[Federal Register Volume 77, Number 132 (Tuesday, July 10, 2012)]
[Proposed Rules]
[Pages 40705-40733]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16479]
[[Page 40705]]
Vol. 77
Tuesday,
No. 132
July 10, 2012
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Buena Vista Lake Shrew; Proposed Rule
Federal Register / Vol. 77 , No. 132 / Tuesday, July 10, 2012 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0062; 4500030114]
RIN 1018-AW85
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Buena Vista Lake Shrew
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; revision and reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce
that we are further revising our proposed revised designation of
critical habitat for the Buena Vista Lake shrew (Sorex ornatus
relictus) under the Endangered Species Act of 1973, as amended (Act).
In 2009, we proposed to revise our critical habitat designation to
consist of 4,649 acres (1,881 hectares) of land in five units in Kern
County. That acreage has been recalculated, with use of current
Geographic Information Systems technology, as 4,657 acres (1,885
hectares). In this revised proposal, we propose to add 525 acres (212
hectares) as critical habitat in the general areas of Kings and Kern
Counties, California, including new units near Lemoore, Kings County,
and near Semitropic, Kern County, California. In total, we are now
proposing to designate approximately 5,182 acres (2,098 hectares) as
critical habitat for the Buena Vista Lake shrew. We are reopening the
comment period to allow interested parties an opportunity to comment on
the proposal to revise the designation of critical habitat for the
Buena Vista Lake shrew as proposed to be further revised in this
document.
DATES: We will accept comments received or postmarked on or before
September 10, 2012. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date. We must receive requests
for public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by August 24, 2012.
ADDRESSES: You may submit comments by one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov. Search
for Docket No. FWS-R8-ES-2009-0062 and then follow the instructions for
submitting comments.
(2) U.S. mail or hand-delivery: Public Comments Processing, Attn:
FWS-R8-ES-2009-0062; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM;
Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, W-2605, Sacramento, CA 95825; telephone 916-414-6600;
facsimile 916-414-6713. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This is a proposed revised
designation of critical habitat for the endangered Buena Vista Lake
shrew under the Endangered Species Act. Under the Act, any species that
is determined to be a threatened or endangered species requires
designated critical habitat. We must issue a rule to designate critical
habitat. In total, approximately 5,182 acres of critical habitat for
the Buena Vista Lake shrew in Kings and Kern Counties, California, fall
within the boundaries of the revised critical habitat designation as
proposed in this rule.
We designated critical habitat for this species in 2005. As part of
a settlement agreement, we agreed to reconsider the designation, and
published a proposed revised designation for the Buena Vista Lake shrew
in the Federal Register on October 21, 2009 (74 FR 53999). Based on new
information, we are submitting a revised proposal to designate critical
habitat for the Buena Vista Lake shrew to the Federal Register on or
before the June 29, 2012, settlement date (see Table 1 for additional
areas).
Table 1--Revisions and Additional Areas, in Acres, That We Are Including as Proposed Critical Habitat
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Critical habitat unit Total State Private
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Unit 4, Coles Levee *.......................................................... 270 46 223
Unit 6, Semitropic Ecological Reserve Unit..................................... 372 345 27
Unit 7, Lemoore Wetland Unit................................................... 97 ......... 97
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Total...................................................................... 739 391 347
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* Addition of 56 acres from 2009 proposal.
The basis for our action. Under the Endangered Species Act, any
endangered or threatened species must have a designated critical
habitat. We are required to base the designation on the best available
scientific data after taking into consideration economic and other
impacts. The Secretary can exclude an area from critical habitat if the
benefits of exclusion outweigh the benefits of designation, unless the
exclusion will result in the extinction of the species.
We will prepare a revised draft economic analysis. On April 28,
2011, we announced in the Federal Register (76 FR 23781) the
availability of our draft economic analysis of the 2009 proposed
revised designation. That economic analysis did not identify any areas
with disproportionate costs associated with the designation. To ensure
that we consider the economic impacts of this current proposal, we will
revise the draft economic analysis. We will revise the draft economic
analysis to include the economic impacts of the additional areas
identified in the current revised proposal.
We will incorporate peer review. We sought comments and information
from independent specialists to ensure that our 2009 proposed critical
habitat designation was based on scientifically sound data,
assumptions, and analyses. We invited these peer reviewers to comment
on our specific assumptions and conclusions in the critical habitat
designation. We will again seek peer review on this revised proposal to
revise critical habitat designation. Information
[[Page 40707]]
we received from peer review will be incorporated in the final revised
designation.
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. We will accept written
comments and information during this reopened comment period on the
revisions herein as well as the proposed revised designation of
critical habitat for the Buena Vista Lake shrew that was published in
the Federal Register on October 21, 2009 (74 FR 53999), and on the
draft economic analysis (DEA) of the 2009 proposed designation and the
amended required determinations provided in the April 28, 2011, Federal
Register (76 FR 23781) document. If you submitted comments or
information on the 2009 proposed rule (74 FR 53999, October 21, 2009
and 76 FR 23781, April 28, 2011) during any of the previous comment
periods, 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. You may submit your
comments and materials concerning this revised proposed rule, the 2009
proposed rule, the DEA associated with the 2009 proposed rule, and the
amended required determinations by one of the methods listed in
ADDRESSES.
We request comments or information from other concerned government
agencies, the scientific community, industry, or any other interested
party concerning the proposal to revise the designation of critical
habitat for the Buena Vista Lake shrew, as revised herein. We
particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(2) Specific information on:
(a) The amount and distribution of Buena Vista Lake shrew habitat,
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why,
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change,
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why, and
(e) Areas identified in this revision to the proposal to revise
critical habitat that should not be proposed as critical habitat and
why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed revised critical
habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Buena Vista Lake shrew and proposed revised
critical habitat.
(5) Information that may assist us in identifying or clarifying the
physical and biological features essential to the conservation of the
Buena Vista Lake shrew, especially as they relate to habitat conditions
for the Buena Vista Lake shrew at Atwell Island, Tulare County.
(6) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, any impacts on small entities or families,
and the benefits of including or excluding areas that exhibit these
impacts.
(7) Specific information on the taxonomy of the Buena Vista Lake
shrew, especially in relationship to the adorned, or Southern
California, ornate shrew (Sorex ornatus ornatus) and their respective
ranges.
(8) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(9) Whether the potential exclusion of the Kern Fan Recharge Unit
(Unit 3) under section 4(b)(2) of the Act, which is covered by the
Buena Vista Lake Shrew Special Management Plan for Kern Fan Water
Recharge Site, and Addendum, from final critical habitat is or is not
appropriate, whether the benefits of excluding any specific area
outweigh the benefits of including that area as critical habitat and
why, and whether such an exclusion may or may not lead to the species'
extinction.
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. You may request
at the top of your document that we withhold personal information such
as your street address, phone number, or email address from public
review; however, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. In a July 9,
2009, settlement agreement, the Service agreed to publish a new
proposal of critical habitat for the species which encompassed the same
geographic area as the August 19, 2004 (69 FR 51417) proposed
designation. On October 21, 2009, the Federal Register published our
proposed revised designation of critical habitat (74 FR 53999), in
which we proposed five critical habitat units in Kern County totaling
4,649 acres (ac) (1,881 hectares (ha)). That acreage has been
recalculated, with use of current Geographic Information Systems
technology, as 4,657 ac (1,885 ha). In this revised proposal to revise
the designation, we are notifying the public of several changes made to
the 2009 proposed critical habitat. We are now adding two new critical
habitat units to our proposal and revising Unit 4 (Cole's Levee) to
include a newly discovered occurrence just to the north of the existing
unit. Second, we are updating the descriptions of previously proposed
units, and revising the criteria and methods sections to accommodate
newer geographical information systems technologies. This revised
proposed rule incorporates new information on the distribution and
presence of the Buena Vista Lake shrew that was not available at the
time that we completed our 2009 proposed revised critical habitat rule.
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A summary of the information that is relevant to this revised
proposed critical habitat designation is provided below. For more
information on previous Federal actions concerning the Buena Vista Lake
shrew, refer to the proposed revised designation of critical habitat
published in the Federal Register on October 21, 2009 (74 FR 53999).
Additional relevant information may be found in the final rule to
designate critical habitat for the Buena Vista Lake shrew published on
January 24, 2005 (70 FR 3437). For more information on the Buena Vista
Lake shrew or its habitat, refer to the final listing rule published in
the Federal Register on March 6, 2002 (67 FR 10101), which is available
online at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0062,
or by mail from the Sacramento Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
Species Description
The Buena Vista Lake shrew (Sorex ornatus relictus) is one of nine
subspecies within the ornate shrew (Sorex ornatus) species complex
known to occur in California (Hall 1981, pp. 37, 38; Owen and Hoffmann
1983, pp. 1-4; Maldonado 1992, p. 3). The Buena Vista Lake shrew is a
mammal, approximately the size of a mouse. Like other shrews, the
subspecies has a long snout, tiny bead-like eyes, ears that are
concealed, or nearly concealed by soft fur, and five toes on each foot
(Burt and Grossenheider 1964, p. 2; Ingles 1965, pp. 81-84). Shrews are
active day or night. When they are not sleeping, they are searching for
food (Burt and Grossenheider 1964, p. 3).
Grinnell (1932) was the first to describe the Buena Vista Lake
shrew as a new subspecies, based on the type specimen and two other
specimens collected around the old Buena Vista Lake bed. A single
specimen of the shrew had previously been collected in October 1909, at
Buttonwillow, a town approximately 25 miles (mi) (40 kilometers (km))
northwest of Buena Vista Lake (Williams 1986, p. 13; Long 1998, p. 1;
California Academy of Sciences 2012). According to Grinnell's
description, the Buena Vista Lake shrew's back is predominantly black
with a buffy-brown speckling pattern, its sides are more buffy-brown
than the upper surface, and its underside is smoke-gray. The tail is
faintly bicolor and blackens toward the end both above and below. The
Buena Vista Lake shrew differs from its geographically closest
subspecies, the adorned ornate shrew (Sorex ornatus ornatus), by having
darker, grayish-black coloration, rather than brown. In addition, the
Buena Vista Lake shrew has a slightly larger body size; shorter tail;
skull with a shorter, heavier rostrum; and a higher and more angular
brain-case in dorsal view (Grinnell 1932, pp. 389, 390).
Grinnell (1932, p. 390) noted evidence that integration between the
adorned and the Buena Vista Lake shrew subspecies occurred in areas of
geographic overlap. This integration prompted Freas (1990, pp. 2, 3) to
question the legitimacy of the Buena Vista Lake shrew's status as a
subspecies distinct from the broader-ranging adorned ornate shrew.
