[Federal Register: April 15, 2010 (Volume 75, Number 72)]
[Proposed Rules]
[Page 19575-19590]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap10-17]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0038]
[92210-1117-0000-B4]
RIN 1018-AW22
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for Navarretia fossalis (Spreading Navarretia)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on our June 10, 2009, proposed
revised designation of critical habitat for Navarretia fossalis
(spreading navarretia). We also announce the availability of a draft
economic analysis (DEA); revisions to proposed critical habitat,
including proposed revisions to eight subunits based on the previous
public comment period; and an amended required determinations section
of the proposal. We are reopening the comment period for an additional
30 days to allow all interested parties an opportunity to comment on
all of the above. If you submitted comments previously, you do not need
to resubmit them because we have already incorporated them into the
public record and will fully consider them in our final determination.
DATES: We will consider public comments received on or before May 17,
2010. Any comments that are received after the closing date may not be
considered in the final decision on this action.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments on Docket No. FWS-R8-
ES-2009-0038.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2009-0038; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone (760) 431-
9440; facsimile (760) 431-5901. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from the proposed rule is
based on the best scientific data available and will be accurate and as
effective as possible. Therefore, we request comments or information
from other concerned government agencies, the scientific community,
industry, or any other interested parties during this reopened comment
period on our proposed rule to revise critical habitat for Navarretia
fossalis (spreading navarretia), which we published in the Federal
Register on June 10, 2009 (74 FR 27588), including the changes to
proposed critical habitat in Subunits 1A, 1B, 3B, 5C, 5I, 6A, 6B, and
6C, the DEA of the proposed revised designation, and the amended
required determinations provided in this document. We are particularly
interested in comments concerning:
(1) The reasons why we should or should not revise the critical
habitat under section 4 of the Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.), including whether there are
threats to Navarretia fossalis from human activity, the type of human
activity causing these threats, and whether the benefit of designation
would outweigh any threats to the species caused by the designation,
such that the designation of critical habitat is prudent.
(2) Specific information on:
The current amount and distribution of Navarretia fossalis
habitat.
Areas that provide habitat for N. fossalis that we did not
discuss in our original proposed revised critical habitat rule or in
this reopening of the comment period.
Areas containing the physical and biological features
essential to the conservation of N. fossalis that we should include in
the revised critical habitat designation and why. Include information
on the distribution of these essential features and what special
management considerations or protections may be required to maintain or
enhance them.
Areas proposed as critical habitat that do not contain the
physical and biological features essential for the conservation of the
species that should not be designated as critical habitat.
Areas not occupied at the time of listing that are
essential to the conservation of the species and why.
(3) Land use designations and current or planned activities in the
areas occupied by the species, and their possible impacts on proposed
critical habitat;
(4) How the proposed revised critical habitat boundaries could be
refined to more closely circumscribe landscapes identified as
containing the physical and biological features essential to the
conservation of the species.
(5) Any foreseeable economic, national security, or other relevant
impacts that may result from designating particular areas as critical
habitat, and, in particular, any impacts to small entities (e.g., small
businesses or small governments), and the benefits of including or
excluding areas from the proposed revised designation that exhibit
these impacts.
(6) Special management considerations or protections that the
essential physical and biological features identified in the proposed
critical habitat may require.
(7) Information on the extent to which the description of potential
economic impacts in the DEA is complete and accurate.
(8) Whether any specific subunits being proposed as critical
habitat should be excluded under section 4(b)(2) of the Act, and
whether the benefits of potentially excluding any particular area
outweigh the benefits of including that area as critical habitat.
(9) Our consideration to exclude the portion of Subunit 4E that we
are proposing as critical habitat within the Ramona Grasslands Preserve
under section 4(b)(2) of the Act, and whether such exclusion is
appropriate and why;
(10) The likelihood of adverse social reactions to the designation
of critical habitat, and how the consequences of such reactions, if
they occur, would relate to the conservation of the species and
regulatory benefits of the proposed revised critical habitat
designation.
(11) Information on the extent to which the description of
potential economic impacts in the DEA is complete and accurate, and
specifically:
[[Page 19576]]
Whether there are incremental costs of critical habitat
designation (e.g., costs attributable solely to the designation of
critical habitat for Navarretia fossalis) that have not been
appropriately identified or considered in our economic analysis,
including costs associated with future administrative costs or project
modifications that may be required by Federal agencies related to
section 7 consultation under the Act;
Whether there are incremental economic benefits of
critical habitat designation that have not been appropriately
identified or considered in our economic analysis.
