Additional 

information may be obtained from a recovery plan, articles in peer-

reviewed journals, conservation plans developed by States and counties 

or other entities that develop HCPs, scientific status surveys and 

studies, biological assessments, or other unpublished materials and 

expert opinion or personal knowledge.

    Section 4 of the Act requires that we designate critical habitat on 

the basis of what we know at the time of listing. Habitat is often 

dynamic, and species may move from one area to another over time. 

Furthermore, we recognize that designation of critical habitat may not 

include all of the habitat areas that may eventually be determined to 

be necessary for the recovery of the species. For these reasons, 

critical habitat designations do not signal that habitat outside the 

designation is unimportant or may not be required for recovery.

    Areas that support populations, but are outside the critical 

habitat designation, will continue to be subject to conservation 

actions implemented under section 7(a)(1) of the Act and to the 

regulatory protections afforded by section 7(a)(2) and section 9 of the 

Act, as determined on the basis of the best available information at 

the time of the action. Federally funded or permitted projects 

affecting listed species outside their designated critical habitat 

areas may still result in jeopardy findings in some cases. Similarly, 

critical habitat designations made on the basis of the best available 

information at the time of designation will not control the direction 

and substance of future recovery plans, habitat conservation plans, or 

other species conservation planning efforts if new information 

available to these planning efforts calls for a different outcome.



Methods



    Our methods for identifying the Buena Vista Lake shrew critical 

habitat included in this final designation are identical to the methods 

we used in our proposal of critical habitat for the Buena Vista Lake 

shrew, published on August 19, 2004 (69 FR 51417).

    As required by section 4(b)(2) of the Act and regulations at 50 CFR 

424.12, we used the best scientific and commercial data available to 

determine areas that contain the physical and biological features that 

are essential for the conservation of the shrew. This included data and 

information contained in, but not limited to, the proposed and final 

rules listing the shrew (65 FR 35033, June 1, 2000, and 67 FR 10101, 

March 6, 2002), the Recovery Plan for Upland Species of the San Joaquin 

Valley, California (Service 1998), the proposed rule designating 

critical habitat (69 FR 51417, August 19, 2004), research and survey 

observations published in peer-reviewed articles (Grinnell 1932, 1933; 

Hall 1981; Williams and Kilburn 1984; Williams 1986), habitat and 

wetland mapping and other data collected and reports submitted by 

biologists holding section 10(a)(1)(A) recovery permits, biological 

assessments provided to the Service through section 7 consultations, 

reports and documents that are on file in the Service's field office 

(Center for Conservation Biology 1990; Maldonado et al. 1998; ESRP 

1999a; ESRP 2004), personal discussions with experts inside and outside 

of the Service with extensive knowledge of the shrew and habitat in the 

area, and information received during the two open comment periods. We 

also conducted site visits and visual habitat evaluation in areas known 

to have shrews, and in areas within the historical ranges that had 

potential to contain shrew habitat.

    The critical habitat units were delineated by creating rough areas 

for each unit by screen-digitizing polygons (map units) using ArcView 

(Environmental Systems Research



[[Page 3449]]



Institute, Inc.), a computer Geographic Information System (GIS) 

program. The polygons were created by overlaying current and historic 

species location points (CNDDB 2004), and mapped wetland habitats 

(California Department of Water Resources 1998) or other wetland 

location information, onto SPOT imagery (satellite aerial photography) 

(CNES/SPOT Image Corporation 1993-2000) and Digital Ortho-rectified 

Quarter Quadrangles (DOQQs) (USGS 1993-1998) for areas containing the 

shrew. We utilized GIS data derived from a variety of Federal, State, 

and local agencies, and from private organizations and individuals. To 

identify where essential habitat for the shrew occurs, we evaluated the 

GIS habitat mapping and species occurrence information from the CNDDB 

(2004). We presumed occurrences identified in CNDDB to be extant unless 

there was affirmative documentation that an occurrence had been 

extirpated. We also relied on unpublished species occurrence data 

contained within our files, including section 10(a)(1)(A) reports and 

biological assessments.

    These polygons of identified habitat were further evaluated. 

Several factors were used to delineate the proposed critical habitat 

units from these land areas. We reviewed any information in the 

Recovery Plan for Upland Species of the San Joaquin Valley, California 

(Service 1998), or other peer-reviewed literature or expert opinion for 

the shrew to determine if the designated areas would meet the species' 

needs for conservation and whether these areas contained the 

appropriate primary constituent elements for the species. Further 

refinement was done by using satellite imagery, watershed boundaries, 

soil type coverages, vegetation/land cover data, and agricultural/urban 

land use data to eliminate areas that did not contain the appropriate 

vegetation or associated native plant species, as well as features such 

as cultivated agriculture fields, development, and other areas that are 

unlikely to contribute to the conservation of the shrew.

    As stated earlier, the shrew occurs in habitats in and adjacent to 

riparian and wetland edge areas with a vegetation structure that 

provides cover, allowing for moist soils that support a diversity of 

terrestrial and aquatic insect prey. We have determined that one of the 

five known locations of shrew should be designated as critical habitat 

(CNDDB 2004). This area contains wetland and/or riparian habitat, is 

located within the historical range of the shrew, and is occupied by 

the shrew. The specific essential habitat is explained in greater 

detail below in the Unit Descriptions section.



Primary Constituent Elements



    In accordance with section 3(5)(A)(i) of the Act and regulations at 

50 CFR 424.12, in determining which areas to propose as critical 

habitat, we are required to base critical habitat determinations on the 

best scientific and commercial data available and to consider those 

physical and biological features (primary constituent elements (PCEs)) 

that are essential to the conservation of the species, and that may 

require special management considerations and protection. These 

include, but are not limited to: space for individual and population 

growth and for normal behavior; food, water, air, light, minerals, or 

other nutritional or physiological requirements; cover or shelter; 

sites for breeding, reproduction, and rearing (or development) of 

offspring; and habitats that are protected from disturbance or are 

representative of the historic geographical and ecological 

distributions of a species.

    The specific primary constituent elements required for the shrew 

are derived from the biological needs of the shrew as described in the 

Background section of this proposal and in the final listing rule.



Space for Individual and Population Growth and Normal Behavior



    As described previously, shrew were recorded in association with 

perennial and intermittent wetland habitats along riparian corridors, 

marsh edges, and other palustrine (marsh type) habitats in the southern 

San Joaquin Valley of California. The shrew presumably occurred in the 

moist habitat surrounding wetland margins in the Kern, Buena Vista, 

Goose and Tulare Lakes basins on the valley floor below 350 ft (107 m) 

elevation (Grinnell 1932, 1933; Hall 1981; Williams and Kilburn 1984; 

Williams 1986; Service 1998). With the draining and conversion of the 

majority of the shrew's natural habitat from wetland to agriculture and 

the channelization of riparian corridors for water conveyance 

structures, the vegetative communities associated with the shrew have 

become degraded and non-native species have replaced the plant species 

associated with the shrew (Grinnell 1932; Mercer and Morgan 1991; 

Griggs 1992; Service 1998). Current survey information has identified 

five areas where the shrew has been found (CNDDB 2004; Maldonado 1992; 

Williams and Harpster 2001; ESRP 2004). The five locations are the 

former Kern Lake Preserve (Kern Preserve) on the old Kern Lake bed, the 

Kern Fan recharge area, Cole Levee Ecological Preserve (Cole Levee), 

the Kern National Wildlife Refuge (Kern NWR), and the Goose Lake slough 

bottoms. The vegetative communities associated with these areas and 

with shrew occupancy are characterized by the presence of but are not 

limited to: Fremont cottonwood (Populus fremontii), willows (Salix 

spp.), glasswort (Salicornia sp.), wild-rye grass (Elymus sp.), rush 

grass (Juncus sp.), and other emergent vegetation (Service 1998). 

Maldonado (1992) found shrews in areas of moist ground covered with 

leaf litter near other low-lying vegetation, branches, tree roots, and 

fallen logs, or in areas with cool, moist soil beneath dense mats of 

vegetation kept moist by its proximity to the water line. He described 

specific habitat features that would make them suitable for the shrew: 

(1) Dense vegetative cover; (2) a thick, three-dimensional understory 

layer of vegetation and felled logs, branches, and detritus/debris; (3) 

heavy understory of leaf litter with duff overlying soils; (4) 

proximity to suitable moisture; and (5) a year-round supply of 

invertebrate prey. Williams and Harpster (2001) concluded that the best 

habitat for the shrew was found in ``riparian and wetland communities 

with an abundance of leaf litter (humus) or dense herbaceous cover.'' 