Since the 1990s, the Sorex ornatus complex (consisting of eight
subspecies in California and one in Baja California) has been the
subject of genetic and morphological evaluation (Maldonado 1998).
Preliminary results from strictly morphological measurements for this
group did not clarify distribution of the various subspecies throughout
California. However, mitochondrial DNA and microsatellite, nuclear
sequences, and allozyme data have aided in determining subspecies'
ranges. From these data, researchers determined that the Buena Vista
Lake shrew is a distinct subspecies from other ornate shrew subspecies;
and that it is unlike any other sampled throughout the southern San
Joaquin Valley (Maldonado 1998), although later authors noted the
unsettled taxonomy of ornate shrews (Williams and Harpster 2001, pp.
13, 16). Recent evaluation of the best available scientific information
on the ornate shrews has indicated, based on analysis of mitochondrial
DNA, that the shrew occurrences in the Tulare Basin group together with
the Buena Vista Lake Shrew (Maldonado 2011 unpaginated; Service 2011
unpaginated; Sacks 2011, unpaginated), although not all species experts
agree that methods and genetic sampling are adequate to reach a
conclusion (Patton 2011, pp. 1-5). We recognize that there continue to
be questions regarding the taxonomy of ornate shrews found in specific
localities within the Tulare Basin; however, our current proposal is
based on the currently accepted description of the Buena Vista Lake
shrew (Grinnell 1932) and the best available science.
Life History
Ornate shrews, on the average, rarely live longer than 12 months,
and evidence indicates that the normal lifespan does not exceed 16
months (Rudd 1955, p. 328). The Buena Vista Lake shrew has a breeding
season that begins in February or March, and may either extend later in
the year, based on habitat quality and availability of water, or end
with the onset of the dry season in May or June (Maldonado 1998). The
majority of females give birth in the spring, and produce a single
litter containing four to six young. Within a population, the number of
litters produced per year depends on how early or late in the year the
young are born; adults are sexually active in spring, while some young-
of-the-year that are born early in the year become sexually active by
late summer (Owen and Hoffmann 1983, p. 4). Because the life expectancy
of most shrews is 12 to 16 months (Rudd 1955, p. 328), most individuals
probably produce no more than two litters in their lifetime, with
population replacement occurring annually (Collins 1998).
Shrews are primarily insectivorous. Due to their high rate of
metabolism relative to their capacity for energy storage (McNab 1991,
p. 35), they must eat more than their own weight each day (Burt and
Grossenheider 1964, p. 3) in order to withstand starvation and maintain
their body weight. Shrews in this family can have an impact on
surrounding plant communities by consuming large quantities of insects,
slugs, and other invertebrates that can influence such things as plant
succession and the irruptions (population dynamics) of pest insects
(Williams 1991, p. 1). The Buena Vista Lake shrew also may be an
important prey species for raptors, snakes, and mammalian predators,
such as foxes and skunks (Maldonado 1992, p. 7).
Distribution and Historical Range
The Buena Vista Lake shrew was likely historically distributed in
the marshlands of the San Joaquin Valley throughout most of the Tulare
Basin (Grinnell 1933, p. 83). The Tulare Basin, essentially occupying
the southern half of the San Joaquin Valley, had no regular outlet to
the ocean and contained Buena Vista, Kern, and Tulare Lakes. These
lakes were fed by the Kern, Kaweah, Tule, and Kings rivers and their
tributaries, and were interconnected by hundreds of square miles of
tule marshes and other permanent and seasonal lakes, wetlands, and
sloughs (Williams and Harpster 2001, p. 13). Tulare Lake was the
largest freshwater lake in the United States west of the Mississippi
River. However, by the time the Buena Vista Lake shrew was discovered,
the beds of these lakes were already dry and mostly cultivated, with
only sparse remnants of the original fauna (Grinnell 1932, p. 1). Today
the lakes and wetlands have been drained and converted into irrigated
agricultural fields, though portions of
[[Page 40709]]
the historical lake beds fill with water in years of extraordinary
runoff (Williams and Kilburn 1992, p. 329).
Habitat Characteristics
As discussed in detail in the Critical Habitat section below, the
Buena Vista Lake shrew is closely associated with dense, riparian
understories that provide food, cover, and moisture (Maldonado 1992, p.
5). Moisture is required to support a diverse insect fauna, which is
the primary food source needed to maintain the Buena Vista Lake shrew's
high metabolism. During surveys conducted at Kern Lake Preserve in 1988
and 1990, Freas (1990, p. 8) found that the Buena Vista Lake shrew
preferred mesic (moderately moist) habitats over xeric (drier)
habitats, with 25 animals being captured in the mesic environments and
none in xeric habitat. Maldonado (1992, p. 5) also acknowledged this
type of habitat preference, stating that the Buena Vista Lake shrew is
closely associated with dense, riparian understories that provide food,
cover, and moisture. He also noted that moist soil in areas with an
overstory of willows or cottonwoods appears to be favored, but may not
be an essential habitat feature (Williams and Harpster 2001, p. 13;
Maldonado 2011).
The mesic, lower elevation range of the Buena Vista Lake shrew is
almost completely surrounded by the semi-arid, higher elevation range
of the adorned ornate shrew (Grinnell 1933, pp. 82, 83; Hall 1981, p.
38; Owen and Hoffman 1983, p. 2: Maldonado et al. 2001, p. 127).
Grinnell (1932, p. 390) noted that adorned ornate shrews occupied the
uplands along streamside habitat and intergraded with the lowland Buena
Vista Lake shrews along the lower courses of streams that enter the
Kern-Tulare basin.
New Information Specific to Buena Vista Lake Shrew Distribution
At the time of listing, the Buena Vista Lake shrew was identified
as occurring in four isolated locations along an approximately 70-mile
(mi) (113-kilometer (km)) stretch on the west side of the Tulare Basin:
At the former Kern Lake Preserve on the old Kern Lake bed, the Kern Fan
water recharge area, Coles Levee, and the Kern National Wildlife Refuge
(Kern NWR) (67 FR 10101; March 6, 2002). By the time that critical
habitat was proposed in 2004, a fifth occurrence of the Buena Vista
Lake shrew had been identified at the historical lake bed of Goose
Lake. During the same general period, continuing surveys of riparian
and upland habitat resulted in capture of ornate shrews at several
additional locations within the Tulare Basin, including Kern, Kings,
and Tulare Counties, although the shrews were not identified to the
subspecies level (Williams and Harpster 2001, p. 14; Endangered Species
Recovery Program (ESRP) 2005, p. 1; Maldonado 2006, p. 5). In 2011,
during our 5-year status review of the Buena Vista Lake shrew, we
obtained additional information indicating that the shrews at these
localities would be considered Buena Vista Lake shrews (Williams and
Harpster 2001, p. 16; Maldonado 2011; Service 2011, pp. 6-9). Two of
the occurrences (Lemoore and Semitropic Ecological Preserve (also known
as Main Drain or Chicca and Sons)) are located within general riparian
and wetland habitat known to be suitable for the Buena Vista Lake
shrew; however, the third location (Atwell Island) does not match the
habitat that has previously been described for the shrew and does not
contain the physical or biological features identified as essential for
the conservation of the Buena Vista Lake shrew (see Critical Habitat
section). Additional information below describes what is now known
about the Buena Vista Lake shrew at these locations.
At the time of publication of our 5-year review, surveys for Buena
Vista Lake shrews had been conducted at 21 sites and the Buena Vista
Lake shrew had been determined to be present in 8 of the sites
(Williams and Harpster 2001, pp. 8-14; ESRP 2005, p. 1; Maldonado 2006,
p. 5; Cypher 2010). Although shrews at the Semitropic, Lemoore, and
Atwell Island locations had not been previously identified to
subspecies in Maldonado 2006, communication between Service staff and
species experts classified them as Buena Vista Lake shrews (Maldonado
2011). Trapping for Buena Vista Lake shrews has also been completed on
the Tule Elk Preserve, Pixley National Wildlife Refuge (NWR), Lake
Woollomes, the Nature Conservancy's Paine Wildflower Preserve, the Kern
Water Bank, the Voice of America site west of Delano, Kern River
Parkway, a parcel between Kern and Buena Vista Lakes owned by the
Bureau of Land Management (BLM), the Buena Vista Lake Recreation Area,
and Wind Wolves Preserve.
No shrews were detected at any location (Williams 1986, p. 3;
Williams and Harpster 2001, pp. 6-12), with the exception of the Wind
Wolves Preserve. However, the shrews detected at Wind Wolves Preserve
are expected to be adorned ornate shrews based on mitochondrial DNA
analysis of one tissue sample available from that location (Maldonado
2006, pp. 9, 16-19; Cypher 2010, p. 1; Maldonado 2011, pp. 1, 2).
Several areas north of the Tulare Lake bed, including Tranquility,
Helm, and the Los Banos Wildlife Area, hosted extremely high numbers of
ornate shrews in several successful trapping outings, but the shrews
collected in those locations were also likely to be the adorned ornate
shrew, based on analysis of mitochondrial DNA and
microsatellites.(Maldonado 2006, pp. 16-19; Maldonado 2011, pp. 1, 2).
In 1999 and 2000, shrews, which were not identified to subspecies,
were captured during a restoration study on a farmland site that had
been recently retired at the BLM Atwell Island site, located
approximately 2 mi (3.2 km) south of Alpaugh in Tulare County. As
described above, these shrews have recently been determined to be Buena
Vista Lake shrews; however, the habitat in which they've been located
does not match their known wetland habitat. In 1999, most of the
captures were on ground that was planted to sugar beets and cotton the
previous year. Between 1999 and 2000, a cover crop of barley was
planted and harvested on most of the acreage, while a small portion of
the area had been fallow longer than 5 years and had a cover of weedy,
mostly exotic, annual plants (Williams and Harpster 2001, p. 13). The
area has had a long history of irrigated agriculture, with the site
surrounded by intensively farmed, irrigated cropland, thus indicating
that the location did not match the available descriptions of Buena
Vista Lake shrew habitat.
Because shrews were found in an atypical location, surrounded by
intensively farmed, irrigated cropland, their discovery led to
speculation that the shrews either were able to persist on site during
cultivation of irrigated row crops or dispersed to the site after it
was fallowed (Williams and Harpster 2001, pp. 13, 14). Although the
site is located within an area that was historically classified as
wetland, there is no wetland or riparian vegetation in the areas in
which the shrews were found and the nearest water source is over three-
quarters of a mile (1.2 km) to the north. The lack of typical shrew
habitat components, such as standing water and dense riparian
vegetation, have left us to speculate that shrews may persist here due
to relatively localized deep cracks in the particular clay soils
present in this portion of Atwell Island and the abundance of rodent
burrows also present here, both of which may provide additional
moisture, invertebrate prey, and cover for the shrews. Currently, this
occurrence represents an anomaly that does not correspond to the common
[[Page 40710]]
information on Buena Vista Lake shrew preferences and needs, and we do
not have sufficient information to determine long-term suitability of
this habitat type for Buena Vista Lake shrews. We seek additional
information on occurrence of shrews in habitat other than wetland and
riparian habitat within the Tulare Basin, and on the suitability of
this habitat type for Buena Vista Lake shrews.