(12) The potential effects of climate change on this species and
its habitat and whether the critical habitat may adequately account for
these potential effects.
If you submitted comments or information on the proposed revised
rule (74 FR 27588) during the initial comment period from June 10,
2009, to August 10, 2009, please do not resubmit them. These comments
are included in the public record for this rulemaking, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning the revised critical habitat for
Navarretia fossalis will take into consideration all written comments
and any additional information we receive during both comment periods.
On the basis of public comments, we may, during the development of our
final determination, find that areas within the proposed revised
critical habitat designation do not meet the definition of critical
habitat, that some modifications to the described boundaries are
appropriate, or that areas may or may not be appropriate for exclusion
under section 4(b)(2) of the Act.
You may submit your comments and materials concerning our proposed
rule, the associated DEA, our changes to subunits and considered
exclusions as identified in this document, and our amended required
determinations section by one of the methods listed in the ADDRESSES
section.
If you submit a comment via http://www.regulations.gov, your entire
submission--including any personal identifying information--will be
posted on the website. If your submission is made via a hard copy that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so. We will
post all hard copy comments on http://www.regulations.gov. Please
include sufficient information with your comments to allow us to verify
any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation used to prepare this notice, will be available for public
inspection at http://www.regulations.gov, or by appointment, during
normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain copies of the proposed revision of critical habitat (74 FR
27588) and the DEA on the Internet at http://www.regulations.gov at
Docket No. FWS-R8-ES-2009-0038, or by mail from the Carlsbad Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the proposed revised designation of critical habitat for Navarretia
fossalis in this notice. For more information on previous Federal
actions concerning N. fossalis, see the 2005 final designation of
critical habitat published in the Federal Register on October 18, 2005
(70 FR 60658), or the 2009 proposed revised designation of critical
habitat published in the Federal Register on June 10, 2009 (74 FR
27588), or contact the Carlsbad Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
The Center for Biological Diversity filed a complaint in the U.S.
District Court for the Southern District of California on December 19,
2007, challenging our designation of critical habitat for Navarretia
fossalis and Brodiaea filifolia (Center for Biological Diversity v.
United States Fish and Wildlife Service et al., Case No. 07-CV-2379-W-
NLS). This lawsuit challenged the validity of the information and
reasoning we used to exclude areas from the 2005 critical habitat
designation for N. fossalis. We reached a settlement agreement on July
25, 2008, in which we agreed to reconsider critical habitat designation
for N. fossalis. The settlement stipulated that we submit a proposed
revised critical habitat designation for N. fossalis to the Federal
Register for publication by May 29, 2009, and submit a final revised
critical habitat designation to the Federal Register for publication by
May 28, 2010. On June 10, 2009, we published the revised proposed
critical habitat designation in the Federal Register (74 FR 27588). On
January 20, 2010, we were granted an extension to submit a final
revised critical habitat designation to the Federal Register for
publication by September 30, 2010.
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat.
We prepared a DEA (Entrix, Inc. 2010), which identifies and
analyzes the potential impacts associated with the proposed revised
designation of critical habitat for Navarretia fossalis that we
published in the Federal Register on June 10, 2009 (74 FR 27588). The
DEA looks retrospectively at costs incurred since the October 13, 1998
(63 FR 54975), listing of N. fossalis as threatened. The DEA quantifies
the economic impacts of all potential conservation efforts for N.
fossalis; some of these costs will likely be incurred regardless of
whether or not we finalize the revised critical habitat rule. The
economic impact of the proposed revised critical habitat designation is
analyzed by comparing a ``with critical habitat'' scenario with a
``without critical habitat'' scenario. The ``without critical habitat''
scenario represents the baseline for the analysis, considering
protections already in place for the species (for example, under the
Federal listing and other Federal, State, and local regulations). The
baseline, therefore, represents the costs incurred regardless of
whether critical habitat is designated. The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts are those not expected to
occur absent the critical
[[Page 19577]]
habitat designation for N. fossalis. In other words, the incremental
costs are those attributable solely to the designation of critical
habitat above and beyond the baseline costs; these are the costs we may
consider in the final designation of critical habitat relative to areas
that may be excluded under section 4(b)(2) of the Act. The analysis
looks retrospectively at baseline impacts incurred since the species
was listed, and forecasts both baseline and incremental impacts likely
to occur if we finalize the proposed revised critical habitat.