They also determined that ``although moist soil in areas with an 

overstory of willows or cotton woods appears to be favored,'' they 

doubted that such overstory was essential. Based on changes in the 

native habitat composition and structure and information on habitat 

descriptions of where the shrew have been found, we include the moist 

vegetative communities surrounding permanent and semipermanent wetlands 

in our description of shrew critical habitat because they are the 

habitat requirements needed by the shrew.



Food



    The specific feeding and foraging habits of the shrew are not well 

known. In general, shrews primarily feed on insects and other animals, 

mostly invertebrates (Harris 1990; Williams 1991; Maldonado 1992). Food 

probably is not cached and stored, so the shrew must forage 

periodically day and night to maintain its high metabolic rate.

    The vegetation communities described above provide a diversity of 

structural layers and plant species and likely contribute to the 

availability of prey for shrews. Therefore, conservation of the shrew 

should include consideration of the habitat needs of prey species, 

including structural and species diversity and seasonal



[[Page 3450]]



availability. Shrew habitat must provide sufficient prey base and cover 

from which to hunt in an appropriate configuration and proximity to 

nesting sites. The shrew feeds indiscriminately on available larvae and 

adults of several species of aquatic and terrestrial insects. An 

abundance of invertebrates is associated with moist habitats, such as 

wetland edges, riparian habitat, or edges of lakes, ponds, or drainages 

that possess a dense vegetative cover (Owen and Hoffmann 1983). 

Therefore, to be considered essential, critical habitat consists of a 

vegetative structure that contains suitable soil moisture capable of 

supporting a diversity of invertebrates so that there is a substantial 

food source to sustain occurrences of the shrew.



Water



    Open water does not appear to be necessary for the survival of the 

shrew. The habitat where the shrew have been found contain areas with 

both open water and mesic environments (Maldonado 1992; Williams and 

Harpster 2001). The availability of water contributes to improved 

vegetation structure and diversity which improves cover availability. 

The presence of water also attracts potential prey species improving 

prey availability.



Reproduction and Rearing of Offspring



    Little is known about the reproductive needs of the shrew. The 

breeding season begins in February or March and ends in May or June, 

but can be extended depending on habitat quality and available moisture 

(Paul Collins, Santa Barbara Museum of Natural History, in litt. 2000). 

The edges of wetland or marshy habitat allow the shrew to provide 

hospitable environments and have a larger prey base to give birth and 

raise its young. The shrew's preference for dense vegetative 

understories also provides cover from predators. Dense vegetation also 

allows for the soil moisture necessary for a consistent supply of 

terrestrial and aquatic insect prey (Kirkland 1991; Ma and Talmage 

2001; Freas 1990; Maldonado 1992; Maldonado et al. 1998).

    The areas proposed for designation as critical habitat for the 

shrew consist of occupied habitat with the primary constituent elements 

that are essential for adult and juvenile shrews to maintain and 

sustain occurrences throughout their range. The PCEs below describe the 

physical and biological features essential to shrew conservation. 

Special management, such as habitat rehabilitation efforts (e.g., 

provision of an adequate and reliable water source and restoration of 

riparian habitat), may be necessary in the unit designated.



Primary Constituents for the Buena Vista Lake Shrew



    Based on our current knowledge of the life history, biology, and 

ecology of the species and the requirements of the habitat to sustain 

the essential life history functions of the species, we have determined 

that the shrew's primary constituent elements are:

    (i) Riparian or wetland communities supporting a complex vegetative 

structure with a thick cover of leaf litter or dense mats of low-lying 

vegetation; and

    (ii) Suitable moisture supplied by a shallow water table, 

irrigation, or proximity to permanent or semipermanent water; and

    (iii) A consistent and diverse supply of prey.

    The requisite riparian and wetland habitat is essential for the 

shrew because it provides space and cover necessary to sustain the 

entire life cycle needs of the shrew, as well as its invertebrate prey. 

The shrew is preyed upon by many large vertebrate carnivores as well as 

by avian predators. Therefore, a dense vegetative structure provides 

the cover or shelter essential for evading predators as well as serving 

as habitat for breeding and reproduction, and allows for the protection 

and rearing of offspring and the growth of adult shrews.



Criteria Used To Identify Critical Habitat



    We are designating critical habitat on lands that we have 

determined essential to the conservation of the Buena Vista Lake shrew. 

These areas have the primary constituent elements described above. 

Protecting a variety of habitats and conditions that contain the PCEs 

will allow for the conservation of the species because it will increase 

the ability of the shrew to survive stochastic environmental (e.g., 

fire), natural (e.g., predators), demographic (e.g., low recruitment), 

or genetic (e.g., inbreeding) events, therefore lowering the 

probability of extinction. Suitable habitat within the historic range 

is extremely limited and remaining habitats are vulnerable to both 

anthropogenic and natural threats because so few extant occurrences of 

the shrew exist, and the number of individuals at each location is 

estimated to be low. Also, these areas provide habitats essential for 

the maintenance and growth of self-sustaining populations and 

metapopulations (a set of local populations where typically migration 

from one local population to other areas containing suitable habitat is 

possible) of shrews throughout its range. Therefore, these areas are 

essential to the conservation of the shrew.

    We are designating critical habitat in the units that we have 

determined are essential to the conservation of the shrew, except for 

those excluded under Section 4(b)(2). In our development of critical 

habitat for the shrew, we used the following methods. The unit being 

designated has the primary constituent elements described above.

    Whenever possible, areas not containing the primary constituent 

elements, such as developed areas, were not included in the boundaries 

of critical habitat. However, we did not map critical habitat in enough 

detail to exclude all developed areas, or other areas unlikely to 

contain the primary constituent elements essential for the conservation 

of the Buena Vista Lake shrew. Areas within the boundaries of the 

mapped units, such as buildings, roads, parking lots, railroad tracks, 

canals, and other paved areas, are excluded from the designation by 

text, but these exclusions do not show on the maps because their scale 

is too small.

    In summary, we are designating one critical habitat unit within the 

known geographical area occupied by the species. The primary 

constituent elements are present and the shrew is extant in this unit. 

Additional areas outside of the geographic area currently known to be 

occupied by the shrew were evaluated to determine if they are essential 

to the conservation of the shrew and should be included in the final 

critical habitat designation. Based upon our evaluation of available 

information, which included the Recovery Plan, survey data, and 

historical records, we do not find any areas outside of the known 

geographical area occupied by the shrew to be essential to the 

conservation of the species at this time.



Special Management Considerations or Protections



    When designating critical habitat, we assess whether the areas 

determined to be essential for conservation may require special 

management considerations or protections. As we undertake the process 

of designating critical habitat for a species, we first evaluate lands 

defined by those physical and biological features essential to the 

conservation of the species for inclusion in the designation pursuant 

to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined 

by those features to assess whether they may require special management 

considerations or protection.

    The majority of locations supporting the shrew are on private land, 

and are



[[Page 3451]]



subject to a change in the water supply, which maintains the current 

habitat. Elevated concentrations of selenium also represent a serious 

environmental threat to the species (Service 2002). High levels of 

selenium have been measured in recharge and evaporation ponds adjacent 

to areas where the shrew occurs (California Department of Water 

Resources in litt. 1997). Potential dietary selenium concentrations 

from sampled aquatic insects are within ranges toxic to small mammals 

(Olson 1986) and could include, but may not be limited to, reduced 

reproductive output or premature death (Eisler 1985). The shrew also 

faces high risks of extinction from random catastrophic events (e.g., 

floods, drought, and inbreeding) (Service 1998). These threats and 

others mentioned above would render the habitat less suitable for the 

shrew, and special management may be needed to address them.

    The critical habitat unit identified in this final designation may 

require special management considerations or protection to maintain a 

functioning hydrological regime to maintain the requisite riparian and 

wetland habitat, which is essential for the shrew by providing space 

and cover necessary to sustain the entire life cycle needs of the 

shrew, as well as its invertebrate prey. This designated unit is 

threatened by activities that may result in the alteration of the 

moisture regime which would lead to reduced water quality or supply, 

loss of suitable invertebrate supply for feeding and loss of complex 

vegetative structure for cover.

    We have determined this unit may require special management or 

protection, due to the existing threats to the shrew, and because no 

long-term protection or management plan exists for this unit. Absent 

special management or protection, this unit is susceptible to existing 

threats and activities such as the ones listed in the ``Effects of 

Critical Habitat'' section, which could result in degradation and 

disappearance of the shrew populations and their habitat.



Critical Habitat Designation



    We are designating one (1) unit as critical habitat for the shrew. 

