Federal Register: December 28, 2004 (Volume 69, Number 248)
DOCID: FR Doc 04-28164
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
CFR Citation: 50 CFR Part 17
RIN ID: RIN 1018-AU06
NOTICE: PROPOSED RULES
ACTION: Endangered and threatened species:
DOCUMENT ACTION: Proposed rule, reopening of public comment period.
SUBJECT CATEGORY:
Endangered and Threatened Wildlife and Plants; Proposed Critical Habitat Designation for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon
DATES: We will accept public comments on the policy (non-economic) exclusions to our September 2002 proposal and any new information concerning the 15 vernal pool species addressed in this critical habitat designation until January 27, 2005.
DOCUMENT SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), announce that we are soliciting additional comments on certain areas included in our September 24, 2002, proposed rule (hereinafter referred to as the September 2002 proposal) to designate critical habitat for 4 vernal pool crustaceans and 11 vernal pool plants in California and southern Oregon (67 FR 59884). We issued a final rule based on the September 2002 proposal on August 6, 2003 (68 FR 46684). In the final rule we excluded certain specific lands that had been included in the September 2002 proposal. We excluded these lands pursuant to section 4(b)(2) of the Act based on either policy or economic reasons. On October 28, 2004, a court remanded the final designation to the Service in part, ordering the Service to make a new determination as to whether to designate the excluded areas (Butte Environmental Council v. Norton, NO. CIV. S040096 (E.D. Cal. Oct. 28, 2004). The August 6, 2003, final rule is still in effect while we reconsider the exclusions from the proposed rule and make a new final determination. Pursuant to the court order, we will evaluate the exclusions made to our proposal in two separate actions: (1) A reevaluation of exclusions based on policy or noneconomic reasons addressed herein; and (2) a reevaluation of exclusions based on economic concerns in a subsequent Federal Register notice. Comments previously submitted on the September 2002 proposal need not be resubmitted because we will incorporate them into the public record as part of this reopening of the comment period and will fully consider them in development of a new final rule.
SUMMARY:
Critical habitat designations—; California and Southern Oregon; vernal pool crustaceans and plants,
SUPPLEMENTAL INFORMATION
Background
On September 24, 2002, we published a proposed rule to designate critical habitat, pursuant to the Endangered Species Act of 1973, as amended (Act) for 4 vernal pool crustaceans and 11 vernal pool plants (67 FR 59884). The four vernal pool crustaceans involved in this critical habitat designation are the Conservancy fairy shrimp (Branchinecta conservatio), longhorn fairy shrimp (Branchinecta longiantenna), vernal pool fairy shrimp (Branchinecta lynchi), and vernal pool tadpole shrimp (Lepidurus packardi). The 11 vernal pool plant species are Butte County meadowfoam (Limnanthes floccosa ssp. californica), Contra Costa goldfields (Lasthenia conjugens), Hoover's spurge (Chamaesyce hooveri), fleshy (or succulent) owl'sclover (Castilleja campestris ssp. succulenta), Colusa grass (Neostapfia colusana), Greene's tuctoria (Tuctoria greenei), hairy Orcutt grass (Orcuttia pilosa), Sacramento Orcutt grass (Orcuttia viscida), San Joaquin Valley Orcutt grass (Orcuttia inaequalis), slender Orcutt grass (Orcuttia tenuis), and Solano grass (Tuctoria mucronata). We proposed a total of 128 units of critical habitat for these 15 vernal pool species, totaling approximately 672,920 hectares (ha) (1,662,762 acres (ac)) in 36 counties in California and one county in Oregon. In accordance with our regulations at 50 CFR 424.16(c)(2), we opened a 60 day comment period on this proposal, which closed on November 25, 2002.
All the species listed above live in vernal pools (shallow depressions that hold water seasonally), swales (shallow drainages that carry water seasonally), and ephemeral freshwater habitats. None are known to occur in riverine waters, marine waters, or other permanent bodies of water. The vernal pool habitats of these species have a discontinuous distribution west of the Sierra Nevada that extends from southern Oregon through California into northern Baja California, Mexico. The species have all adapted to the generally mild climate and seasonal periods of inundation and drying that help make the vernal pool ecosystems of California and southern Oregon unique.