The 2010 DEA (made available with the publication of this notice
and referred to as the DEA throughout this document unless otherwise
noted) estimates the foreseeable economic impacts of the proposed
revised critical habitat designation for Navarretia fossalis. The
economic analysis identifies potential incremental costs as a result of
the proposed revised critical habitat designation, which are those
costs attributed to critical habitat over and above those baseline
costs coextensive with listing. It also discusses the benefits of
critical habitat designation. These benefits are primarily presented in
a qualitative manner. The DEA describes economic impacts of N. fossalis
conservation efforts associated with the following categories of
activity: (1) Development, (2) conservation lands management, (3)
transportation, (4) pipeline projects, (5) flood control, (6)
agriculture, and (7) fire management.
Baseline economic impacts are those impacts that result from
listing and other conservation efforts for Navarretia fossalis.
Conservation efforts related to flood control and development
activities constitute the majority of total baseline costs
(approximately 84 percent of post-designation, upper-bound, baseline
impacts when a 7 percent discount rate is used) in areas of proposed
revised critical habitat. Impacts to conservation lands management,
transportation, and pipeline projects compose the remaining
approximately 16 percent of post-designation, upper-bound, baseline
impacts when a 7 percent discount rate is used. Total future baseline
impacts are estimated to be $30.1 to $123.5 million ($2.9 to $11.7
million annualized) in present value terms using a 7 percent discount
rate, over the next 20 years (2010-2029) in areas proposed as revised
critical habitat (Entrix, Inc. 2010, pp. ES-3-ES-4).
Conservation costs associated with section 7 consultations for
development, transportation, and flood control projects comprise the
quantified incremental impacts for the proposed revised critical
habitat rule. Impacts associated with transportation constituted the
largest portion of post-designation, upper-bound incremental impacts,
accounting for almost 47 percent of the forecast incremental impacts
applying a 7 percent discount rate. Conservation efforts related to
development and flood control activities constitute the remainder of
incremental impacts (37 percent and 16 percent, respectively, of post-
designation upper-bound baseline impacts when a 7 percent discount rate
is used) in areas of proposed revised critical habitat. The DEA
estimated total potential incremental economic impacts in areas
proposed as revised critical habitat over the next 20 years (2010-2029)
to be $846,000 to $1.2 million ($80,000 to $100,000 annualized) in
present value terms applying a 7 percent discount rate (Entrix, Inc.
2010, pp. ES-3-ES-4).
The DEA considers both economic efficiency and distributional
effects. In the case of habitat conservation, efficiency effects
generally reflect the ``opportunity costs'' associated with the
commitment of resources to comply with habitat protection measures
(such as lost economic opportunities associated with restrictions on
land use). The DEA also addresses how potential economic impacts are
likely to be distributed, including an assessment of any local or
regional impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The DEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the revised designation might unduly burden a particular
group or economic sector.
Changes to Proposed Revised Critical Habitat
In this document we are proposing revisions to Subunits 1A, 1B, 3B,
5I, 6A, 6B, and 6C, as identified and described in the revised proposed
rule that published in the Federal Register on June 10, 2009 (74 FR
27588), and adding a new Subunit 5C. We received comments from the
public and from one peer reviewer during the open comment period
indicating that we should reevaluate the proposed boundaries of
Subunits 1A, 1B, 3B, 5I, 6A, 6B, and 6C and that we should include
subunit 5C in the proposed critical habitat. The purpose of the
revisions described below is to better delineate the areas that meet
the definition of critical habitat for Navarretia fossalis. All areas
added to the units proposed in the June 10, 2009 (74 FR 27588),
proposed rule are within the geographic range occupied by the species
at the time it was listed and contain the features essential for the
conservation of the species. These areas contain the primary
constituent elements (PCEs), which are the physical or biological
features essential to the conservation of a species, and which the
species' proposed or designated critical habitat is based on, such as
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, rearing of offspring, germination, or seed dispersal; and
habitats that are protected from disturbance or are representative of
the species' historic geographic and ecological distribution.