This critical habitat unit described below constitutes our best 

assessment at this time of the areas essential for the conservation of 

the shrew. The unit being designated as critical habitat for the shrew 

is the Kern Lake Preserve Unit.

    The approximate area encompassed within the critical habitat unit 

is shown in Table 2.



                      Table 2.--Final Critical Habitat Units for the Buena Vista Lake Shrew

----------------------------------------------------------------------------------------------------------------

                                                                 Federal    State     Local    Private    Total

                                                               -------------------- agencies -------------------

                             Unit                                                  ----------

                                                                 ac   ha   ac   ha   ac   ha   ac   ha   ac   ha

----------------------------------------------------------------------------------------------------------------

1. Kern Lake Preserve.........................................  ...  ...  ...  ...  ...  ...   84   34   84   34

                                                               ------

    Grand Total...............................................    0    0    0    0    0    0   84   34   84   34

----------------------------------------------------------------------------------------------------------------



    The areas essential for the shrew include an area within the 

species' range in California. Below is a brief description of the unit 

and the reasons why it is essential for the conservation of the shrew.



Unit 1: Kern Lake Preserve Unit



    Modifications were made to this unit which resulted in the 

exclusion of a canal and the canal levee banks from the designation. 

This exclusion resulted in the reduction of critical habitat 

designation from 90 ac (36 ha) to 84 ac (34 ha).

    The Kern Lake Unit is approximately 84 acres (34 ha) and is found 

in the southern portion of the San Joaquin Valley in southwestern Kern 

County, approximately 16 miles south of Bakersfield. This unit lies 

between Hwy 99 and Interstate 5, south of Herring Road near the New Rim 

Ditch. This unit is essential to the conservation of the species 

because it represents one of five remaining areas known to support an 

extant population of the shrew that also contains the PCEs. The Kern 

Lake area was formerly managed by the Nature Conservancy for the 

Boswell Corporation, and was once thought to contain the last remaining 

population of the shrew. This area does not have a conservation 

easement and is managed by the landowners. We are unaware of any plans 

to develop this site.

    The Kern Lake Unit is situated at the edge of the historic Kern 

Lake. Since the advent of reclamation and development, the surrounding 

lands have seen intensive cattle and sheep ranching and, more recently, 

cotton and alfalfa farming. While Kern Lake is now only a dry lake bed, 

the unit's ``Gator Pond'' site and wet alkali meadows stand as unique 

reminders of their biological heritage.

    A portion of the runoff from the surrounding hills travels through 

underground aquifers, surfacing as artesian springs at Gator Pond. The 

heavy clay soils support a distinctive assemblage of native species. An 

island of native vegetation situated among a sea of cotton fields, this 

Unit contains three ecologically significant natural communities: 

freshwater marsh, alkali meadow, and iodine bush scrub. Gator Pond, in 

the sanctuary's eastern quarter, lies near the shoreline of the 

historic Kern Lake.

    Shrews were discovered at the Kern Lake Unit in 1986 near a 

community of saltbushes and saltgrass. In 1988 and 1989, 25 shrews were 

captured in low-lying, riparian and/or wetland habitats with an 

overstory of cottonwoods and willows, abundant ground litter, and moist 

soil (Center for Conservation Biology 1990).

    The Kern Lake Unit may require special management considerations or 

protection to maintain a functioning hydrological regime to maintain 

the requisite riparian and wetland habitat, which is essential for the 

shrew by providing space and cover necessary to sustain the entire life 

cycle needs of the shrew, as well as its invertebrate prey. This 

designated unit is threatened by activities that may result in the 

alteration of the moisture regime which would lead to reduced water 

quality or supply, loss of suitable invertebrate supply for feeding and 

loss of complex vegetative structure for cover. Furthermore, no long-

term protection or management plan exists for this unit.



Effects of Critical Habitat Designation



Section 7 Consultation



    Section 7 of the Act requires Federal agencies, including the 

Service, to ensure that actions they fund, authorize, or carry out are 

not likely to destroy or adversely modify critical habitat.

    Section 7(a) of the Act requires Federal agencies, including the 

Service, to evaluate their actions with respect to



[[Page 3452]]



any species that is proposed or listed as endangered or threatened and 

with respect to its critical habitat, if any is proposed or designated. 

Regulations implementing this interagency cooperation provision of the 

Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act 

requires Federal agencies to confer with us on any action that is 

likely to jeopardize the continued existence of a proposed species or 

result in destruction or adverse modification of proposed critical 

habitat. Conference reports provide conservation recommendations to 

assist the agency in eliminating conflicts that may be caused by the 

proposed action. The conservation recommendations in a conference 

report are advisory. If a species is listed or critical habitat is 

designated, section 7(a)(2) requires Federal agencies to ensure that 

activities they authorize, fund, or carry out are not likely to 

jeopardize the continued existence of such a species or to destroy or 

adversely modify its critical habitat. If a Federal action may affect a 

listed species or its critical habitat, the responsible Federal agency 

(action agency) must enter into consultation with us. Through this 

consultation, the action agency ensures that the permitted actions do 

not destroy or adversely modify critical habitat.

    When we issue a biological opinion concluding that a project is 

likely to result in the destruction or adverse modification of critical 

habitat, we also provide reasonable and prudent alternatives to the 

project, if any are identifiable. ``Reasonable and prudent 

alternatives'' are defined at 50 CFR 402.02 as alternative actions 

identified during consultation that can be implemented in a manner 

consistent with the intended purpose of the action, that are consistent 

with the scope of the Federal agency's legal authority and 

jurisdiction, that are economically and technologically feasible, and 

that the Director believes would avoid destruction or adverse 

modification of critical habitat. Reasonable and prudent alternatives 

can vary from slight project modifications to extensive redesign or 

relocation of the project. Costs associated with implementing a 

reasonable and prudent alternative are similarly variable.

    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 

consultation on previously reviewed actions in instances where critical 

habitat is subsequently designated and the Federal agency has retained 

discretionary involvement or control over the action or such 

discretionary involvement or control is authorized by law. 

Consequently, some Federal agencies may request reinitiation of 

consultation or conference with us on actions for which formal 

consultation has been completed, if those actions may affect designated 

critical habitat or adversely modify or destroy proposed critical 

habitat.

    We may issue a formal conference report if requested by a Federal 

agency. Formal conference reports on proposed critical habitat contain 

an opinion that is prepared according to 50 CFR 402.14, if critical 

habitat were designated. We may adopt the formal conference report as 

the biological opinion when the critical habitat is designated, if no 

substantial new information or changes in the action alter the content 

of the opinion (see 50 CFR 402.10(d)).

    Activities on Federal lands that may affect the shrew or its 


critical habitat will require section 7 consultation. Activities on 

private or State lands requiring a permit from a Federal agency, such 

as a permit from the U.S. Army Corps of Engineers under section 404 of 

the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or 

some other Federal action, including funding (e.g., Federal Highway 

Administration or Federal Emergency Management Agency funding), will 

also continue to be subject to the section 7 consultation process. 

Federal actions not affecting listed species or critical habitat and 

actions on non-Federal and private lands that are not federally funded, 

authorized, or permitted do not require section 7 consultation.

    Section 4(b)(8) of the Act requires us to briefly evaluate and 

describe in any proposed or final regulation that designates critical 

habitat those activities involving a Federal action that may destroy or 

adversely modify such habitat, or that may be affected by such 

designation. Activities that may destroy or adversely modify critical 

habitat include those that appreciably reduce the value of critical 

habitat to the shrew. We note that such activities may also jeopardize 

the continued existence of the species.

    To properly portray the effects of critical habitat designation, we 

must first compare the section 7 requirements for actions that may 

affect critical habitat with the requirements for actions that may 

affect a listed species. Section 7 prohibits actions funded, 

authorized, or carried out by Federal agencies from jeopardizing the 

continued existence of a listed species or destroying or adversely 

modifying the listed species' critical habitat. Actions likely to 

``jeopardize the continued existence'' of a species are those that 

would appreciably reduce the likelihood of the species' survival and 

recovery. Actions likely to ``destroy or adversely modify'' critical 

habitat are those that would appreciably reduce the value of critical 

habitat to the listed species.

    Federal agencies already consult with us on activities in areas 

currently occupied by the species to ensure that their actions do not 

jeopardize the continued existence of the species. These actions 

include, but are not limited to:

    (1) Actions that would affect riparian or wetland areas by any 

Federal Agency. Such activities could include, but are not limited to, 

flood control or changes in water banking activities. These activities 

could eliminate or reduce the habitat necessary for the reproduction, 

sheltering, or growth of Buena Vista Lake shrews.