New Information on Taxonomy
Since the designation of critical habitat in 2005, additional
genetic analysis has been conducted to evaluate the patterns of genetic
variation within the ornate shrew complex, including the Buena Vista
Lake shrew, in the central and southern San Joaquin Valley (Maldonado
2006, p. 16). Maldonado (2006) analyzed microsatellite data and found 5
genetic groupings among the 117 samples that had been collected from 10
localities in the central-southern San Joaquin Valley. The five
groupings are: (1) Tranquility and Helm; (2) Kern NWR, Kern Fan area,
Atwell Island, Goose Lake, and Lemoore; (3) Coles Levee; (4) Kern Lake;
and (5) Main Drain (Semitropic) (Maldonado 2006, pp. 16-20). Maldonado
(2006, p. 14) determined that the levels of relatedness among the five
groupings suggest that populations south of Tranquility and Helm form
four distinct population groupings. However, because sample sizes from
the localities are small, reflecting the rarity of the shrew in these
locations, Maldonado emphasized that it is difficult to draw
conclusions from the results (Maldonado 2006, pp. 17-19). In our 5-year
status review of the subspecies, we reviewed the information above and
reviewed the proximity of the various occurrence records. We concluded
that the best available information indicates that the populations
found south of Tranquility and Helm form four distinct groupings of
Buena Vista Lake shrew, while populations at Tranquility and Helm are
not the listed species (Service 2011, pp. 9, 10).
Previous Federal Actions
On October 21, 2009, the Service published a revised proposed
designation of critical habitat for the Buena Vista Lake shrew (74 FR
53999) encompassing the same geographic area as the August 19, 2004 (69
FR 51417), proposed designation. The Service published a document on
April 28, 2011 (76 FR 23781), announcing the reopening of the comment
period for the revised proposed critical habitat designation, the
associated draft economic analysis, and the amended required
determinations. This document also announced a public hearing, which
was held in Bakersfield, California, on June 8, 2011. On March 6, 2012,
the Service was granted an extension by the Court to consider
additional information on the shrew that was identified during the 5-
year review process (Center for Biological Diversity v. Kempthorne et
al., Case 1:08-cv-01490-AWI-GSA, filed March 7, 2012). The extension
provides for submission of a revised proposed rule to the Federal
Register on or before June 29, 2012, with submission of a final rule on
or before June 29, 2013.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographic area occupied by the species at the time it
was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are the
elements of physical or biological features that are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographic area
occupied by the species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species. For
example, an area currently occupied by the species but that was not
occupied at the time of listing may be essential to the conservation of
the species and may be included in the critical habitat designation. We
designate critical habitat in areas outside the geographic area
occupied by a species only when a designation limited to its range
would be inadequate to ensure the conservation of the species.
[[Page 40711]]
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. 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 (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographic area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection.
These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographic, and ecological
distributions of a species.
We derive the specific physical or biological features required for
the shrew from studies of the species habitat, ecology, and life
history as described below. Additional information can be found in the
final listing rule published in the Federal Register on March 6, 2002
(67 FR 10101), the Recovery Plan for Upland Species of the San Joaquin
Valley, California (Service 1998), and the Five-Year Review of the
Buena Vista Lake Ornate Shrew (Service 2011). We have determined that
the following physical or biological features are essential for the
Buena Vista Lake shrew:
Space for Individual and Population Growth and Normal Behavior
Historically, the Buena Vista Lake shrew was 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 on the valley floor
below elevations of 350 feet (ft) (107 meters (m)) (Grinnell 1932 p.
389; Hall 1981 p. 38; Williams and Kilburn 1984 p. 953; Williams 1986
p. 13; Service 1998 p. 163). With the draining and conversion of the
majority of the Buena Vista Lake shrew's natural habitat from wetland
to agriculture, and the channelization of riparian corridors for water
conveyance structures, the vegetative communities associated with the
Buena Vista Lake shrew were lost or degraded, and nonnative plant
species replaced those associated with the shrew (Grinnell 1932 p. 389;
Mercer and Morgan 1991 p. 9; Griggs 1992 p. 11; Service 1998 p. 163).
Open water does not appear to be necessary for the survival of the
shrew. The habitat where the shrew has been found contains areas with
both open water and mesic environments (Maldonado 1992 p. 3; Williams
and Harpster 2001 p. 12). However, 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 diversity and availability.
Current survey information has identified eight areas where the
Buena Vista Lake shrew has been found in recent years (Maldonado 2006
p. 16; Williams and Harpster 2001 p. 1; ESRP 2005 p. 11): the former
Kern Lake Preserve (Kern Preserve) on the old Kern Lake bed, the Kern
Fan water recharge area, Coles Levee Ecological Preserve (Coles Levee),
the Kern National Wildlife Refuge (Kern NWR), the Goose Lake slough
bottoms (Goose Lake), the Atwell Island land retirement demonstration
site (Atwell Island), the Lemoore Wetland Reserve, and the Semitropic
Ecological Reserve (also known as Main Drain or Chicca and Sons). Based
on changes in the native habitat composition and structure, and
descriptions of the habitat where the Buena Vista Lake shrew have been
found, we identify habitat adjacent to, or within, a matrix of
perennial and intermittent wetland habitats along riparian corridors,
marsh edges, and other palustrine (marsh type) habitats as physical
features that are needed by the Buena Vista Lake shrew.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
The specific feeding and foraging habits of the Buena Vista Lake
shrew are not well known. In general, shrews primarily feed on insects
and other animals, mostly invertebrates (Harris 1990 p. 2; Maldonado
1992 p. 6). Food
[[Page 40712]]
probably is not cached and stored, so the shrew must forage
periodically day and night to maintain its high metabolic rate (Burt
and Grossenheider 1964, p. 3).
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 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 p. 3). Therefore, based
on the information above, we identify a consistent and diverse supply
of invertebrate prey to be an essential component of the biological
features essential for the conservation of the Buena Vista Lake shrew.
Cover or Shelter
The vegetative communities associated in general with Buena Vista
Lake shrew occupancy are characterized by the presence of (but are not
limited to): Populus fremontii (Fremont cottonwood), Salix spp.
(willows), Salicornia spp. (glasswort), Elymus spp. (wild-rye grass),
Juncus spp. (rush grass), and other emergent vegetation (Service 1998,
p. 163). These communities are present at all sites but Atwell Island.
In addition, Maldonado (1992, p. 6) found shrews in areas of moist
ground that was covered with leaf litter and near other low-lying
vegetation, branches, tree roots, and fallen logs; or in areas with
cool, moist soil beneath dense mats of vegetation that were kept moist
by proximity to the water line. He described specific habitat features
that would provide suitable habitat for the shrew: (1) Dense vegetative
cover; (2) a thick, three-dimensional understory layer of vegetation
and felled logs, branches, and detritus or 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, p. 12) determined that, although moist soil in
areas with an overstory of willows or cottonwoods appeared to be
favored, they doubted that such overstory was essential.
The communities in which Buena Vista Lake shrews have primarily
been found are characterized by dense mats of leaf litter or herbaceous
vegetation. The insect prey of the shrew also thrives in the dense
matted vegetation. Although shrews have also been found at Atwell
Island, in an area largely devoid of vegetation but characterized by
deep cracks in the soils, little is currently known of the shrew or
habitat needs at this site.
The Buena Vista Lake shrew is preyed upon by small mammalian
predators as well as by avian predators (Maldonado 1992, p. 7). Dense
vegetative structure provides the cover or shelter essential for
evading predators. It also serves as habitat for breeding and
reproduction, and allows for the protection and rearing of offspring
and the growth of adult shrews. Therefore, based on the information
above, we identify riparian and wetland communities, and areas with
suitable soil moisture that support a complex vegetative structure with
a thick cover of leaf litter or dense mats of low-lying vegetation to
be the essential components of the physical and biological features
essential to the conservation of the species.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Little is known about the reproductive needs of the Buena Vista
Lake 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 2000, p. 12). The edges of wetland or
marshy habitat provide the shrew with a sheltered and hospitable
environment, and provide a prey base that enables the shrew to give
birth and raise its young. The dense vegetative understory also
provides young with cover from predators. Dense vegetation also allows
for the soil moisture necessary for a consistent supply of terrestrial
and aquatic insect prey (Freas 1990, p. 8; Kirkland 1991, p. 15;
Maldonado 1992, p. 3; Maldonado et al. 1998, p. 1; Ma and Talmage 2001,
p. 123).
Habitats Protected From Disturbance or Representative of the
Historical, Geographic, and Ecological Distributions of the Species
Preserving what little habitat remains for the Buena Vista Lake
shrew is crucial to the survival of the species. There are many factors
negatively impacting and restricting the shrew and its habitat,
including selenium toxicity, habitat fragmentation, urban development,
and the effects of climate change. The combined effects of climate
change and habitat fragmentation have put immense pressure on species
in highly developed areas like the San Joaquin Valley (Hannah and
Lovejoy 2005, p. 4). Development has restricted the species to small
islands of habitat with little to no connectivity or opportunity for
expansion of its range. Climate change is a particular challenge for a
variety of species because the interaction between additional stressors
associated with climate change and current stressors could push species
beyond their ability to survive (Lovejoy 2005, pp. 325-326), including
the Buena Vista Lake shrew.
Climate Change
Our analyses under the Endangered Species Act include consideration
of ongoing and projected changes in climate. The terms ``climate'' and
``climate change'' are defined by the Intergovernmental Panel on
Climate Change (IPCC). The term ``climate'' refers to the mean and
variability of different types of weather conditions over time, with 30
years being a typical period for such measurements, although shorter or
longer periods also may be used (IPCC 2007a, p. 78). The term ``climate
change'' thus refers to a change in the mean or variability of one or
more measures of climate (such as, temperature or precipitation) that
persists for an extended period, typically decades or longer, whether
the change is due to natural variability, human activity, or both (IPCC
2007a, p. 78).