The revisions consist of both additions and removals of land that
we proposed as critical habitat (74 FR 27588). The changes made in
Subunits 1A, 1B, 3B, 5I, 6A, 6B, and 6C do not alter the description of
these subunits in the June 10, 2009, proposed rule (74 FR 27588);
however, we include revised maps with this publication. We briefly
describe the changes made for each of these subunits below. We did not
include Subunit 5C in the proposed rule (74 FR 27588, June 10, 2009),
so this notice includes the full description and map for Subunit 5C
below. As a result of these revisions, the overall area proposed for
critical habitat is 7,609 acres (ac) (3,079 hectares (ha)), an increase
of 737 ac (298 ha) from the 6,872 ac (2,781 ha) that we proposed as
critical habitat in the June 10, 2009, proposed rule (74 FR 27588). A
summary of the total acreage of each proposed subunit is presented in
Table 1.
[[Page 19578]]
Table 1. Summary of Subunits Proposed as Critical Habitat.
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Location Total Subunit Area
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Unit 1: Los Angeles Basin-Orange Management Area
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1A. Cruzan Mesa 156 ac (63 ha)
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1B. Plum Canyon 20 ac (8 ha)
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Unit 2: San Diego: Northern Coastal Mesa Management Area
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2. Poinsettia Lane Commuter Station 9 ac (4 ha)
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Unit 3: San Diego: Central Coastal Mesa Management Area
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3A. Santa Fe Valley (Crosby Estates) 5 ac (2 ha)
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3B. Carroll Canyon 18 ac (7 ha)
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3C. Nobel Drive 37 ac (15 ha)
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3D. Montgomery Field 48 ac (20 ha)
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Unit 4: San Diego: Inland Management Area
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4C1. San Marcos (Upham) 34 ac (14 ha)
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4C2. San Marcos (Universal Boot) 32 ac (13 ha)
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4D. San Marcos (Bent Avenue) 5 ac (2 ha)
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4E. Ramona 135 ac (55 ha)
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Unit 5: San Diego: Southern Coastal Mesa Management Area
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5A. Sweetwater Vernal Pools (S1-3) 95 ac (38 ha)
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5B. Otay River Valley (M2) 24 ac (10 ha)
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5C. Otay Mesa (J26) 42 ac (17 ha)
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5F. Proctor Valley (R1-2) 88 ac (36 ha)
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5G. Otay Lakes (K3-5) 140 ac (57 ha)
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5H. Western Otay Mesa vernal pool 143 ac (58 ha)
complexes
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5I. Eastern Otay Mesa vernal pool 221 ac (89 ha)
complexes
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Unit 6: Riverside Management Area
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6A. San Jacinto River 4,312 ac (1,745 ha)
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6B. Salt Creek Seasonally Flooded Alkali 943 ac (382 ha)
Plain
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6C. Wickerd Road and Scott Road Pools 235 ac (95 ha)
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6D. Skunk Hollow 158 ac (64 ha)
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6E. Mesa de Burro 708 ac (287 ha)
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Total 7,609 ac (3,079 ha)
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Subunit 1A: Cruzan Mesa
We received comments indicating that we did not capture the entire
watershed area necessary to fill the vernal pools supporting Navarretia
fossalis in Subunit 1A. We reviewed aerial imagery and topographic maps
for this area and verified that the subunit needed revision to
adequately capture areas that meet the definition of critical habitat
and include the watershed for the ponding areas on Cruzan Mesa (PCE 2).
The revised subunit consists of 156 ac (63 ha) of private land, an
increase of 27 ac (11 ha) from what we proposed as critical habitat in
the June 10, 2009, proposed rule (74 FR 27588).
Subunit 1B: Plum Canyon
We received information indicating that the placement of our
proposed critical habitat for Subunit 1B did not capture the vernal
pool where Navarretia fossalis occurs in the Plum Canyon area. Due to a
publication error, the incorrect map was published in the June 10,
2009, proposed rule (74 FR 27588). In reviewing this subunit, we
[[Page 19579]]
became aware of more accurate data describing this area (Glenn Lukos
Associates 2009, Exhibit 3 (Appendix D-3 of PCR 2009)). As a result of
our evaluation of this new information, we remapped the boundaries of
Subunit 1B. Our remapping corrects our publication error and
incorporates the new information. Subunit 1B contains physical and
biological features that are essential to the conservation of N.
fossalis, including ephemeral wetland habitat (PCE 1), intermixed
wetland and upland habitats that act as the local watershed (PCE 2),
and the topography and soils that support ponding during winter and
spring months (PCE 3). The revised subunit consists of 20 ac (8 ha) of
private land, a decrease of 12 ac (5 ha) from what we proposed in the
June 10, 2009, proposed rule (74 FR 27588).