    (2) Actions that would affect the regulation of water flows by any 

Federal agency. Such activities could include, but are not limited to, 

damming, diversion, and channelization. These activities could 

eliminate or reduce the habitat necessary for the reproduction, 

sheltering or growth of Buena Vista Lake shrews.

    (3) Actions that would involve regulations funded or permitted by 

the Federal Highway Administration. (We note that the Federal Highway 

Administration does not fund the routine operations and maintenance of 

the State highway system.). Such activities could include, but are not 

limited to, new road construction and right-of-way designation. These 

activities could eliminate or reduce riparian or wetland habitat along 

river crossings necessary for reproduction, sheltering or growth of 

Buena Vista Lake shrews.

    (4) Actions that would involve regulation of airport improvement 

activities by the Federal Aviation Administration. Such activities 

could include, but are not limited to, the creation or expansion of 

airport facilities. These activities could eliminate or reduce riparian 

or wetland habitat necessary for the reproduction, sheltering, 

foraging, or growth of Buena Vista Lake shrews.

    (5) Actions that would involve licensing of construction of 

communication sites by the Federal Communications Commission. Such 

activities could include, but are not limited to, the installation of 

new radio equipment and facilities. These activities could eliminate or 

reduce the habitat necessary for the reproduction, sheltering, 

foraging, or growth of Buena Vista Lake shrews.

    (6) Actions that would involve funding of activities by the U.S.



[[Page 3453]]



Environmental Protection Agency, Department of Energy, Federal 

Emergency Management Agency, Federal Highway Administration, or any 

other Federal agency. Such activities could include, but are not 

limited to, activities associated with the cleaning up of Superfund 

sites, erosion control activities, and flood control activities. These 

activities could eliminate or reduce upland and/or aquatic habitat for 

Buena Vista Lake shrews.

    (7) Actions that would affect waters of the United States by the 

Army Corps under section 404 of the Clean Water Act. Such activities 

could include, but are not limited to, placement of fill into wetlands. 

These activities could eliminate or reduce the habitat necessary for 

the reproduction, feeding, or growth of Buena Vista Lake shrews.

    All lands within this designation as critical habitat are within 

the historical geographic area occupied by the species, and are likely 

to be used by the shrew whether for foraging, breeding, growth of 

juveniles, dispersal, migration, genetic exchange, or sheltering. We 

consider all lands included in this designation to be essential to the 

survival of the species. Federal agencies already consult with us on 

activities in areas currently occupied by the species, and also one 

whether the species may be affected by the action, to ensure that their 

actions do not jeopardize the continued existence of the species. 

Therefore, we believe that the designation of critical habitat is not 

likely to result in a significant regulatory burden above that already 

in place due to the presence of the listed species. Few additional 

consultations are likely to be conducted due to the designation of 

critical habitat.



Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 

the Act



    Section 3(5)(A) of the Act defines critical habitat as the specific 

areas within the geographic area occupied by the species on which are 

found those physical and biological features (i) essential to the 

conservation of the species and (ii) which may require special 

management considerations or protection. Therefore, areas within the 

geographic area occupied by the species that do not contain the 

features essential for the conservation of the species are not, by 

definition, critical habitat. Similarly, areas within the geographic 

area occupied by the species that do not require special management or 

protection also are not, by definition, critical habitat. To determine 

whether an area requires special management, we first determine if the 

essential features located there generally require special management 

to address applicable threats. If those features do not require special 

management, or if they do in general but not for the particular area in 

question because of the existence of an adequate management plan or for 

some other reason, then the area does not require special management.

    We consider a current plan to provide adequate management or 

protection if it meets three criteria: (1) The plan is complete and 

provides a conservation benefit to the species (i.e., the plan must 

maintain or provide for an increase in the species' population, or the 

enhancement or restoration of its habitat within the area covered by 

the plan); (2) the plan provides assurances that the conservation 

management strategies and actions will be implemented (i.e., those 

responsible for implementing the plan are capable of accomplishing the 

objectives, and have an implementation schedule or adequate funding for 

implementing the management plan); and (3) the plan provides assurances 

that the conservation strategies and measures will be effective (i.e., 

it identifies biological goals, has provisions for reporting progress, 

and is of a duration sufficient to implement the plan and achieve the 

plan's goals and objectives).

    Further, section 4(b)(2) of the Act states that critical habitat 

shall be designated, and revised, on the basis of the best available 

scientific data after taking into consideration the economic impact, 

the effect on national security, and any other relevant impact of 

specifying any particular area as critical habitat. An area may be 

excluded from critical habitat if it is determined, following an 

analysis, that the benefits of such exclusion outweigh the benefits of 

specifying a particular area as critical habitat, unless the failure to 

designate such area as critical habitat will result in the extinction 

of the species.

    In our critical habitat designations, we use both the provisions 

outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those 

specific areas that we are considering proposing designating as 

critical habitat as well as for those areas that are formally proposed 

for designation as critical habitat. Lands we have found do not meet 

the definition of critical habitat under section 3(5)(A) or have 

excluded pursuant to section 4(b)(2) include those covered by the 

following types of plans if they provide assurances that the 

conservation measures they outline will be implemented and effective: 

(1) Legally operative HCPs that cover the species, (2) draft HCPs that 

cover the species and have undergone public review and comment (i.e., 

pending HCPs), (3) Tribal conservation plans that cover the species, 

(4) State conservation plans that cover the species, and (5) National 

Wildlife Refuge System Comprehensive Conservation Plans.



Relationship of Critical Habitat to the Kern National Wildlife Refuge 

Unit



    We are excluding the Kern National Wildlife Refuge.

    The Kern National Wildlife Refuge has an approved and signed 

Comprehensive Conservation Plan (CCP) (Service 2004a) that provides for 

the protection and management of all trust resources, including 

federally listed species and sensitive natural habitats. One goal of 

the CCP for the Kern National Wildlife Refuge is to ``restore and 

maintain representative examples of Tulare Basin riparian and saltbush 

scrub habitats on Kern Refuge.'' To reach this goal, the approved CCP 

provides for a water source to sustain riparian vegetation and remnant 

sloughs that support the Buena Vista Lake shrew through the flooding 

and managing of riparian areas in the fall, winter, and early spring, 

as well as irrigating trees in riparian areas during the summer months. 

As part of the approved CCP, an additional 15 acres of riparian 

vegetation would be planted and maintained to provide habitat for the 

shrew. The plan also calls for the eradication of salt cedar from the 

riparian areas and restoration of riparian areas through planting of 

riparian trees, shrubs, and forbs native to riparian forests in the 

area. This plan has already undergone a Section 7 consultation that has 

evaluated the plan for consistency with the conservation needs of the 

species (Service 2004b). Funding for the implementation of the CCP 

comes from the Kern Refuge Complex's annual operation budget. 

Management items that benefit the shrew will be accomplished by 

existing staff and existing annual budget.

    The Refuge has completed a Comprehensive Conservation Plan (CCP) 

that addresses the shrew, the CCP has undergone section 7 review, and 

it clearly provides a conservation benefit to the species. The Service 

has a statutory mandate to manage the refuge for the conservation of 

listed species, and the CCP provides a detailed plan of how it will do 

so. The Refuge accordingly does not meet the definition of critical 

habitat under section 3(5)(A) of the Act because management plans 

already in place provide for the conservation of the shrew, and no 

special management or protection will be required.



[[Page 3454]]



Relationship of Critical Habitat to the Goose Lake Project



    Section 4(b)(2) of the Act requires us to consider other relevant 

impacts, in addition to economic impacts, of designating critical 

habitat. Section 7 of the Act authorizes us to issue permits for the 

take of listed wildlife species incidental to otherwise lawful 

activities. An incidental take permit application must be supported by 

a Biological Assessment that identifies conservation measures that the 

permittee agrees to implement for the species to minimize and mitigate 

the impacts of the permitted incidental take.

    One proposed critical habitat unit (Goose Lake Unit) warrants 

exclusion from the final designation of critical habitat under Section 

4(b)(2) of the Act based on the special management considerations and 

protections afforded the Buena Vista Lake shrew habitat through the 

implementation of a Biological Opinion developed through a Section 7 

consultation on a wetlands restoration and enhancement project funded 

through the North American Wetlands Conservation Act (NAWCA) in the 

Goose Lake bottoms. We believe the benefits excluding this wetlands 

restoration and enhancement project from the critical habitat 

designations will outweigh the benefits of including them. The 

following represents our rationale for excluding the Goose Lake Unit 

for Buena Vista Lake shrew from the final designated critical habitat.