Scientific measurements spanning several decades demonstrate that
changes in climate are occurring, and that the rate of change has been
faster since the 1950s. Examples include warming of the global climate
system, and substantial increases in precipitation in some regions of
the world and decreases in other regions. (For these and other
examples, see IPCC 2007a, p. 30; and Solomon et al. 2007, pp. 35-54,
82-85). Results of scientific analyses presented by the IPCC show that
most of the observed increase in global average temperature since the
mid-20th century cannot be explained by natural variability in climate,
and is ``very likely'' (defined by the IPCC as 90 percent or higher
probability) due to the observed increase in greenhouse gas (GHG)
concentrations in the atmosphere as a result of human activities,
particularly carbon dioxide emissions from use of fossil fuels (IPCC
2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al. 2007, pp.
21-35). Further confirmation of the role of GHGs comes from analyses by
Huber and Knutti (2011, p. 4), who concluded it is
[[Page 40713]]
extremely likely that approximately 75 percent of global warming since
1950 has been caused by human activities.
Scientists use a variety of climate models, which include
consideration of natural processes and variability, as well as various
scenarios of potential levels and timing of GHG emissions, to evaluate
the causes of changes already observed and to project future changes in
temperature and other climate conditions (e.g., Meehl et al. 2007,
entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et al. 2011, pp.
527, 529). All combinations of models and emissions scenarios yield
very similar projections of increases in the most common measure of
climate change, average global surface temperature (commonly known as
global warming), until about 2030. Although projections of the
magnitude and rate of warming differ after about 2030, the overall
trajectory of all the projections is one of increased global warming
through the end of this century, even for the projections based on
scenarios that assume that GHG emissions will stabilize or decline.
Thus, there is strong scientific support for projections that warming
will continue through the 21st century, and that the magnitude and rate
of change will be influenced substantially by the extent of GHG
emissions (IPCC 2007a, pp. 44-45; Meehl et al. 2007, pp. 760-764 and
797-811; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, pp.
527, 529). (See IPCC 2007b, p. 8, for a summary of other global
projections of climate-related changes, such as frequency of heat waves
and changes in precipitation. Also see IPCC 2011(entire) for a summary
of observations and projections of extreme climate events.)
Various changes in climate may have direct or indirect effects on
species. These effects may be positive, neutral, or negative, and they
may change over time, depending on the species and other relevant
considerations, such as interactions of climate with other variables
(e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). Identifying
likely effects often involves aspects of climate change vulnerability
analysis. Vulnerability refers to the degree to which a species (or
system) is susceptible to, and unable to cope with, adverse effects of
climate change, including climate variability and extremes.
Vulnerability is a function of the type, magnitude, and rate of climate
change and variation to which a species is exposed, its sensitivity,
and its adaptive capacity (IPCC 2007a, p. 89; see also Glick et al.
2011, pp. 19-22). There is no single method for conducting such
analyses that applies to all situations (Glick et al. 2011, p. 3). We
use our expert judgment and appropriate analytical approaches to weigh
relevant information, including uncertainty, in our consideration of
various aspects of climate change.
Current climate change projections for terrestrial areas in the
Northern Hemisphere indicate warmer air temperatures, more intense
precipitation events, and increased summer continental drying (Field et
al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p.
6; IPCC 2007, p. 1181). Climate change may lead to increased frequency
and duration of severe storms and droughts (McLaughlin et al. 2002, p.
6074; Cook et al. 2004, p. 1015; Golladay et al. 2004, p. 504). Climate
projections for smaller subregions such as California remain uncertain.
However, modeling of hydrological responses to potential climate change
in the San Joaquin watershed suggests that the hydrological system is
very sensitive to climatic variations on a monthly and annual basis,
with changes in crop phenology and water use suggested (Ficklin et al.
2009, pp. 25-27).
Use of downscaled climate modeling for the Sacramento-San Joaquin
River Basin shows projected warming, with substantial decadal and
interannual variability and altered streamflow seasonality in the
southern San Joaquin Valley, suggesting that water infrastructure
modifications would be needed to address changing conditions
(Vanrheenen et al. 2004, pp. 1, 265-279). Due to the Buena Vista Lake
shrew's reliance on dense riparian vegetation and adequate moisture in
wetland areas, either increased drying of its home range or changes in
water delivery practices that reduce water runoff could negatively
affect the shrew, while increases in runoff could benefit the shrew.
However, at this time we lack adequate information to make projections
regarding the specific effects of climate change and its associated
impacts on the Buena Vista Lake shrew and its habitat.
Primary Constituent Elements for the Buena Vista Lake Shrew
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Buena Vista Lake shrew in areas occupied at the
time of listing, focusing on the features' primary constituent
elements. We consider primary constituent elements to be those
components of the physical or biological features that provide for a
species' life-history processes and are essential to the conservation
of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements for the Buena Vista Lake shrew are:
Permanent and intermittent riparian or wetland communities that
contain:
A complex vegetative structure with a thick cover of leaf
litter or dense mats of low-lying vegetation. Associated plant species
can include, but are not limited to, Fremont cottonwoods, willows,
glasswort, wild-rye grass, and rush grass. Although moist soil in areas
with an overstory of willows or cottonwoods appears to be favored, such
overstory may not be essential.
Suitable moisture supplied by a shallow water table,
irrigation, or proximity to permanent or semipermanent water; and
A consistent and diverse supply of prey. Although the
specific prey species utilized by the Buena Vista Lake shrew have not
been identified, ornate shrews are known to eat a variety of
terrestrial and aquatic invertebrates, including amphipods, slugs, and
insects.
With this proposed designation of critical habitat, we intend to
identify the physical or biological features essential to the
conservation of the species, through the identification of the
features' primary constituent elements sufficient to support the life-
history processes of the species. All units and subunits proposed to be
designated as critical habitat are currently occupied by the Buena
Vista Lake shrew.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographic area occupied by the species at the time of
listing contain features that are essential to the conservation of the
species and that may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats:
All areas included in this proposed revision of critical habitat
will require some level of management to address the current and future
threats to the physical and biological features essential to the
conservation of the Buena Vista Lake shrew. Special management
considerations or protection may be required to minimize habitat
destruction, degradation, or
[[Page 40714]]
fragmentation associated with such threats as the following: Changes in
the water supply allocations, water diversions, flooding, oil and gas
extraction, nonnative vegetation, and agriculture. For example, the
Coles Levee area is within the boundaries of a proposed oil and gas
exploration proposal. Agricultural pressures to convert land to
agriculture remain in the southern San Joaquin Valley, with
unauthorized agricultural conversion to orchards noted to have occurred
recently in the general area.
The designated units are located in areas characterized by large-
scale agricultural production, and consequently, the units may be
exposed to a number of pesticides, which could detrimentally impact the
species. The Buena Vista Lake shrew currently exists on small remnant
patches of natural habitat in and around the margins of a landscape
that is otherwise dominated by agriculture. The Buena Vista Lake shrew
could be directly exposed to lethal and sublethal concentrations of
pesticides from drift during spraying of crops, or potentially directly
exposed during herbicide treatment of canal zones and ditch banks,
wetland or riparian edges, or roadsides where shrews might exist.
Reduced reproduction in Buena Vista Lake shrews could be directly
caused by pesticides ingested through grooming, and secondarily from
feeding on contaminated insects (Sheffield and Lochmiller 2001, p.
284). A variety of toxicants, including pesticides and heavy metals,
have been shown to negatively affect insectivores, including shrews,
that have a high basal metabolism and tight energy balance. Treatment-
related decreases in invertebrate prey availability may be especially
significant to such insectivore populations (Ma and Talmage 2001, pp.
133-152).
The Buena Vista Lake shrew also faces high risks of extinction from
random catastrophic events (such as floods or drought (Service 1998, p.
163). The low numbers of Buena Vista Lake shrews located in small
isolated areas increases the risk of a random catastrophic event wiping
out entire populations or severely diminishing Buena Vista Lake shrew
numbers beyond the scope of recovery. These threats and others
mentioned above could render the habitat less suitable for the Buena
Vista Lake shrew by washing away leaf litter and complex vegetation
structure (floods) or drying wetland habitat so that vegetative and
prey communities die (drought), and special management may be needed to
address these threats.
In summary, the critical habitat units identified in this
designation may require special management considerations or protection
to provide a functioning hydrological regime to maintain the requisite
riparian and wetland habitat, which is essential in providing the space
and cover necessary to sustain the entire life-cycle needs of the
shrew, as well as its invertebrate prey. Changes in water supply could
result in the alteration of the moisture regime, which could lead to
reduced water quality or hydroperiod, loss of suitable invertebrate
supply for feeding, and loss of complex vegetative structure for cover.
The units may also require special management considerations due to
ongoing pressures for agricultural conversion and oil and gas
exploration, and pesticide use, and vulnerabilities associated with low
population size and population fragmentation.
Summary of Changes From Previously Proposed Critical Habitat
On January 24, 2005, we designated 84 ac (34 ha) in Kern County,
California, as critical habitat for the Buena Vista Lake shrew (70 FR
3438). On October 21, 2009, we published in the Federal Register a
revised proposed critical habitat by reissuing the August 19, 2004,
proposed critical habitat, which totaled approximately 4,649 ac (1,881
ha) (69 FR 51417). That acreage has been recalculated, with use of
current Geographic Information Systems technology, as 4,657 ac (1,885
ha). We are now proposing to revise this designation to a total of
approximately 5,182 ac (2,098 ha) consisting of seven critical habitat
units. This is an increase of approximately 525 ac (212 ha) from the
October 21, 2009 revised proposed designation. The additional areas
include revisions to Unit 4 (Coles Levee) and the addition of Unit 6
(Semitropic Ecological Reserve) and Unit 7 (Lemoore Wetland) (see Table
1). We have also updated the unit descriptions and revised the criteria
and methods sections to accommodate newer geographical information
systems technologies. Finally, as the result of our new system for
designating critical habitat (77 FR 25611; May 1, 2012), our rule
portion now consists of maps only, without accompanying GIS
coordinates. However, the coordinates for these maps are available on
the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-
2009-0062, at http://www.fws.gov/sacramento/, or at the Sacramento Fish
and Wildlife Office, 2800 Cottage Way, Sacramento, CA 95825.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--is necessary to ensure the conservation of the species. At
the time of listing, we were aware of four locations (Kern Lake, Kern
National Wildlife Refuge, Coles Levee, and the Kern Fan Water Recharge
Area) where the Buena Vista Lake shrew was extant, but we also noted
that additional remnant patches of wetland and riparian habitat within
the Tulare Basin had not been surveyed and might support the shrew
(Service 2002, p. 10103). We considered the geographical area occupied
by the species to include areas of remnant wetland and riparian habitat
within the Tulare Basin.