Subunit 3B: Carroll Canyon
We received information indicating that the western portion of
Subunit 3B had been graded and does not likely contain the physical and
biological features essential to the conservation of Navarretia
fossalis. We reviewed aerial imagery and found this information to be
correct; therefore, we removed 2 ac (1 ha) of land that no longer meets
the definition of critical habitat for this species. The revised
subunit consists of 18 ac (7 ha) (16 ac (6 ha) of land owned by the
City of San Diego and 2 ac (1 ha) of private land), a decrease of 2 ac
(1 ha) from what we proposed in the June 10, 2009, proposed rule (74 FR
27588).
Subunit 5C: J26 Vernal Pool Complex
We received information from the public that we should propose
Subunit 5C, a subunit that was designated as critical habitat in our
October 18, 2005, final rule (70 FR 60658), as revised critical habitat
in this rule. We did not include Subunit 5C in the proposed rule (74 FR
27588, June 10, 2009) because we did not have data in our GIS database
indicating this area was occupied by Navarretia fossalis. We
subsequently reviewed the data in our files on N. fossalis in Subunit
5C (the J26 vernal pool complex) and found records of N. fossalis
occupancy (The Environmental Trust 2001, p. 1; 2000, p. 1). Based on
this new information and because this vernal pool complex is also
considered one of the best examples of vernal pool habitat on Otay Mesa
(The Environmental Trust 2002, p. 2), we are proposing Subunit 5C as
revised critical habitat. We have mapped the boundary of this subunit
to conform to our current mapping methodology.
Subunit 5C is located on eastern Otay Mesa in San Diego County,
California. This subunit is on the far eastern side of Otay Mesa north
of Alta Road and south of Lower Otay Reservoir. Subunit 5C consists of
42 ac (17 ha), including 26 ac (11 ha) of State and local government-
owned land and 16 ac (6 ha) private land. This subunit meets our
criteria for satellite habitat; it supports a stable occurrence of
Navarretia fossalis and provides potential connectivity between
occurrences of N. fossalis in Subunits 5G and 5I. Subunit 5C contains
the physical and biological features that are essential to the
conservation of N. fossalis, including ephemeral wetland habitat (PCE
1), intermixed wetland and upland habitats that act as the local
watershed (PCE 2), and the topography and soils that support ponding
during winter and spring months (PCE 3). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from nonnative plant species, altered hydrology, and human
disturbance activities (e.g., unauthorized grazing activity) that occur
in the vernal pool basins and associated watershed. Please see the
``Special Management Considerations or Protection'' section of the
proposed rule for a discussion of the threats to N. fossalis habitat
and potential management considerations (74 FR 27588, June 10, 2009).
Subunit 5I: Eastern Otay Mesa Vernal Pool Complex
We are not proposing to revise the boundaries of Subunit 5I;
however, due to a publication error, we are providing the correct map
for Subunit 5I in this document. For clarification, we reiterate that
Subunit 5I consists of 221 ac (89 ha) of private land as described in
the June 10, 2009, proposed rule (74 FR 27588).
Subunit 6A: San Jacinto River
We received information from the public that we had not included
some additional areas that meet the definition of critical habitat for
Navarretia fossalis in Subunit 6A. We reviewed the new information
provided, including a 2005 map that provided better survey data along
the San Jacinto River (Helix Environmental, Inc. 2005, map). Based on
the new information, we included additional areas in this subunit that
meet the definition of critical habitat for N. fossalis. We expanded
the critical habitat designation boundary for Subunit 6A in the
following areas: (1) Around 13th Street to the east of the San Jacinto
River, (2) east to Dawson Road and north to Ellis Road near Simpson
Road, (3) around the Case Road vernal pool, and (4) north of the Green
Valley Parkway. The revised subunit consists of 4,312 ac (1,745 ha) of
private land, an increase of 762 ac (308 ha) from what we proposed in
the June 10, 2009, proposed rule (74 FR 27588).