(1) Benefits of Inclusion



    Designation of critical habitat provides important information on 

those habitats and their primary constituent elements that are 

essential to the conservation of the species. This information is 

particularly important to any Federal agency, State, county, local 

jurisdiction, conservation organization, or private landowner that may 

be evaluating adverse actions or implementing conservation measures 

that involve those habitats. The benefit of a critical habitat 

designation would ensure that any actions authorized, funded, or 

carried out by a Federal agency would not likely destroy or adversely 

modify any critical habitat. Without critical habitat, some site-

specific projects might not trigger consultation requirements under the 

Act in areas where species are not currently present; in contrast, 

Federal actions in areas occupied by listed species would still require 

consultation under Section 7 of the Act. We consider all habitats 

within this designation to be occupied. Therefore, we anticipate little 

additional regulatory benefit from including these lands in critical 

habitat beyond what is already provided by the existing Section 7 nexus 

for habitat areas occupied by the listed extant species.

    Where conservation measures are in place, our experience indicates 

that this benefit is small or nonexistent. The benefits of excluding 

projects with an approved biological opinion normally outweigh the 

benefits of inclusion. The principal benefit of any designated critical 

habitat is that federally funded or authorized activities in such 

habitat that may affect the habitat require consultation under Section 

7 of the Act. Such consultation would ensure that adequate protection 

is provided to avoid adverse modification of critical habitat. We have 

found that if a project has completed its Section 7 consultation then 

the benefit of excluding an area from critical habitat can be greater 

than not designating the area. A Biological Opinion was developed 

through a Section 7 consultation on a wetlands restoration and 

enhancement project that includes areas in the Goose Lake Unit. In the 

Biological Opinion, we determined that the project would ensure the 

long-term survival of the covered species in the plan area, including 

the shrew. By implementing the Biological Opinion, this project 

includes management measures and protections for conservation of lands 

designed to protect, restore, and enhance their value as habitat for 

the Buena Vista Lake shrew. The project is funded through the NAWCA, 

which mandates a management agreement for the project.

    Another possible benefit to including these lands is that the 

designation of critical habitat can serve to educate landowners and the 

public regarding the potential conservation values of an area. This may 

focus and contribute to conservation efforts of other parties by 

clearly delineating areas of high conservation value for certain 

species. However, we believe that this education benefit has largely 

been achieved. The additional educational benefits, which might arise 

from critical habitat designation, are largely accomplished through the 

proposed rule and request for public comment that accompanied the 

development of this regulation. We have accordingly determined that the 

benefits of designating critical habitat on this property covered by 

the described conservation measures above are small.



(2) Benefits of Exclusion



    The Service believes that Buena Vista Lake shrews within the 

properties with conservation strategies will benefit substantially from 

landowner voluntary management actions due to a reduction in 

competition with non-native predators, a reduction in risk of 

chemically altered aquatic habitats, a reduction in risk of loss of 

aquatic and upland habitat, and the enhancement and creation of aquatic 

habitat. The conservation benefits of critical habitat are primarily 

regulatory or prohibitive in nature. Where consistent with the 

discretion provided by the Act, the Service believes it is necessary to 

implement policies that provide positive incentives to private 

landowners to voluntarily conserve natural resources and that remove or 

reduce disincentives to conservation. Thus, we believe it is essential 

for the recovery of the Buena Vista Lake shrew to build on continued 

conservation activities such as these with a proven partner, and to 

provide positive incentives for other private landowners who might be 

considering implementing voluntary conservation activities but have 

concerns about incurring incidental regulatory or economic impacts.

    While the consultation requirement associated with critical habitat 

on the Goose Lake Unit would add little benefit, it would require the 

use of resources to ensure regulatory compliance that could otherwise 

be used for on the ground management of the targeted listed or 

sensitive species. The Goose Lake Unit is currently protected under the 

Conservation Measures outlined for long-term management in a Section 7 

Biological Opinion that was signed for the project in November 2004. 

The project is funded by NAWCA, which provides assurances for a 25-year 

long-term agreement. Through this NAWCA project and Section 7 

consultation, Goose Lake project will enhance and restore wetlands and 

will be managed in this manner for the 25-year term of the project. The 

conservation measures outlined in the biological opinion will protect 

the shrew during construction and maintenance of the project and the 

wetlands restored and enhanced by the project will provide essential 

habitat for the shrew.



The Benefits of Exclusion Outweigh the Benefits of Inclusion



    Based on the above considerations, and consistent with the 

direction provided in section 4(b)(2) of the Act and the Federal 

District Court decision concerning critical habitat (Center for 

Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan. 

13, 2003), we have determined that the benefits of excluding the 

Gooselake Holding Company property in Unit 2 as critical



[[Page 3455]]



habitat outweigh the benefits of including it as critical habitat for 

the Buena Vista Lake shrew.

    This conclusion is based on the following factors:

    (1) The Gooselake Holding Company property is currently operating 

under a Section 7 biological opinion in cooperation with the Service 

and Ducks Unlimited to implement conservation measures and achieve 

important conservation goals through the restoration and enhancement of 

important riparian and wetland habitat for the Buena Vista Lake shrew.

    (2) Given the current conservation strategies created and 

implemented by the Gooselake Holding Company, the Service believes the 

additional regulatory and educational benefits of including these lands 

as critical habitat are relatively small. The designation of critical 

habitat can serve to educate the general public as well as conservation 

organizations regarding the potential conservation value of an area, 

but this goal is already being accomplished through the identification 

of this area in the management plans described above. Likewise, there 

will be little additional Federal regulatory benefit to the species 

because (a) this unit, if included, would likely not be adversely 

affected to any significant degree by Federal activities requiring 

section 7 consultation, and (b) all units are already occupied by the 

Buena Vista Lake shrew, and a section 7 nexus already exists. The 

Service is unable to identify any other potential benefits associated 

with critical habitat for these properties.

    (3) Excluding these privately owned lands with conservation 

strategies from critical habitat may, by way of example, provide 

positive social, legal, and economic incentives to other non-Federal 

landowners who own lands that could contribute to listed species 

recovery if voluntary conservation measures on these lands are 

implemented.

    In conclusion, we find that the exclusion of critical habitat on 

Gooselake Holding Company would most likely have a net positive 

conservation effect on the recovery and conservation of the Buena Vista 

Lake shrew when compared to the positive conservation effects of a 

critical habitat designation. As described above, the overall benefits 

to these species of a critical habitat designation for these properties 

are relatively small. In contrast, we believe that this exclusion will 

enhance our existing partnership with these landowners, and it will set 

a positive example and provide positive incentives to other non-Federal 

landowners who may be considering implementing voluntary conservation 

activities on their lands. We conclude there is a higher likelihood of 

beneficial conservation activities occurring in these and other areas 

without designated critical habitat than there would be with designated 

critical habitat on these properties.



Relationship of Critical Habitat to the Kern Fan Recharge Area Unit



    Section 4(b)(2) of the Act requires us to consider other relevant 

impacts, in addition to economic impacts, of designating critical 

habitat. One proposed critical habitat unit (Kern Fan Recharge Area 

Unit) warrants exclusion from the final designation of critical habitat 

under Section 4(b)(2) of the Act based on the special management 

considerations and protections afforded the Buena Vista Lake shrew 

habitat through a Management Plan for the Kern Fan Recharge Area 

developed the City of Bakersfield. We have determined that the benefits 

of excluding the Kern Fan Unit from the critical habitat designation 

will outweigh the benefits of including it in the final designation. 

The following represents our rationale for excluding the Kern Fan 

Recharge Area Unit for Buena Vista Lake shrew from the final designated 

critical habitat.

    Portions of the recharge area are flooded sporadically, forming 

fragmented wetland communities throughout the area. Narrow strips of 

riparian communities exist on both sides of the Kern River. The plant 

communities of the Kern Fan Water Recharge Area include a mixture of 

Valley saltbush scrub, Great Valley mesquite shrub, and some remnant 

riparian areas. Remnant riparian areas are found throughout the water 

bank area, but are mainly located near the main channel of the Kern 

River. The Buena Vista Lake shrew has been documented on the Kern Fan 

Water Recharge Unit. This Unit is currently protected under a Service-

approved Management Plan developed by the City of Bakersfield that 

includes yearly monitoring and Service approval of any changes.