As noted previously, shrews were also known from Atwell Island,
Tulare County (Williams and Harpster 2001, pp. 13, 14), but had not
been identified as Buena Vista Lake shrews. In January 2003, a fifth
site, Goose Lake, was surveyed and Buena Vista Lake shrews were also
identified at this location (ESRP 2004, p. 8). The Goose Lake Unit was
included in the original proposal to designate critical habitat
(Service 2004). The Lemoore and Semitropic sites were first surveyed
for the Buena Vista Lake shrew in April 2005, and Buena Vista Lake
shrews were captured at these sites (ESRP 2005, p. 11, 12).
We propose to designate critical habitat in areas within the
geographical area occupied by the species at the time of listing. We
include as occupied those areas that meet the following two conditions:
(1) They contain the physical or biological features that are essential
to the conservation of the species, and (2) they were identified as
occupied in the original listing documents or determined to be occupied
after 2002. Our reasoning for the inclusion of these additional areas
(post-2002) is that, based on the biology of the Buena Vista Lake shrew
and the conditions at these units, we have concluded that these areas
were occupied at the time of original listing, but the areas had not
yet been surveyed at that time. All proposed critical habitat units
contain natural habitat containing the physical and biological features
essential to the conservation of the species.
[[Page 40715]]
As noted above, the Buena Vista Lake shrew is a very small mammal,
with an annual life cycle. Shrews, in general, have small home ranges
in which they spend most of their lives, and generally exhibit a high
degree of site-attachment, although males and juveniles of some species
have been documented to disperse during the breeding season, with
movement within a season varying between species from under 10 feet (a
few meters) to, in one case, documented movement of 0.5 mi (800 meters)
within a year (Churchfield 1990, pp. 55, 56). No proposed critical
habitat unit is in close proximity to other units, precluding the
potential for movement of shrews from other known occupied sites over
the relatively short timeframe of 1 to 2 years. All proposed units
retain wetland or riparian features and are within the Tulare Basin,
the described historical range of the Buena Vista Lake shrew.
We also consider these proposed critical habitat units to be
essential for the conservation of the species because they are areas
located throughout the historical range of the species, are occupied,
and are needed to maintain the existing distribution of the shrew. All
areas are currently occupied and we consider these areas to be
sufficient for the conservation of the species. Our generalized
criteria for long-term conservation of the Buena Vista Lake shrew
specify that three or more disjunct occupied sites, which collectively
provide at least 4,940 ac (2,000 ha) of occupied habitat for the shrew,
be secured and protected from incompatible uses (Service 1998, p. 192).
We have identified the proposed lands based on the presence of the
physical or biological features described above, coupled with occupancy
by the shrew. Protecting a variety of habitats and conditions that
contain the physical or biological features will allow for the
conservation of the species because it will increase the ability of the
shrew to survive stochastic environmental events (fire, drought, or
flood), or demographic (low recruitment), or genetic (inbreeding)
problems. Suitable habitat within the historical range is limited,
although conservation of substantial areas of remaining habitat in the
Semitropic area is expected to benefit the shrew. Remaining habitats
are vulnerable to both anthropogenic and natural threats. 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.
In our development of this revised proposed critical habitat for
the shrew, we used the following methods. 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), the 5-year status review for the shrew (Buena
Vista Lake Ornate Shrew 5-Year Review: Summary and Evaluation, Service
2011), research and survey observations published in peer-reviewed
articles (Grinnell 1932, 1933; Hall 1981; Owen and Hoffman 1983;
Williams and Kilburn 1984; Williams 1986; Maldonado et al. 2001; and
Maldonado et al. 2004), 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; ESRP 2005; and
Maldonado 2006), 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 previous comment periods.
The five critical habitat units that we originally proposed were
delineated by creating rough areas for each unit by screen-digitizing
polygons (map units) using ArcView (Environmental Systems Research
Institute, Inc. (ESRI)), a computer Geographic Information System (GIS)
program. The polygons were created by overlaying current and historical
species location points (California Natural Diversity Database (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 Buena Vista Lake 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, on site visits, and on visual habitat
evaluation in areas known to have shrews, and in areas within the
historical ranges that had potential to contain shrew habitat.
For the five units, the 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), 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. We refined boundaries using
satellite imagery, soil type coverages, vegetation land cover data, and
agricultural or 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.
For the revision of the Coles Levee Unit, and the addition of the
Lemoore and Semitropic Units, we utilized shrew occurrence data
collected by ESRP (Maldonado 2006, pp. 24-27; Phillips 2011), projected
data within Arcview (ESRI), and delineated unit polygons. The polygons
were created by overlaying species location points (Phillips 2011) onto
NAIP imagery (current satellite aerial photography) (National
Agriculture Imagery Program 2010) to identify wetland and vegetation
features, such as vegetated canals, canals with cleared vegetation,
vegetated sloughs, agricultural fields, and general changes in
vegetation and land type. We also projected the original proposed units
onto NAIP imagery and again utilized additional GIS data derived from a
variety of Federal, State, and local agencies.
When determining revised proposed critical habitat boundaries, we
made
[[Page 40716]]
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the Buena Vista Lake
shrew. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
In summary, we are proposing to designate seven units as critical
habitat. We have determined that the units were occupied at the time of
listing, and that they are currently occupied (see Table 2). The units
provide the physical or biological features needed to support the Buena
Vista Lake shrew. The seven units contain the physical or biological
features essential to the conservation of the species. We currently are
proposing to include seven of eight known occupied sites, totaling
5,182 ac (2,098 ha), as critical habitat. We have determined that
unoccupied areas are not currently essential to the conservation of the
species.
Table 2--Occupancy of Buena Vista Lake Shrew by Revised Proposed
Critical Habitat Units
------------------------------------------------------------------------
Occupied at time Currently
Unit of listing? occupied?
------------------------------------------------------------------------
1. Kern National Wildlife Refuge yes............... yes.
Unit.
2. Goose Lake Unit.............. yes............... yes.
3. Kern Fan Water Recharge Unit. yes............... yes.
4. Coles Levee Unit............. yes............... yes.
5. Kern Lake Unit............... yes............... yes.
6. Semitropic Ecological Reserve yes............... yes.
Unit.
7. Lemoore Wetland Unit......... yes............... yes.
------------------------------------------------------------------------
The approximate area of each revised proposed critical habitat unit
is shown in Table 3.
Table 3--Revised Proposed Critical Habitat Units for the Buena Vista Lake Shrew
[Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Federal State Local Private
Critical habitat unit -----------------------------------------------------------------------------------------
ac ha ac ha ac ha ac ha ac ha
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1, Kern National Wildlife Refuge:
Subunit 1A................................................ 274 111 274 111 ....... ....... ....... ....... ....... .......
Subunit 1B................................................ 66 27 66 27 ....... ....... ....... ....... ....... .......
Subunit 1C................................................ 47 19 47 19 ....... ....... ....... ....... ....... .......
Unit 2, Goose Lake............................................ 1,279 518 ....... ....... ....... ....... ....... ....... 1,279 518
Unit 3, Kern Fan Water Recharge............................... 2,687 1,088 ....... ....... ....... ....... 2,687 1,088 ....... .......
Unit 4, Coles Levee........................................... 270 109 ....... ....... 46 19 ....... ....... 223 90
Unit 5, Kern Lake Unit........................................ 90 36 ....... ....... ....... ....... ....... ....... 90 36
Unit 6, Semitropic Ecological Reserve Unit.................... 372 151 ....... ....... 345 140 ....... ....... 27 11
Unit 7, Lemoore Wetland Unit.................................. 97 39 ....... ....... ....... ....... ....... ....... 97 39
-----------------------------------------------------------------------------------------
Total..................................................... 5,182 2,098 387 157 391 159 ....... ....... 1,716 694
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Buena Vista Lake shrew,
below.
Unit 1: Kern National Wildlife Refuge (Kern NWR) Unit
The Kern NWR Unit is completely comprised of Federal lands, and is
located within the Kern NWR in northwestern Kern County. The Kern NWR
Critical Habitat Unit consists of three subunits totaling approximately
387 ac (157 ha): Subunit 1A contains 274 ac (111 ha); subunit 1B
contains 66 ac (27 ha); and subunit 1C contains 47 ac (19 ha). The unit
was occupied at the time of listing, is currently occupied, and
contains the physical and biological features that are essential to the
conservation of the shrew. Shrew habitat in Unit 1 receives water from
the California Aqueduct. One of the areas where Buena Vista Lake shrews
are present has standing water from September 1 through approximately
April 15. After that time, the trees in the area may receive irrigation
water so the area may possibly remain damp through May, but the area is
dry for approximately 3 months during the summer. Another area of known
Buena Vista Lake shrew occurrences has standing water from the second
week of August through the winter and into early July, and is only dry
for a short time during the summer. Buena Vista Lake shrew captures
have occurred in remnant riparian and slough habitat at the refuge
(Service 2005b, pp. 48, 49).
This unit is essential to the conservation of the species because
it is occupied, and the subunits include riparian habitat that contain
the primary constituent elements. Populus fremontii trees (Fremont
cottonwood), and Salix spp. (willow) are the dominant woody plants in
riparian areas. Additional plants include Scirpus spp. (bulrushes),
Typha spp. (cattails), Juncus spp. (rushes), Heleocharis palustris
(spike rush), and Sagittaria longiloba (arrowhead). Other plant
communities on the refuge that support shrews are valley iodine bush
scrub, dominated by Allenrolfea occidentalis (iodine bush), Suaeda spp.
(suaeda or seepweed), Frankenia salina (alkali heath), and salt-cedar
scrub, which is dominated by Tamarix spp. (salt cedar). Both of these
communities occupy sites with moist, alkaline soils.
The Kern NWR completed a Comprehensive Conservation Plan (CCP) for
the Kern and Pixley NWRs in February 2005 (Service 2005b, pp. 1-103).
The CCP provides objectives for maintenance and restoration of Buena
Vista Lake shrew habitat on the Kern NWR. Objectives listed in the CCP
include completing baseline censuses and monitoring for the shrew,
[[Page 40717]]
enhancement and maintenance of the 215-ac (87-ha) riparian habitat,
through regular watering, to provide habitat for riparian species,
including the shrew, and additional restoration of 15 ac (6 ha) of
riparian habitat along canals in a portion of the refuge to benefit the
shrew and riparian bird species (Service 2005b, pp. 84, 85). The
physical and biological features essential to the conservation of the
species in this unit may require special management considerations or
protection to address threats from nonnative species such as salt
cedar, and from changes in hydrology due to off-site water management.