Subunit 6B: Salt Creek Seasonally Flooded Alkali Plain
A peer reviewer recommended that we revise the boundaries of the
proposed critical habitat in three areas of Subunit 6B, because we had
included areas that were disturbed by past activities and no longer
meet the definition of critical habitat and had not included some areas
that meet the definition of critical habitat for Navarretia fossalis.
Following evaluation of this area in greater detail, we agreed with the
peer reviewer and made changes to this subunit in the central portion
on the east side, on the north end, and near the Hemet Airport. We are
no longer proposing an area near the center on the east side that was
developed and disturbed many years ago, has not supported N. fossalis
since 1990, and therefore no longer meets the definition of critical
habitat. Also, we are no longer proposing some land in the northern
portion of the proposed subunit because it is dry, disturbed, and does
not meet the definition of critical habitat for N. fossalis. Finally,
we included vernal pool habitat on the eastern edge of our proposed
subunit near the Hemet Airport that meets the definition of critical
habitat for N. fossalis. The revised subunit consists of 943 ac (382
ha) of private land, a decrease of 111 ac (45 ha) from what we proposed
in the June 10, 2009, proposed rule (74 FR 27588).
Subunit 6C: Wickerd Road and Scott Road Pools
We received information that we had not adequately captured the
physical and biological features essential to the conservation of
Navarretia fossalis in Subunit 6C. We received new information
describing the Wickerd Road vernal pool (Roberts 2009, p. 1). We
reviewed the new information, including the information about the
vernal pool and newer aerial imagery for this area. As a result, we
revised the subunit to include the upward sloping area between the
Wickerd Road vernal pool and Scott Road that meets the definition of
critical habitat for N. fossalis and contributes to the watershed of
this vernal pool. The revised subunit consists of 235 ac (95 ha) of
private land, an increase of 30 ac (12 ha) from what we proposed in the
June 10, 2009, proposed rule (74 FR 27588).
[[Page 19580]]
Additional Areas Currently Considered For Exclusion Under Section
4(b)(2) of the Act- The Ramona Grasslands Preserve
In the proposed revised critical habitat designation published on
June 10, 2009 (74 FR 27588), we identified lands in Subunit 4E as
meeting the definition of critical habitat for Navarretia fossalis.
Based on comments submitted during the initial public comment period
from June 10, 2009, to August 10, 2009, we are also considering for
exclusion from critical habitat under section 4(b)(2) of the Act the
portion of Subunit 4E within the Ramona Grasslands Preserve. Of the 135
ac (55 ha) proposed in Subunit 4E, 51 ac (21 ha) are part of the Ramona
Grasslands Preserve, which is owned by the Nature Conservancy and San
Diego County, and managed by San Diego County Department of Parks and
Recreation. The Ramona Grasslands Preserve is covered by a conservation
easement and being managed and monitored according to the ``Area
Specific Management Directives for the Ramona Grasslands Preserve''
drafted by San Diego County (2007). The management plan for the Ramona
Grasslands Preserve provides for the conservation of N. fossalis and
its habitat through vernal pool management goals, including: managing
nonnative invasive plant species, maintaining the vernal pool
hydrology, and managing grazing activities to benefit vernal pool
habitat (Conservation Biology Institute 2007, pp. 26-27, 31-34). This
area will be incorporated into the North County Multiple Species
Conservation Plan (North County MSCP) upon completion of that plan (San
Diego County 2009).
As we stated earlier, we request data and comments from the public
on the DEA, on all aspects of the proposed revised critical habitat
rule (including the changes to proposed critical habitat in Subunits
1A, 1B, 3B, 5C, 5I, 6A, 6B, and 6C), and our amended required
determinations. The final revised rule may differ from the proposed
revised rule based on new information we receive during the public
comment periods. In particular, we may exclude an area from critical
habitat if we determine that the benefits of excluding the area
outweigh the benefits of including the area as critical habitat,
provided the exclusion will not result in the extinction of the
species.
Required Determinations---Amended
In our proposed rule published in the Federal Register on June 10,
2009 (74 FR 27588), we indicated that we would defer our determination
of compliance with several statutes and Executive Orders until the
information concerning potential economic impacts of the designation
and potential effects on landowners and stakeholders became available
in the DEA. We have now made use of the DEA to make these
determinations.
In this document, we affirm the information in our June 10, 2009,
proposed rule (74 FR 27588) concerning Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), the Paperwork Reduction Act, the National
Environmental Policy Act, and the President's memorandum of April 29,
1994, ``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951). However, based on the DEA data, we are
amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply,
Distribution, or Use), E.O. 12630 (Takings), and the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.).