(1) Benefits of Inclusion



    Designation of critical habitat provides important information on 

those habitats and their primary constituent elements that are 

essential to the conservation of the species. This information is 

particularly important to any Federal agency, State, county, local 

jurisdiction, conservation organization, or private landowner that may 

be evaluating adverse actions or implementing conservation measures 

that involve those habitats. The benefit of a critical habitat 

designation would ensure that any actions authorized, funded, or 

carried out by a Federal agency would not likely destroy or adversely 

modify any critical habitat. Without critical habitat, some site-

specific projects might not trigger consultation requirements under the 

Act in areas where species are not currently present; in contrast, 

Federal actions in areas occupied by listed species would still require 

consultation under section 7 of the Act. We consider all habitats 

within this designation to be occupied. Therefore, we anticipate little 

additional regulatory benefit from including these lands in critical 

habitat beyond what is already provided by the existing section 7 nexus 

for habitat areas occupied by the listed extant species.

    The benefits of including areas with approved management plans in 

critical habitat are normally small. The principal benefit of any 

designated critical habitat is that federally funded or authorized 

activities in such habitat that may affect it require consultation 

under section 7 of the Act. Such consultation would ensure that 

adequate protection is provided to avoid adverse modification of 

critical habitat. Where conservation measures are in place, our 

experience indicates that this benefit is small or nonexistent. 

Currently approved management plans are already designed to ensure the 

long-term survival of covered species within the plan area. Management 

plans include management measures and protections for conservation 

lands designed to protect, restore, and enhance their value as habitat 

for the Buena Vista Lake shrew.

    Another possible benefit to including these lands is that the 

designation of critical habitat can serve to educate landowners and the 

public regarding the potential conservation values of an area. This may 

focus and contribute to conservation efforts of other parties by 

clearly delineating areas of high conservation value for certain 

species. However, we believe that this education benefit has largely 

been achieved. The additional educational benefits, which might arise 

from critical habitat designation, are largely accomplished through the 

proposed rule and request for public comment that accompanied the 

development of this regulation. We have accordingly determined that the 

benefits of designating critical habitat on this property covered by 

the described conservation measures above are small.



[[Page 3456]]



(2) Benefits of Exclusion



    Approximately 80 percent of the occurrence records of the Buena 

Vista Lake shrew are on private lands. Proactive voluntary conservation 

efforts by private or non-Federal entities are necessary to prevent the 

extinction and promote the recovery of the Buena Vista Lake shrew in 

the Tulare Basin.

    We have determined that the Buena Vista Lake shrew within the 

properties with management plans or conservation strategies that 

protect or enhance the conservation of the species will benefit 

substantially from voluntary landowner management actions due to an 

enhancement and creation of riparian and wetland habitat and a 

reduction in risk of loss of riparian habitat. The conservation 

benefits of critical habitat are primarily regulatory or prohibitive in 

nature. Where consistent with the discretion provided by the Act, the 

Service believes it is necessary to implement policies that provide 

positive incentives to private landowners to voluntarily conserve 

natural resources and that remove or reduce disincentives to 

conservation (Wilcove et al. 1998). Thus, we believe it is essential 

for the recovery of the Buena Vista Lake shrew to build on continued 

conservation activities such as these with a proven partner, and to 

provide positive incentives for other private landowners who might be 

considering implementing voluntary conservation activities but have 

concerns about incurring incidental regulatory or economic impacts.

    The City of Bakersfield manages the Kern Fan Recharge Area in such 

a way as to promote the conservation of the Buena Vista Lake shrew. The 

Service-approved management plan developed by the City of Bakersfield 

includes management of the area for the benefit of the shrew. These 

activities include limiting public access to the site, cessation of 

grazing practices, protection of the site from development or 

encroachment, maintenance of the site as permanent open space that has 

been left predominantly in its natural vegetative state, and the 

spreading of flood waters which promotes the moisture regime and 

wetland and riparian vegetation determined to be essential for the 

conservation of the shrew. Annual monitoring of the site will also be 

implemented to promote adaptive management of the area for the optimal 

enhancement of wetland and riparian vegetation for the benefit of the 

shrew. Funding for the implementation of the habitat management plan is 

assured through the annual fiscal budget of the City of Bakersfield's 

Water Resource Department.



(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion



    Based on the above considerations, and consistent with the 

direction provided in section 4(b)(2) of the Act and the Federal 

District Court decision concerning critical habitat (Center for 

Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan. 

13, 2003), we have determined that the benefits of excluding the City 

of Bakersfield property in Unit 3 from critical habitat outweigh the 

benefits of including them as critical habitat for the Buena Vista Lake 

shrew.

    This conclusion is based on the following factors:

    (1) The City of Bakersfield property is currently operating under a 

Service-approved Management Plan to implement conservation measures and 

achieve important conservation goals through the management of water 

banking operations to achieve the optimal flooding regime for the 

enhancement of important riparian and wetland habitat for the Buena 

Vista Lake shrew.

    (2) Given the past and current conservation strategies created and 

implemented by the City of Bakersfield, the Service believes the 

additional regulatory and educational benefits of including these lands 

as critical habitat are relatively small. The Service anticipates that 

the conservation strategies will continue to be implemented in the 

future, and that the funding for these activities will continue to be 

available because the City of Bakersfield is enterprise funded and 

receives an annual budget for the operation and maintenance of the Kern 

Fan Recharge Area. The designation of critical habitat can serve to 

educate the general public as well as conservation organizations 

regarding the potential conservation value of an area, but this goal is 

already being accomplished through the identification of this area in 

the management plans described above. Likewise, there will be little 

additional Federal regulatory benefit to the species because (a) there 

is a low likelihood that these proposed critical habitat units will be 

negatively affected to any significant degree by Federal activities 

requiring section 7 consultation, and (b) all units are already 

occupied by the Buena Vista Lake shrew and a section 7 nexus already 

exists. The Service is unable to identify any other potential benefits 

associated with critical habitat for these properties.

    (3) Excluding these privately owned lands with conservation 

strategies from critical habitat may, by way of example, provide 

positive social, legal, and economic incentives to other non-Federal 

landowners who own lands that could contribute to listed species 

recovery if voluntary conservation measures on these lands are 

implemented.

    In conclusion, we find that the exclusion of critical habitat on 

the City of Bakersfield's Kern Fan Water Recharge Unit would most 

likely have a net positive conservation effect on the recovery and 

conservation of the Buena Vista Lake shrew when compared to the 

positive conservation effects of a critical habitat designation. As 

described above, the overall benefits to these species of a critical 

habitat designation for these properties are relatively small. In 

contrast, we believe that this exclusion will enhance our existing 

partnership with these landowners, and it will set a positive example 

and provide positive incentives to other non-Federal landowners who may 

be considering implementing voluntary conservation activities on their 

lands. We conclude there is a higher likelihood of beneficial 

conservation activities occurring in these and other areas without 

designated critical habitat than there would be with designated 

critical habitat on these properties.



Relationship of Critical Habitat to the Coles Levee Unit



    The Coles Levee Ecosystem Preserve has been established with a 

conservation easement that is held by the California Department of Fish 

and Game. This conservation easement establishes that this area will be 

``retained forever in a natural condition and to prevent any use of the 

property that will significantly impair or interfere with the 

conservation values of the property.'' The Conservation Easement limits 

the use of the Property to such activities as set forth and reserved in 

the easement, including those involving the conservation, protection, 

restoration and enhancement of native species and their habitat.

    We proposed as critical habitat, but have now considered for 

exclusion from the final designation, the Coles Levee Unit that is 

entirely within the Coles Levee Ecosystem Preserve.



(1) Benefits of Inclusion



    There is minimal benefit from designating critical habitat for the 

Buena Vista Lake shrew within the Coles Levee Ecosystem Preserve 

because these lands are already managed for the conservation of 

wildlife. One possible benefit of including these lands as critical 

habitat would be to educate the



[[Page 3457]]



public regarding the conservation values of these areas and the habitat 

they support. However, critical habitat designation provides little 

gain in the way of increased recognition for special habitat values on 

lands that are expressly managed to protect and enhance those values. 

Additionally, the designation of critical habitat will not have any 

appreciable effect on the development or implementation of public 

education programs in these areas.

    Another possible benefit to including these lands is that the 

designation of critical habitat can serve to educate landowners and the 

public regarding the potential conservation values of an area. This may 

focus and contribute to conservation efforts of other parties by 

clearly delineating areas of high conservation value for certain 

species. However, we believe that this education benefit has largely 

been achieved. The additional educational benefits, which might arise 

from critical habitat designation, are largely accomplished through the 

proposed rule and request for public comment that accompanied the 

development of this regulation. We have accordingly determined that the 

benefits of designating critical habitat on this property covered by 

the described conservation measures above are small.

    The designation of critical habitat would require consultation with 

us for any action undertaken, authorized, or funded by a Federal agency 

that may affect the species or its designated critical habitat. 