Unit 2: Goose Lake Unit
The Goose Lake Unit consists of 1,279 ac (518 ha) of private land,
and is located about 10 mi (16 km) south of Kern NWR in northwestern
Kern County, in the historical lake bed of Goose Lake. We consider that
the unit was occupied at the time of listing and assume that it was not
identified as occupied at that time because it had not yet been
surveyed for small mammals. In January 2003, when the area was first
surveyed for small mammals, approximately 6.5 ac (2.6 ha) of potential
shrew habitat located along the Goose Lake sloughs were surveyed (ESRP
2004, p. 8), resulting in the capture of five Buena Vista Lake shrews.
The maximum distance between two shrew captures was 1.6 mi (2.6 km),
suggesting that Buena Vista Lake shrews are widely distributed on the
site. The unit has been determined to have the necessary PCEs present
and therefore meets the definition of critical habitat under section
3(5)(A)(i) of the Act. The unit was included in the 2004 proposed
critical habitat designation. Although we continue to presume that the
unit meets the definition of critical habitat under section 3(5)(A)(i)
of the Act, we are also proposing to designate the unit under section
3(5)(A)(ii) of the Act. Even if the unit was not occupied at the time
of listing, it is essential for the conservation of the shrew because
it is considered to be currently occupied, is within the subspecies'
range, and includes riparian habitat containing the PCEs in sloughs and
wetlands and meets our criteria for designation as critical habitat.
In the past, Buena Vista Lake shrew habitat in this unit
experienced widespread losses due to the diversion of water for
agricultural purposes. However, small, degraded examples of freshwater
marsh and riparian communities still exist in the area of Goose Lake
and Jerry Slough (a portion of historical Goose Slough, an overflow
channel of the Kern River), allowing shrews to persist in the area.
Dominant vegetation along the slough channels includes Frankenia spp.
(frankenia), Allenrolfea occidentalis (iodine bush), and Suaeda spp.
(seepweed). The northern portion of the unit consists of scattered
mature Allenrolfea occidentalis shrubs in an area that has relatively
moist soils. The southern portion of the unit is characterized by a
dense mat of Distichilis spp. (saltgrass) and clumps of Allenrolfea and
Suaeda spp. A portion of the unit currently exhibits inundation and
saturation during the winter months. Dominant vegetation in these areas
has included cattails, bulrushes, Juncus spp., and saltgrass.
The Goose Lake area is managed by the Semitropic Water Storage
District (WSD) as a ground-water recharge basin. Water from the
California Aqueduct is transferred to the Goose Lake area in years of
abundant water, where it is allowed to recharge the aquifer that is
used for irrigated agriculture. At the time that the unit was
originally proposed, the landowners, in cooperation with Ducks
Unlimited, Inc. and Semitropic WSD, proposed to create and restore
habitat for waterfowl in the unit area; wetland restoration that we
expected to substantially increase the quantity and quality of Buena
Vista Lake shrew habitat on the site. Restoration activities were
completed in the last 5 years. The physical and biological features
essential to the conservation of the species in this unit may require
special management considerations or protection to address threats from
nonnative species such as salt cedar, from recreational use, and from
changes in hydrology due to water management and maintenance of water
conveyance facilities. There are currently no conservation agreements
covering this land.
Unit 3: Kern Fan Water Recharge Unit
The Kern Fan Water Recharge Area Unit consists of 2,687 ac (1,088
ha) of private land, which is within the 2,800-ac, (1,133-ha) Kern Fan
Water Recharge Area, and is owned by the City of Bakersfield. The unit
is located along the banks of the Kern River, west of Bakersfield, and
is adjacent to the Kern Water Bank, a 19,000-ac (7,689-ha) area owned
by the Kern Water Bank Authority. Portions of the recharge area are
flooded sporadically, forming fragmented wetland communities throughout
the area.
This unit was occupied at the time of listing, is currently
occupied by the Buena Vista Lake shrew, and includes the physical and
biological features that are essential to the conservation of the Buena
Vista Lake shrew. Remnant riparian areas are found throughout the area,
but are mainly located in narrow strips near the main channel of the
Kern River and are dominated by Fremont cottonwood, Salix spp. (willow
species), Urtica dioica (stinging nettle), Leymus triticoides (creeping
wild rye), Baccharis salicifolia (mulefat), and Asclepias fascicularis
(narrow-leaved milkweed). The plant communities of the Kern Fan Water
Recharge Area also include a mixture of Valley saltbush scrub and Great
Valley mesquite shrub. The Valley saltbush scrub is characterized by
the presence of Atriplex polycarpa (Valley saltbush), alkali heath,
Isocoma acradenia (goldenbush), and Hemizonia pungens (common
spikeweed). The soils in this area are sandy to loamy with no surface
alkalinity. This community seems to intergrade with the Great Valley
mesquite scrub plant community. This is an open scrubland dominated by
Prosopis juliflora (mesquite), Valley saltbush, and goldenbush. The
soils also are sandy loams of alluvial origin (soil types deposited by
rivers).
Willow species, stinging nettles, and a thick mat of creeping wild
rye dominate the location of the captured Buena Vista Lake shrews.
Other plant species found in locations where the Buena Vista Lake
shrews were trapped include Fremont cottonwood and salt grass. At the
time of capture, this site had no standing water within 328 feet (100
meters) of the location where the Buena Vista Lake shrews were caught.
The physical and biological features essential to the conservation
of the species in this unit may require special management
considerations or protection to address threats from nonnative species
such as salt cedar, and from changes in hydrology due to off-site water
management, especially in dry years. The unit is adjacent to, but not
included within, the Kern Water Bank Habitat Conservation Plan/Natural
Community Conservation Plan (Kern Water Bank HCP/NCCP) permit area
(Kern Water Bank Authority 1997, p. 7).
Over the past seven years, the City of Bakersfield has worked with
the Service to make management changes to benefit the Buena Vista Lake
shrew, and has completed annual monitoring to assess habitat conditions
for the Buena Vista Lake shrew. The City of Bakersfield is working with
the Service to improve assurances for protection of the Buena Vista
Lake shrew in this unit. The Service is considering whether to exclude
this unit from critical habitat.
[[Page 40718]]
Unit 4: Coles Levee Unit
The Coles Levee Unit is approximately 270 ac (109 ha) in Kern
County, of which 223 ac (90 ha) is owned by Aera Energy. An additional
46 ac (19 ha) are State lands within the Tule Elk Reserve. The unit is
located northeast of Tupman Road near the town of Tupman, is directly
northeast of the California Aqueduct, and is largely within the Coles
Levee Ecosystem Preserve, which was established as a mitigation bank in
1992, in an agreement between Atlantic Richfield Company (ARCO) and
California Department of Fish and Game. The preserve serves as a
mitigation bank to compensate for the loss of habitat for listed upland
species; the Buena Vista Lake shrew is not a covered species. The
preserve is mostly highly degraded upland saltbush and mesquite scrub,
and is interlaced with slough channels for the historical Kern River
fan where the river entered Buena Vista Lake from the northeast. Most
slough channels are dry except in times of heavy flooding, every
several years. The preserve also contains approximately 2 mi (3.2 km)
of much-degraded riparian communities along the Kern River.
A manmade pond, which was constructed in the late 1990s or early
2000s, is located within the unit. Water from the adjacent oil fields
is constantly pumped into the basin. Vegetation includes bulrushes,
stinging nettle, mulefat, salt grass, Atriplex lentiformis (quailbush),
and Conium maculatum (poison hemlock). There are a few willows and
Fremont cottonwoods scattered throughout the area. This site runs
parallel to the Kern River bed.
In the 2009 proposed rule (74 FR 53999. October 21, 2009), we
reproposed 214 ac (87 ha) of critical habitat as the Coles Levee Unit.
In this unit, Buena Vista Lake shrews were originally captured along a
nature trail that was adjacent to a slough, and were close to the
water's edge where there was abundant ground cover but little or no
canopy cover. The unit is delineated in a general southeast to
northwest direction, along both sides of the Kern River Flood Channel
and Outlet Canal, which runs through the Preserve. During a
construction project in the summer of 2011, two Buena Vista Lake shrews
were found just north of the previous northerly boundary of the unit.
We have therefore extended the unit boundary along both sides of the
canal to encompass the contiguous riparian habitat to the point where
water is no longer retained and riparian vegetation essentially stops,
thereby including riparian habitat along the Outlet Canal within the
Tule Elk Reserve.
This unit is essential to the conservation of the species because
it is occupied and includes willow-cottonwood riparian habitat that
contains the PCEs. The physical and biological features essential to
the conservation of the species in this unit may require special
management considerations or protection to address threats from
construction activities associated with projects to tie-in water
conveyance facilities to the California Aqueduct and oil and gas-
related activites, including pipeline projects. The area adjacent to
Coles Levee is the site of active gas and oil production, and the Coles
Levee Unit is within an area that was recently proposed for oil and gas
exploration.
An HCP was issued for the Coles Levee Ecological Preserve Area.
However, the HCP permit expired when ARCO sold the property to the
current owner and the permit was not transferred.
Unit 5: Kern Lake Unit
The Kern Lake Unit is approximately 90 ac (36 ha) in size, and is
located at the edge of the historical Kern Lake, approximately 16 miles
south of Bakersfield in southwestern Kern County. This unit lies
between Hwy 99 and Interstate 5, south of Herring Road near the New Rim
Ditch. The unit was occupied at the time of listing, is considered
currently occupied, and contains the physical and biological features
that are essential to the conservation of the Buena Vista Lake shrew.
Since the advent of reclamation and development, the surrounding lands
have seen intensive cattle and sheep ranching and, more recently,
cotton and alfalfa farming. Currently, Kern Lake itself is generally a
dry lake bed; however, the unit contains wet alkali meadows and a
spring-fed pond known as ``Gator Pond,'' which is located near the
shoreline of the lake bed. A portion of the runoff from the surrounding
hills travels through underground aquifers, surfacing as artesian
springs at the pond. The heavy clay soils support a distinctive
assemblage of native species, providing an island of native vegetation
situated among agricultural lands. The unit contains three ecologically
significant natural communities: Freshwater marsh, alkali meadow, and
iodine bush scrub.
The moisture regime for shrew habitat in this unit is maintained by
agricultural runoff from the New Rim ditch. This unit is essential to
the conservation of the species because it is currently occupied and
includes habitat that contains the PCEs identified for the shrew. 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 Buena Vista Lake shrew.
The physical and biological features essential to the conservation
of the species in this unit may require special management
considerations or protection to address threats from reductions in
water delivery, from effects of surrounding agricultural use, and from
industrial and commercial development. The proposed Maricopa Sun solar
development is within a 2-mile radius of the unit. This area does not
have a conservation easement and is managed by the landowners. We are
unaware of any plans to develop this site; however, it is within a
matrix of lands managed for agricultural production.