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 effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions),
as described below. However, no regulatory flexibility analysis is
required if the head of an agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
Based on our DEA of the proposed revised designation, we provide our
analysis for determining whether the proposed rule would result in a
significant economic impact on a substantial number of small entities.
Based on comments we receive, we may revise this determination as part
of a final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed revised designation of critical
habitat for Navarretia fossalis would affect a substantial number of
small entities, we consider the number of small entities affected
within particular types of economic activities, such as residential and
commercial development. In order to determine whether it is appropriate
for our agency to certify that this rule would not have a significant
economic impact on a substantial number of small entities, we
considered each industry or category individually. In estimating the
numbers of small entities potentially affected, we also considered
whether their activities have any Federal involvement. Critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat affects activities
conducted, funded, permitted, or authorized by Federal agencies.
If we finalize this proposed revised critical habitat designation,
Federal agencies must consult with us under section 7 of the Act if
their activities may affect designated critical habitat. Consultations
to avoid the destruction or adverse modification of critical habitat
would be incorporated into the existing consultation process because
Navarretia fossalis is listed as a threatened species under the Act. In
the 2010 DEA, we evaluated the potential economic effects on small
business entities resulting from implementation of conservation actions
related to the proposed revision to critical habitat for Navarretia
fossalis. The analysis was based on the estimated incremental impacts
associated with the proposed rulemaking as described in sections 3
through 10 of the DEA. The SBREFA analysis evaluated the potential for
economic impacts related to several categories, including: (1)
Residential, commercial and industrial
[[Page 19581]]
development; (2) conservation lands management; (3) transportation; (4)
pipeline projects; (5) flood control; (6) agriculture; and (7) fire
management (Entrix, Inc. 2010, p. A-1). The DEA found that the only
category of activity where the designation may impact small businesses
is residential, commercial, and industrial development (Entrix, Inc.
2010, pp. A-1-A-4). For residential, commercial, and industrial
development, the DEA estimated that there will be approximately 38
development projects in the areas proposed as critical habitat over the
next 20 years. The total incremental impact to residential, commercial,
and industrial development was estimated to be between $112,000 and
$431,000 at a 7 percent discount rate over the next 20 years. On an
annual basis this affects approximately two development related small
businesses with a total annual impact ranging from $10,565 to $40,646
(Entrix, Inc. 2010, pp. A-3-A-4). In a regional context, there are
approximately 500 small development related businesses in San Diego
County and 303 in Riverside County. The 38 development related small
businesses that may be impacted represent approximately 5 percent of
the total number of development related small businesses in San Diego
and Riverside Counties. We do not believe that this represents a
substantial number of development-related small businesses or that an
annual impact ranging from $10,565 to $40,646 is a significant economic
impact; therefore, we do not find that the designation of critical
habitat for N. fossalis will have a significant economic impact on a
substantial number of small entities.
In summary, we considered whether the proposed revised designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
revised critical habitat for Navarretia fossalis would not have a
significant economic impact on a substantial number of small entities.
Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued 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. The OMB's guidance for
implementing this Executive Order outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to no
regulatory action. As discussed in Appendix A, the DEA finds that none
of these criteria are relevant to this analysis. The DEA concludes that
no incremental impacts on the production, distribution, or use of
energy are forecast associated specifically with this rulemaking. All
forecast impacts are expected to occur associated with the listing of
Navarretia fossalis, regardless of the designation of critical habitat.
Therefore, designation of critical habitat is not expected to lead to
any adverse outcomes (such as a reduction in electricity production or
an increase in the cost of energy production or distribution), and a
Statement of Energy Effects is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, 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. First, it excludes ``a condition of federal
assistance.'' Second, 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. ``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.''
Critical habitat designation 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. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits,
or that otherwise require approval or authorization from a Federal
agency. However, 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) As discussed in the DEA of the proposed revised designation of
critical habitat for Navarretia fossalis, we do not believe that this
rule would significantly or uniquely affect small governments because
it would not produce a Federal mandate of $100 million or greater in
any year; that is, it is not a ``significant regulatory action'' under
the Unfunded Mandates Reform Act. The DEA concludes that incremental
impacts may occur due to administrative costs of section 7
consultations for development, transportation, and flood control
projects activities; however, these are not expected to affect small
governments. Incremental impacts associated with these activities
[jsc8]are expected to be borne by the Federal Government, California
Department of Transportation, California Department of Fish and Game,
Riverside County, Riverside County Flood Control and Water Conservation
District, and City of Perris, which are not considered small
governments. Consequently, we do not believe that the revised critical
habitat designation would significantly or uniquely affect small
government entities. As such, a Small Government Agency Plan is not
required.