However, the management objects for the Coles Levee Ecosystem preserve 

already include specifically managing for targeted listed species and 

sensitive species; therefore, the benefit from additional consultation 

is likely also to be minimal.



(2) Benefits of Exclusion



    While the consultation requirement associated with critical habitat 

on the Coles Levee Ecosystem Preserve would add little benefit, it 

would require the use of resources to ensure regulatory compliance that 

could otherwise be used for on-the-ground management of the targeted 

listed or sensitive species. The Coles Levee Ecosystem Preserve is 

currently managed by the California Department of Fish and Game through 

a conservation easement and management agreement that is funded in 

perpetuity. Through this management, the entire Preserve is fenced to 

prevent trespass grazing or other unauthorized uses of the area. There 

is additional fencing around the pond area that provides for shrew 

habitat. As part of the management, ARCO will provide for a continuous 

water source to the pond to sustain habitat beneficial to the shrew. 

The management agreement for the Preserve also includes impact and 

avoidance measures for any construction that will occur in the area and 

provides for the monitoring of the Preserve on a yearly basis for 

plants and animals. The agreement also stipulates a mitigation 

requirement at a 4 to 1 ratio for replacement of any habitat that is 

impacted. Therefore, the benefits of exclusion include relieving 

additional regulatory burden that might be imposed by the critical 

habitat, which could divert resources from substantive resource 

protection to procedural regulatory efforts.



(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion



    We believe that the potential disincentives to the State's active 

management of their trust resources that are provided by designation of 

critical habitat are appreciably greater than the benefits to be 

derived from such designation. This is a result of the fact that these 

lands are already managed to protect and enhance unique and important 

natural resource values. We therefore conclude that the benefits of 

excluding the Coles Levee Ecosystem Preserve lands from the final 

critical habitat designation outweigh the benefits of including them. 

Such exclusion will not increase the likelihood that management 

activities would be proposed that would appreciably diminish the value 

of the habitat for conservation of the species. Further, such exclusion 

will not result in the extinction of the species. We therefore conclude 

that the benefits of excluding Coles Levee Ecosystem Preserve lands 

from the final critical habitat designation outweigh the benefits of 

including them.

    Based on the above considerations, and consistent with the 

direction provided in section 4(b)(2) of the Act and the Federal 

District Court decision concerning critical habitat (Center for 

Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan. 

13, 2003), we have determined that the benefits of excluding the Coles 

Levee Ecosystem Preserve property in Unit 4 as critical habitat 

outweigh the benefits of including them as critical habitat for the 

Buena Vista Lake shrew.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 

habitat on the basis of the best scientific and commercial information 

available and to consider the economic and other relevant impacts of 

designating a particular area as critical habitat. We may exclude areas 

from critical habitat upon a determination that the benefits of such 

exclusions outweigh the benefits of specifying such areas as part of 

critical habitat. We cannot exclude such areas from critical habitat if 

such exclusion would result in the extinction of the species.

    Following the publication of the proposed critical habitat 

designation, we conducted an economic analysis to estimate the 

potential economic effect of the designation. The draft analysis was 

made available for public review on November 30, 2004. We accepted 

comments on the draft analysis until December 15, 2004.

    The primary purpose of the economic analysis is to estimate the 

potential economic impacts associated with the designation of critical 

habitat for the Buena Vista Lake shrew. This information is intended to 

assist the Secretary in making decisions about whether the benefits of 

excluding particular areas from the designation outweigh the benefits 

of including those areas in the designation. This economic analysis 

considers the economic efficiency effects that may result from the 

designation, including habitat protections that may be co-extensive 

with the listing of the species. It also addresses distribution of 

impacts, including an assessment of the potential effects on small 

entities and the energy industry. This information can be used by the 

Secretary to assess whether the effects of the designation might unduly 

burden a particular group or economic sector.

    This analysis focuses on the direct and indirect costs of the rule. 

However, economic impacts to land use activities can exist in the 

absence of critical habitat. These impacts may result from, for 

example, local zoning laws, State and natural resource laws, and 

enforceable management plans and best management practices applied by 

other State and Federal agencies. Economic impacts that result from 

these types of protections are not included in the analysis as they are 

considered to be part of the regulatory and policy baseline.

    Our proposed critical habitat rule pertained to the Buena Vista 

Lake shrew. Therefore, our economic analysis evaluated the potential 

future effects associated with the listing of this species as 

endangered under the Act, as well as any potential effect of the 

critical habitat designation above and beyond those regulatory and 

economic impacts associated with listing.



[[Page 3458]]



    We received nine comment letters on the draft economic analysis of 

the proposed designation. Following the close of the comment period, we 

considered comments, prepared responses to comments, and prepared a 

summary of revisions to economic issues based on final critical habitat 

designation (see Responses to Comments section). The economic analysis 

indicates that is rule will not have an annual economic effect of $100 

million or more. Based on our economic analysis, the annualized 

economic effects of this designation are estimated to be $8,752 to 

$12,932, because the economic analysis is for Kern Lake only, as all 

the other units were excluded from designation. We have excluded 4,173 

ac (1,689 ha) of privately owned lands (and 387 ac (157 ha) of federal 

land) analyzed in the draft economic analysis based on non-economic 

considerations.

    A copy of the final economic analysis and a description of the 

exclusion process with supporting documents may be obtained from the 

Sacramento Fish and Wildlife Office directly (see ADDRESSES section).



Required Determinations



Regulatory Planning and Review



    In accordance with Executive Order 12866, this document is a 

significant rule in that it may raise novel legal and policy issues, 

but will not have an annual effect on the economy of $100 million or 

more or affect the economy in a material way. Due to the tight timeline 

for publication in the Federal Register, the Office of Management and 

Budget (OMB) has not formally reviewed this rule. As explained above, 

we prepared an economic analysis of this action; the draft economic 

analysis was made available for public comment, and we considered those 

comments during the preparation of this rule. We used this analysis to 

meet the requirement of section 4(b)(2) of the Act to determine the 

economic consequences of designating the specific area as critical 

habitat. We also used it to help determine whether to exclude any area 

from critical habitat, as provided for under section 4(b)(2), if we 

determine that the benefits of such exclusion outweigh the benefits of 

specifying such area as part of the critical habitat, unless we 

determine, based on the best scientific and commercial data available, 

that the failure to designate such area as critical habitat will result 

in the extinction of the species.

    The economic analysis indicates that this rule will not have an 

annual economic effect of $100 million or more.



Regulatory Flexibility Act (5 U.S.C. 601 et seq.)



    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 

amended by the Small Business Regulatory Enforcement Fairness Act 

(SBREFA) of 1996), 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 Regulatory Flexibility Act (RFA) to require Federal agencies to 

provide a statement of the factual basis for certifying that the rule 

will not have a significant economic impact on a substantial number of 

small entities.



Executive Order 13211



    On May 18, 2001, the President issued an Executive Order (E.O. 

13211) on regulations that significantly affect energy supply, 

distribution, and use. Executive Order 13211 requires agencies to 

prepare Statements of Energy Effects when undertaking certain actions. 

This proposed rule to designate critical habitat for the shrew is not a 

significant regulatory action under Executive Order 12866, and it 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.



Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)



    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 

1501), the Service makes the following findings:

    (a) This rule will not produce a Federal mandate. In general, a 

Federal mandate is a provision in legislation, statute, or regulation 

that would impose an enforceable duty upon State, local, or tribal 

governments or the private sector and includes both ``Federal 

intergovernmental mandates'' and ``Federal private sector mandates.'' 

These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 

intergovernmental mandate'' includes a regulation that ``would impose 

an enforceable duty upon State, local, or tribal governments,'' with 

two exceptions. It excludes ``a condition of federal assistance.'' It 

also excludes ``a duty arising from participation in a voluntary 

Federal program,'' unless the regulation ``relates to a then-existing 

Federal program under which $500,000,000 or more is provided annually 

to State, local, and tribal governments under entitlement authority,'' 

if the provision would ``increase the stringency of conditions of 

assistance'' or ``place caps upon, or otherwise decrease, the Federal 

Government's responsibility to provide funding'' and the State, local, 

or tribal governments ``lack authority'' to adjust accordingly. (At the 

time of enactment, these entitlement programs were: Medicaid; AFDC work 

programs; Child Nutrition; Food Stamps; Social Services Block Grants; 

Vocational Rehabilitation State Grants; Foster Care, Adoption 

Assistance, and Independent Living; Family Support Welfare Services; 

and Child Support Enforcement.) ``Federal private sector mandate'' 

includes a regulation that ``would impose an enforceable duty upon the 

private sector, except (i) a condition of Federal assistance; or (ii) a 

duty arising from participation in a voluntary Federal program.''