Unit 6: Semitropic Ecological Reserve Unit
Unit 6 is located about 7 mi (11 km) south of Kern NWR and 7 mi (11
km) north of the Goose Lake unit along the Main Drain Canal. It is
bordered on the south by State Route 46, approximately 2 mi (3 km) east
of the intersection with Interstate 5, and is 372 ac (151 ha) in size.
The State of California, Department of Fish and Game, holds 345 ac (140
ha) under fee title, and manages the area as part of the Semitropic
Ecological Reserve. An additional 27 ac (11 ha) of the unit are private
land.
We consider that the unit was occupied at the time of listing and
assume that it was not identified as occupied at that time because it
had not yet been surveyed for small mammals (see Criteria Used To
Identify Critical Habitat). Buena Vista Lake shrews were identified in
the unit on April 27, 2005, when it was first surveyed for small
mammals (ESRP 2005, pp. 10-13). At that time, Buena Vista Lake shrews
were found in the southwestern portion of the unit, next to the Main
Drain Canal. The unit has been determined to have the necessary PCEs
present and therefore meets the definition of critical habitat under
section 3(5)(A)(i) of the Act. Although we presume that the unit meets
the definition of critical habitat under section 3(5)(A)(i) of the Act,
we are also proposing to designate the unit under section 3(5)(A)(ii)
of the Act. Even if the unit was not occupied at the time of listing,
it is essential for the conservation of the Buena Vista Lake shrew due
to its location approximately midway between Units 1 and 2, and
location near the southern edge of remnant natural wetland and riparian
[[Page 40719]]
habitat. The unit is also considered essential for the conservation of
the shrew because it is considered to be currently occupied, and
contains a matrix of riparian and wetland habitat, including riparian
habitat both along the canal, and within and adjacent to oxbow and
slough features.
The major vegetative associations at the site are valley saltbush
scrub and valley sink scrub. Valley saltbush scrub is found within the
relatively well-drained soils at slightly higher elevations, and the
valley sink scrub is found in the heavier clay soils. Dominant
vegetation at the site includes Bromus diandrus (ripgut brome), Bromus
madritensis ssp. rubens (red brome), Carex spp. (sedges), Juncus spp.
(rushes), Polygonum spp. (knotweed), Polypogon monspeliensis
(rabbitfoot grass), Rumex crispus (curly dock), and Vulpia myuros
(foxtail fescue). There is a light overstory of Populus ssp.
(cottonwoods) at the most successful Buena Vista Lake shrew capture
site.
The physical and biological features essential to the conservation
of the species in this unit may require special management
considerations or protection to address threats from ongoing oil and
gas exploration and development, ongoing conversion of natural lands
for agricultural development, changes in water management, weed control
activities, including use of herbicides, and the occurrence of range
trespass in an open range area. Semitropic reserve lands are not fenced
and are subject to occasional range trespass by sheep and cattle (CDFG
2012). State lands in the unit were acquired under the provisions of
the Metro Bakersfield Habitat Conservation Plan (HCP), and are managed
for listed upland species. Location of the Main Drain Canal in the
unit, and the presence of wetland features are expected to benefit the
shrew, although the shrew is not a covered species under the HCP. The
State does not yet have a management plan for the Semitropic Ecological
Reserve.
Unit 7: Lemoore Wetland Reserve Unit
The Lemoore Wetland Reserve Unit is located east of the Lemoore
Naval Air Station and is 4 mi (6 km) west of the City of Lemoore in
Kings County. The unit is bounded along the southern border by State
Route 198, and on the north and west sides by a bare water-conveyance
canal. It is 97 ac (39 ha) in size. The Unit is managed by the Natural
Resources Conservation Service for waterfowl enhancement.
We consider that the unit was occupied at the time of listing and
that it was not identified as occupied at that time because it had not
yet been surveyed for small mammals (see Criteria Used To Identify
Critical Habitat). Buena Vista Lake shrews were identified in the unit
April 20-22, 2005, when it was first surveyed for small mammals (ESRP
2005, pp. 10-13). The unit has been determined to have the necessary
PCEs present and, therefore, meets the definition of critical habitat
under section 3(5)(A)(i) of the Act. Although we presume that the unit
meets the definition of critical habitat under section 3(5)(A)(i) of
the Act, we are also proposing to designate the unit under section
3(5)(A)(ii) of the Act. The unit is essential for the conservation of
the shrew due to its location approximately at the northernmost extent
of the subspecies' range, due to occupancy, and due to remnant natural
wetland and riparian habitat that contains the PCEs.
The site was created to provide a place for city storm water to
percolate and drop contaminants to shield the Kings River during years
of flood runoff. Portions of the area are flooded periodically, forming
fragmented wetland communities throughout the area.
The plant communities of the Lemoore Wetland Reserve Unit include a
mixture of vegetation communities: nonnative grassland, vernal marsh,
and elements of valley sink scrub. Brassica nigra (black mustard),
Bromus madritensis ssp. rubens (red brome), B. hordeaceus (soft chess),
Distichlis spicata (saltgrass), Frankenia salina (alkali heath), Juncus
spp. (rushes), Lactuca serriola (prickly lettuce), Polypogon
monspeliensis (rabbitfoot grass), Populus ssp. (cottonwood), curly dock
(Rumex crispus), willow (Salix ssp), bulrush (Scirpus ssp.), common
sowthistle (Sonchus oleraceus), cattails (Typha ssp.), foxtail fescue
(Vulpia myuros) and cocklebur (Xanthium strumarium) are common
throughout the site. This unit is essential to the conservation of the
species because it is currently occupied and contains the PCEs
identified for the shrew. It is the northernmost occurrence of the
shrew and, therefore, would be considered essential to protecting the
outermost portions of its known range.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act, or result in the destruction or adverse modification of
any critical habitat proposed to be designated for such species.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
[[Page 40720]]
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we may provide reasonable
and prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying 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 we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the Buena Vista Lake shrew.
As discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Buena Vista Lake shrew. These activities 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 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.
(5) Actions that would involve funding of activities by the U.S.
Environmental Protection Agency, Department of Energy, Federal
Emergency Management Agency, 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 or aquatic habitat for Buena Vista Lake shrews.
(6) 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.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographic areas owned
or controlled by the Department of Defense, or designated for its use,
that are subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines
[[Page 40721]]
in writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation.''
There are no Department of Defense lands within the revised
proposed critical habitat designation and as a result, we are not
exempting any lands under section 4(a)(3)(B) of the Act.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise his discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
In the case of the Buena Vista Lake shrew, the benefits of critical
habitat include public awareness of the shrew's presence and the
importance of habitat protection, and in cases where a Federal nexus
exists, increased habitat protection for the shrew due to the
protection from adverse modification or destruction of critical
habitat. Since the shrew was first listed, we have consulted on
projects on privately owned land that involved waterways, oil and gas
development and exploration, and operations and maintenance of
electricity transmission lines.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, we consider a variety of
factors, including but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical or
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we will evaluate
whether certain lands in the revised proposed critical habitat are
appropriate for exclusion from the final designation pursuant to
section 4(b)(2) of the Act. If the analysis indicates that the benefits
of excluding lands from the final designation outweigh the benefits of
designating those lands as critical habitat, then the Secretary may
exercise his discretion to exclude the lands from the final
designation.
We have not proposed to exclude any areas from critical habitat,
but we are considering whether to exclude the Kern Fan Water Recharge
Unit (Unit 3) (2,687 ac (1,088 ha)), from final critical habitat
designation. The Kern Fan Water Recharge Unit is owned by the City of
Bakersfield and is managed as a groundwater recharge zone. The unit is
adjacent to, but is not included in the Kern Water Bank Habitat
Conservation Plan and Natural Community Conservation Plan permit area.
The City of Bakersfield has managed the unit under a Service-approved
management plan that was designed to benefit the shrew. The Service is
currently working with the City to enhance the management plan to
increase monitoring and funding assurances for the shrew. We are
continuing to coordinate with the City, and will examine conservation
actions for the shrew, including current management planning documents,
in our consideration of the Kern Fan Water Recharge Unit for exclusion
from the final designation of critical habitat for the shrew, under
section 4(b)(2) of the Act. We specifically solicit comments on the
benefits of inclusion or benefits of exclusion of this area as critical
habitat.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the revised proposed critical habitat designation and
related factors.
On April 28, 2011, we released a draft economic analysis (DEA)
(Industrial Economics Incorporated (IEc) 2011) analyzing the impacts of
designating critical habitat, as proposed in the October 21, 2009,
proposed rule (74 FR 53999). In the DEA, the analysts concluded that
incremental impacts resulting from the critical habitat designation for
the previously proposed units are limited to additional administrative
costs of section 7 consultation, and noted two primary sources of
uncertainty associated with the incremental effects analysis: (1) The
actual rate of future consultation is unknown, and (2) future land use
on private lands is uncertain. The analysis did not identify any future
projects on private lands beyond those covered by existing baseline
projections. Section 7 consultation on the Buena Vista Lake shrew has
not occurred on private lands that are not covered by conservation
plans (Units 2 and 5). As a result, the analysis did not forecast
incremental impacts due to such measures.
For the five units, the DEA estimated total potential incremental
economic impacts in areas proposed as revised critical habitat over the
next 20 years
[[Page 40722]]
(2011 to 2030) to be approximately $133,000 ($11,700 annualized) in
present value terms applying a 7 percent discount rate (IEc 2011, p. 4-
2). Administrative costs associated with section 7 consultations on a
variety of activities (including pipeline construction and removal,
delivery of water supplies under the Central Valley Project, pesticide
applications for invasive species, and restoration activities) in
proposed critical habitat Units 2, 3, and 4 were expected to total
approximately $53,900 over the next 20 years and made up the largest
portion of post-designation incremental impacts, accounting for
approximately 39 percent of the forecast incremental impacts (IEc 2011,
pp. 4-11--4-12). Impacts were associated with section 7 consultations
on Pacific Gas and Electric (PG&E) operations and maintenance
activities, internal consultations at the Kern National Wildlife
Refuge, section 7 consultations with the U.S. Army Corps of Engineers
due to Clean Water Act (33 U.S.C. 1251 et seq.) permitting, and the
incremental impact of consultations and management plan review for the
City of Bakersfield's Kern Fan Recharge Area.