Executive Order 12630 -- Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we analyzed the potential takings implications of proposing
revised critical habitat for Navarretia fossalis in a takings
implications assessment. Critical habitat designation does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits. The
[[Page 19582]]
proposed revised critical habitat for N. fossalis does not pose
significant takings implications for the above reasons.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://
www.regulations.gov or by contacting the Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this notice are staff members of the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended at 74 FR 27588, June 10, 2009, as set forth below.
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Critical habitat for Navarretia fossalis (spreading navarretia)
in Sec. 17.96(a), which was proposed for revision on June 10, 2009, at
74 FR 27620, is proposed to be further amended by:
a. Revising paragraph (5), including the index map of critical
habitat units for Navarretia fossalis (spreading navarretia);
b. Revising paragraph (7)(ii), including the map of Subunits 1A
(Cruzan Mesa) and 1B (Plum Canyon);
c. Revising paragraph (10)(ii), including the map of Subunit 3B
(Carroll Canyon);
d. Redesignating paragraphs (19) through (27) as paragraphs (20)
through (28);
e. Adding a new paragraph (19);
f. Revising newly designated paragraph (23)(ii), including the map
of Subunit 5I (Eastern Otay Mesa Vernal Pool Complexes);
g. Revising newly designated paragraph (24)(ii), including the map
of Subunit 6A (San Jacinto River);
h. Revising newly designated paragraph (25)(ii), including the map
of Subunit 6B (Salt Creek Seasonally Flooded Alkali Plain); and
i. Revising newly designated paragraph (26)(ii), including the map
of Subunit 6C (Wickerd and Scott Road Pools), to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Polemoniaceae: Navarretia fossalis (spreading navarretia)
* * * * *
(5) Note: Index Map of critical habitat units for Navarretia
fossalis (spreading navarretia) follows:
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[GRAPHIC] [TIFF OMITTED] TP15AP10.001
[[Page 19584]]
* * * * *
(7) * * *
(ii) Note: Map of Los Angeles Basin-Orange Management Area Subunits
1A (Cruzan Mesa) and 1B (Plum Canyon) follows:
[GRAPHIC] [TIFF OMITTED] TP15AP10.002
[[Page 19585]]
* * * * *
(10) * * *
(ii) Note: Map of Unit 3, Subunit 3B (Carroll Canyon) follows:
[GRAPHIC] [TIFF OMITTED] TP15AP10.003
[[Page 19586]]
* * * * *
(19) Unit 5: San Diego: Southern Coastal Mesa Management Area, San
Diego County, CA. Subunit 5C: J26 Vernal Pool Complex.
(i) [Reserved for textual description of Subunit 5C.]
(ii) Note: Map of Unit 5, Subunit 5C (J26 Vernal Pool Complex)
follows:
[GRAPHIC] [TIFF OMITTED] TP15AP10.004
[[Page 19587]]
* * * * *
(23) * * *
(ii) Note: Map of Unit 5, Subunit 5I (Eastern Otay Mesa Vernal Pool
Complexes) follows:
[GRAPHIC] [TIFF OMITTED] TP15AP10.005
[[Page 19588]]
(24) * * *
(ii) Note: Map of Unit 6, Subunit 6A (San Jacinto River) follows:
[GRAPHIC] [TIFF OMITTED] TP15AP10.006
[[Page 19589]]
(25) * * *
(ii) Note: Map of Unit 6, Subunit 6B (Salt Creek Seasonally Flooded
Alkali Plain) follows:
[GRAPHIC] [TIFF OMITTED] TP15AP10.007
[[Page 19590]]
(26) * * *
(ii) Note: Map of Unit 6, Subunit 6C (Wickerd and Scott Road Pools)
follows:
[GRAPHIC] [TIFF OMITTED] TP15AP10.008
* * * * *
Dated: April 6, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-8453 Filed 4-14-10; 8:45 am]
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