    The designation of critical habitat does not impose a legally 

binding duty on non-Federal government entities or private parties. 

Under the Act, the only regulatory effect is that Federal agencies must 

ensure that their actions do not destroy or adversely modify critical 

habitat under section 7. While non-Federal entities who receive Federal 

funding, assistance, permits or otherwise require approval or 

authorization from a Federal agency for an action may be indirectly 

impacted by the designation of critical habitat, the legally binding 

duty to avoid destruction or adverse modification of critical habitat 

rests squarely on the Federal agency. Furthermore, to the extent that 

non-Federal entities are indirectly impacted because they receive 

Federal assistance or participate in a voluntary Federal aid program, 

the Unfunded Mandates Reform Act would not apply; nor would critical 

habitat shift the costs of the large entitlement programs listed above 

on to State governments.

    (b) Due to current public knowledge of the species' protection, the 

prohibition against take of the species both within and outside of the 

designated areas, and the fact that critical habitat provides no 

incremental restrictions, we do not anticipate that this rule will 

significantly or uniquely affect small governments. As such, Small 

Government Agency Plan is not



[[Page 3459]]



required. We will, however, further evaluate this issue as we conduct 

our economic analysis and revise this assessment if appropriate.



Takings



    In accordance with Executive Order 12630 (``Government Actions and 

Interference with Constitutionally Protected Private Property 

Rights''), we have analyzed the potential takings implications of 

designating critical habitat for the Buena Vista Lake shrew in a 

takings implication assessment, which indicates that this rule would 

not pose significant takings implications. The takings implications 

assessment concludes that this final designation of critical habitat 

for the shrew does not pose significant takings implications.



Federalism



    In accordance with Executive Order 13132, the rule does not have 

significant Federalism effects. A Federalism assessment is not 

required. In keeping with DOI policy, we requested information from, 

and coordinated development of, this proposed critical habitat 

designation with appropriate State resource agencies in California. The 

designation of critical habitat in areas currently occupied by the 

shrew imposes no additional restrictions to those currently in place 

and, therefore, has little incremental impact on State and local 

governments and their activities. The designation may have some benefit 

to these governments in that the areas essential to the conservation of 

the species are more clearly defined, and the primary constituent 

elements of the habitat necessary to the survival of the species are 

specifically identified. While making this definition and 

identification does not alter where and what federally sponsored 

activities may occur, it may assist these local governments in long-

range planning (rather than waiting for case-by-case section 7 

consultations to occur).



Civil Justice Reform



    In accordance with Executive Order 12988, the Office of the 

Solicitor has determined that the rule does not unduly burden the 

judicial system and that it meets the requirements of sections 3(a) and 

3(b)(2) of the Order. We have proposed designating critical habitat in 

accordance with the provisions of the Endangered Species Act. This 

proposed rule uses standard property descriptions and identifies the 

primary constituent elements within the designated areas to assist the 

public in understanding the habitat needs of the shrew.



Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)



    This rule does not contain any new collections of information that 

require approval by OMB under the Paperwork Reduction Act. This rule 

will not impose recordkeeping or reporting requirements on State or 

local governments, individuals, businesses, or organizations. An agency 

may not conduct or sponsor, and a person is not required to respond to, 

a collection of information unless it displays a currently valid OMB 

control number.



National Environmental Policy Act



    It is our position that, outside the Tenth Circuit, we do not need 

to prepare environmental analyses as defined by the NEPA in connection 

with designating critical habitat under the Endangered Species Act of 

1973, as amended. We published a notice outlining our reasons for this 

determination in the Federal Register on October 25, 1983 (48 FR 

49244). This assertion was upheld in the courts of the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 

denied 116 S. Ct. 698 (1996).



Government-to-Government Relationship With Tribes



    In accordance with the President's memorandum of April 29, 1994, 

``Government-to-Government Relations with Native American Tribal 

Governments'' (59 FR 22951), Executive Order 13175, and the Department 

of the Interior's manual at 512 DM 2, we readily acknowledge our 

responsibility to communicate meaningfully with recognized Federal 

Tribes on a government-to-government basis. We have determined that 

there are no tribal lands essential for the conservation of the shrew. 

Therefore, critical habitat for the shrew has not been designated on 

Tribal lands.



References Cited



    A complete list of all references cited in this rulemaking is 

available upon request from the Field Supervisor, Sacramento Fish and 

Wildlife Office (see ADDRESSES section).



Author(s)



    The primary author of this package is the Sacramento Fish and 

Wildlife Office staff.



List of Subjects in 50 CFR Part 17



    Endangered and threatened species, Exports, Imports, Reporting and 

record keeping requirements, Transportation.



Regulation Promulgation



0

For the reasons outlined in the preamble, we amend part 17, subchapter 

B of chapter I, title 50 of the Code of Federal Regulations, as 

follows:



PART 17--[AMENDED]



0

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.





0

2. In Sec.  17.11(h), revise the entry for ``Shrew, Buena Vista Lake'' 

under ``MAMMALS'' to read as follows:





Sec.  17.11  Endangered and threatened wildlife.



* * * * *

    (h) * * *



--------------------------------------------------------------------------------------------------------------------------------------------------------

                       Species                                                 Vertebrate

------------------------------------------------------                      population where                                                   Special

                                                         Historic range       endangered or        Status     When listed  Critical habitat     rules

           Common name              Scientific name                            threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

             Mammals



                                                                      * * * * * * *

Shrew, Buena Vista Lake           Sorex ornatus        U.S.A. (CA)         Entire............  E                      725  17.95(a)                   NA

                                   relictus.



                                                                      * * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------





[[Page 3460]]



* * * * *



0

3. Amend Sec.  17.95(a) by adding an entry for ``Buena Vista Lake 

shrew'' in the same alphabetical order as this species appears in the 

table in Sec.  17.11, to read as follows:





Sec.  17.95  Critical habitat--fish and wildlife.



    (a) Mammals.

* * * * *

Buena Vista Lake Shrew (Sorex ornatus relictus)

    (1) Critical habitat units are depicted for Kern County, 

California, on the maps below.

    (2) The primary constituent elements of critical habitat for the 

Buena Vista Lake shrew are the habitat components that provide:

    (i) Riparian or wetland communities supporting a complex vegetative 

structure with a thick cover of leaf litter or dense mats of low-lying 

vegetation; and

    (ii) Suitable moisture supplied by a shallow water table, 

irrigation, or proximity to permanent or semipermanent water; and

    (iii) A consistent and diverse supply of prey.

    (3) Critical habitat does not include existing features and 

structures, such as buildings, aqueducts, airports, roads, and other 

developed areas not containing one or more of the primary constituent 

elements.

    (4) Data layers defining map units were created on a base of USGS 

7.5' quadrangles, and critical habitat units were then mapped using 

Universal Transverse Mercator (UTM) coordinates.

    (5) Unit 1: Kern Lake, Kern County, California.

    (i) From USGS 1:24,000 quadrangle map Coal Oil Canyon, California, 

land bounded by the following UTM 11 NAD 27 coordinates (E,N):

    (ii) Western Polygon: 312678, 3887297; 313415, 3887298; 313415, 

3887297; 313439, 3887297; 313437, 3887127; 313415, 3887121; 313415, 

3887121; 313369, 3887111; 313304, 3887106; 313237, 3887111; 313199, 

3887141; 313174, 3887156; 313172, 3887156; 313169, 3887157; 313156, 

3887157; 313139, 3887155; 313124, 3887148; 313109, 3887135; 313096, 

3887121; 313081, 3887105; 313064, 3887087; 313051, 3887072; 313042, 

3887062; 313035, 3887052; 313031, 3887048; 313002, 3887026; 313001, 

3887026; 313000, 3887025; 312990, 3887023; 312979, 3887026; 312963, 

3887031; 312958, 3887033; 312947, 3887036; 312933, 3887044; 312921, 

3887050; 312911, 3887052; 312900, 3887052; 312896, 3887052; returning 

to 312678, 3887297;

    (iii) Eastern Polygon: 313471, 3887135; 313472, 3887797; 313823, 

3887791; 313823, 3887314; 313786, 3887267; 313696, 3887224; 313618, 

3887189; 313491, 3887139; returning to 313471, 3887135.

    (iv) Note: Map follows:



BILLING CODE 4310-55-P



[[Page 3461]]



[GRAPHIC] [TIFF OMITTED] TR24JA05.000



* * * * *



    Dated: January 12, 2005.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 05-982 Filed 1-13-05; 12:49 pm]



BILLING CODE 4310-55-C