The incremental costs were broken down by location of expected
incremental costs within the five proposed critical habitat units, as
follows: Unit 3, Kern Fan ($84,000 (present-value impacts)), Unit 1,
Kern National Wildlife Refuge ($20,800), Unit 2, Goose Lake Unit
($16,500), Unit 4, Coles Levee Unit ($6,340), and Unit 5, Kern Lake
Unit (no identified costs). The consultations forecast for proposed
critical habitat Units 2 and 5 were limited to those associated with
occasional permitted pipeline, restoration, or water projects. We are
currently in the process of analyzing the additional areas we are
currently proposing as critical habitat for potential economic impacts
and we will issue a revised draft economic analysis once our review has
been completed. As a result of the revisions, the potential impacts
identified above may change.
We will announce the availability of the revised draft economic
analysis as soon as it is completed, at which time we will seek public
review and comment. At that time, copies of the draft economic analysis
will be available for downloading from the Internet at http://www.regulations.gov, or by contacting the Sacramento Fish and Wildlife
Office directly (see FOR FURTHER INFORMATION CONTACT section). During
the development of a final designation, we will consider economic
impacts, public comments, and other new information, and areas may be
excluded from the final critical habitat designation under section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this revised
proposal, we have determined that the lands within the revised proposed
designation of critical habitat for the Buena Vista Lake shrew are not
owned or managed by the Department of Defense, and, therefore, we
anticipate no impact on national security. Consequently, the Secretary
does not propose to exercise his discretion to exclude any areas from
the final designation based on impacts on national security.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We have invited these peer reviewers
to comment during this public comment period on our specific
assumptions and conclusions in this proposed designation of critical
habitat.
We will consider all comments and information received during this
comment period on this revised proposed rule during our preparation of
a final determination. Accordingly, the final decision may differ from
this revised proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in the FOR
FURTHER INFORMATION CONTACT section. We will schedule public hearings
on this proposal, if any are requested, and announce the dates, times,
and places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.
Required Determinations--Amended
In our proposed rule published in the Federal Register on October
21, 2009 (74 FR 53999), 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. In the April 28, 2011, document making available
the DEA (76 FR 23781) we made use of the DEA data to make these
determinations. We affirmed the information in our proposed rule
concerning Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951).
However, based on the DEA's data, we amended our required
determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601
et seq.) and E.O. 13211 (Energy Supply, Distribution, and Use). A
revised economic analysis will be completed to consider economic
impacts due to the revisions to proposed critical habitat that are
included in this document.
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) will review all significant
rules. The OIRA has determined that this rule is not significant. E.O.
13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
[[Page 40723]]
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
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 such businesses as 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 forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider 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.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are only required to evaluate the potential
incremental impacts of rulemaking on those entities directly regulated
by the rulemaking itself, and not the potential impacts to indirectly
affected entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried by the Agency is not
likely to adversely modify critical habitat. Therefore, only Federal
action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Under these circumstances, it is our
position that only Federal action agencies will be directly regulated
by this designation. Therefore, because Federal agencies are not small
entities, the Service may certify that the proposed critical habitat
rule will not have a significant economic impact on a substantial
number of small entities.
We acknowledge, however, that in some cases, third-party proponents
of the action subject to permitting or funding may participate in a
section 7 consultation, and thus may be indirectly affected. We believe
it is good policy to assess these impacts if we have sufficient data
before us to complete the necessary analysis, whether or not this
analysis is strictly required by the RFA. While this regulation does
not directly regulate these entities, in our revision to the draft
economic analysis, we will conduct a brief evaluation of the potential
number of third parties participating in consultations on an annual
basis in order to ensure a more complete examination of the incremental
effects of this proposed rule in the context of the RFA. In the April
25, 2011, Federal Register document (76 FR 23781) announcing the
availability of the DEA, we discussed the incremental impacts that were
identified in the DEA, and we include this information above under the
section, ``Exclusions Based on Economic Impacts.'' The previous
economic analysis did not review the additional areas proposed in this
rule; therefore, we defer our evaluation of the potential indirect
effects to non-Federal parties until completion of the revised draft
economic analysis we will prepare under section 4(b)(2) of the Act and
Executive Order 12866.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies which are not by definition small business entities. And as
such, we certify that, if promulgated, this designation of critical
habitat would not have a significant economic impact on a substantial
number of small business entities. Therefore, an initial regulatory
flexibility analysis is not required. However, though not necessarily
required by the RFA, in our revision to the draft economic analysis for
this current proposal, we will consider and evaluate the potential
effects to third parties that may be involved with consultations with
Federal action agencies related to this action. Upon completion of the
revised draft economic analysis, we will announce availability of the
draft economic analysis of the proposed designation in the Federal
Register and reopen the public comment period for the revised proposed
designation.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. We do not expect the designation of this revised
proposed critical habitat to significantly affect energy supplies,
distribution, or use. Appendix A.2, of the 2011 DEA, provides the
finding that although PG&E and Southern California Gas Company operate
facilities within the proposed critical habitat designation, no
incremental changes in facility operation are forecast and, therefore,
the 2011 DEA included the determination that no changes in energy use,
production, or distribution were anticipated (IEc 2011, p. A-6).
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required. However, we will further
evaluate this issue as we conduct our revised economic analysis, and
review and revise this assessment as warranted.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal
[[Page 40724]]
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; Aid to Families
with Dependent Children 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 that receive
Federal funding, assistance, or permits, or that 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 onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because none of the third-party entities
identified in the 2011 DEA met the SBA's definition of a small
government or business. Our finding is based in part on the previous
economic analysis conducted for the previous designation of critical
habitat and extrapolated to this designation, and partly on where the
additional areas proposed for critical habitat within this designation
are located. Therefore, a Small Government Agency Plan is not required.
However, we will further evaluate this issue as we conduct our revised
economic analysis, and review and revise this assessment if
appropriate.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), this rule is not anticipated to have significant takings
implications. As discussed above, the designation of critical habitat
affects only Federal actions. 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 to go forward. Due to current
public knowledge of the species protections and the prohibition against
take of the species both within and outside of the proposed areas we do
not anticipate that property values will be significantly affected by
the critical habitat designation. However, we have not yet completed
the economic analysis for this revised proposed rule. Once the revised
economic analysis is available, we will review and revise this
preliminary assessment as warranted, and prepare a Takings Implication
Assessment.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism summary impact statement is not required. In keeping with
Department of the Interior and Department of Commerce policy, we
requested information from, and coordinated development of, the October
21, 2009, proposed critical habitat designation (74 FR 53999) with
appropriate State resource agencies in California. The designation of
critical habitat in areas currently occupied by the Buena Vista Lake
shrew is expected to impose nominal additional regulatory restrictions
to those currently in place and, therefore, is expected to have little
incremental impact on State and local governments and their activities.
The designation may have some benefit to these governments because the
areas that contain the physical or biological features essential to the
conservation of the species are more clearly defined, and the elements
of the features necessary to the conservation of the species are
specifically identified. This information does not alter where and what
federally sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
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.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
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 Act. This
proposed rule uses standard property descriptions and identifies the
elements of physical or biological features essential to the
conservation of the Buena Vista Lake shrew within the designated areas
to assist the public in understanding the habitat needs of the species.
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 of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or
[[Page 40725]]
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 (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
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 (Consultation and
Coordination With Indian Tribal Governments), 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. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We determined that there are no tribal lands that were occupied by
the Buena Vista Lake shrew at the time of listing that contain the
features essential for conservation of the species, and no tribal lands
unoccupied by the Buena Vista Lake shrew that are essential for the
conservation of the species. Therefore, we are not proposing to
designate critical habitat for the Buena Vista Lake shrew on tribal
lands.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov and upon request from the
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this package are the staff members of the
Sacramento Fish and Wildlife Office.
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 revised at 74 FR 53999 (Ocotber 21, 2009) and set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.95(a) by revising the entry for ``Buena Vista
Lake Shrew (Sorex ornatus relictus)'' 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 and Kings
Counties, California, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Buena Vista Lake shrew consist of permanent and intermittent riparian
or wetland communities that contain:
(i) A complex vegetative structure with a thick cover of leaf
litter or dense mats of low-lying vegetation. Associated plant species
can include, but are not limited to, Fremont cottonwoods, willows,
glasswort, wild-rye grass, and rush grass. Although moist soil in areas
with an overstory of willows or cottonwoods appears to be favored, such
overstory may not be essential.
(ii) Suitable moisture supplied by a shallow water table,
irrigation, or proximity to permanent or semipermanent water.
(iii) A consistent and diverse supply of prey. Although the
specific prey species utilized by the Buena Vista Lake shrew have not
been identified, ornate shrews are known to eat a variety of
terrestrial and aquatic invertebrates, including amphipods, slugs, and
insects.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Universal Transverse
Mercator (UTM) Zone 11 coordinates.
(5) The coordinates for these maps are available on the Internet at
http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0062, at http://www.fws.gov/sacramento/, or at the Sacramento Fish and Wildlife
Office, 2800 Cottage Way, Sacramento, CA 95825.
(6) The index map of critical habitat units for the Buena Vista
Lake shrew (Sorex ornatus relictus) in Kern and Kings Counties,
California follows:
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[[Page 40726]]
[GRAPHIC] [TIFF OMITTED] TP10JY12.000
[[Page 40727]]
(7) Subunit 1A: Kern National Wildlife Refuge, Kern County,
California. Map of Subunits 1A, 1B, and 1C follows:
[GRAPHIC] [TIFF OMITTED] TP10JY12.001
[[Page 40728]]
(8) Subunit 1B: Kern National Wildlife Refuge, Kern County,
California. Map of Subunits 1A, 1B, and 1C is provided at paragraph (7)
of this entry.
(9) Subunit 1C: Kern National Wildlife Refuge, Kern County,
California. Map of Subunits 1A, 1B, and 1C is provided at paragraph (7)
of this entry.
(10) Unit 2: Goose Lake, Kern County, California. Map follows:
[GRAPHIC] [TIFF OMITTED] TP10JY12.002
[[Page 40729]]
(11) Unit 3: Kern Fan Recharge Unit, Kern County, California. Map
follows:
[GRAPHIC] [TIFF OMITTED] TP10JY12.003
[[Page 40730]]
(12) Unit 4: Kern Lake, Kern County, California. Map follows:
[GRAPHIC] [TIFF OMITTED] TP10JY12.004
[[Page 40731]]
(13) Unit 5: Coles Levee, Kern County, California. Map follows:
[GRAPHIC] [TIFF OMITTED] TP10JY12.005
[[Page 40732]]
(14) Unit 6: Lemoore Unit, Kern County, California. Map follows:
[GRAPHIC] [TIFF OMITTED] TP10JY12.006
[[Page 40733]]
(15) Unit 7: Semitropic Unit, Kern County, California. Map follows:
[GRAPHIC] [TIFF OMITTED] TP10JY12.007
* * * * *
Dated: June 26, 2012.
Michael J. Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-16479 Filed 7-9-12; 8:45 am]
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