Section 4(b)(2) of the Act requires that the Secretary of the Interior shall designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact to national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if she determines that the benefit of such exclusion outweighs the benefits of specifying such area as part of the critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species concerned. Thus, to fulfill our requirement to consider the potential economic impacts of the proposed designation of critical habitat for the 15 vernal pool species, we conducted an analysis of the potential economic impacts on the proposed designation and published a notice on November 21, 2002 (67 FR 70201), announcing the availability of our draft economic analysis. The notice opened a 30day public comment period on the draft economic analysis, and extended the comment period on the proposed critical habitat designation.
During the development of the final designation, we reviewed the lands proposed as critical habitat based on public comments and any new information that may have become available and refined the boundaries of the proposal to remove lands determined not to be essential to the conservation of the 15 vernal pool species. We then took into consideration the potential economic impacts of the designation, impacts on national security, and other relevant factors such as partnerships and ongoing management actions benefiting the species covered by the designation. Next, we determined that the benefits of excluding certain lands from the final designation of critical habitat for the 15 vernal pool species outweighed the benefit of including them in the designation, and the specific exclusions would not result in the extinction of any of the species involved. Lands excluded from the final designation based on policy and management plans or programs that provide a benefit to the species included: lands within specific National Wildlife Refuges and Fish Hatcheries; Department of Defense lands; Tribal lands; State Wildlife Areas and Ecological Reserves; and lands covered by habitat conservation plans or other management plans that provide a benefit for the species. We also excluded lands proposed as critical habitat in Butte, Madera, Merced, Sacramento, and Solano counties based on potential economic impacts. Thus, on July 15, 2003, we made a final determination of critical habitat for the 15 vernal pool species; the final rule was published in the Federal Register on August 6, 2003 (68 FR 46684). A total of approximately 1,184,513 ac (417,989 ha) of land falls within the boundaries of designated critical habitat (the area estimate does not reflect the exclusion of lands based on potential economic impacts from the five California counties).
In January 2004, Butte Environmental Council, and several other
organizations, filed a complaint alleging that we: (1) Violated the
Act, and the Administrative Procedure Act (APA), by excluding over 1
million acres from the final designation of critical habitat for the 15
vernal pool species; (2) violated mandatory noticeandcomment
requirements under the Act and APA; and (3) have engaged in an unlawful
pattern, practice, and policy by failing to properly consider the
economic impacts of designating critical habitat. On October 28, 2004,
the court signed a Memorandum and Order in that case. The Memorandum
and Order remanded the final designation to the Service in part. In
particular, the court ordered us to: (1) Reconsider the exclusions from
the final designation of critical habitat for the 15 vernal pool
species, with the exception of those lands within the 5 California
counties that were excluded based on potential economic impacts, and
publish a new final determination as to those lands within 120 days; and (2) reconsider the exclusion of the five
[[Page 77702]]
California counties based on potential economic impacts and publish a
new final determination no later than July 31, 2005. The court also
made it clear that the partial remand would not affect the areas
included in the August 6, 2003, final designation. This notice
addresses the first requirement of the remandthe reconsideration of
the exclusions from the final designation of critical habitat for the
15 vernal pool species, with the exception of those lands within the 5
California counties that were excluded based on potential economic
impacts, and reopens the public comment period. The second requirement
of the order, concerning the economic exclusions, will be addressed through a future Federal Register notice.
We are hereby reopening the public comment period on our September
2002 proposal for 30 days to solicit comments and any new information
concerning the noneconomic exclusions that were made during the
development of the final designation of critical habitat for the 15
vernal pool species. To facilitate this process, Table 1 lists each
specific area that was excluded from the proposed designation of
critical habitat for the 15 vernal pool species based on policy by category and size.
Table 1.Approximate Areas of Critical Habitat Exclusions for the
Vernal Pool Crustaceans and Plants in California and Oregon
Exclusion Area Acres Hectares
National Wildlife Refuges (NWR) and Fish Hatchery Exclusions
Sacramento NWR Complex........................ 19,363 7,836
San Francisco Bay NWR......................... 617 250
San Luis NWR Complex.......................... 18,014 7,290
Kern NWR Complex.............................. 4,894 1,980
Coleman Nat. Fish Hatchery.................... 13 5
Total..................................... 42,914 17,367 Department of Defense Exclusions
Beale Air Force Base.......................... 10,033 4,060
Travis Air Force Base......................... 9,651 3,906
Fort Hunter Liggett........................... 16,583 6,711
Camp Roberts.................................. 33,937 13,734
Total..................................... 70,204 28,410 Tribal Land Exclusions
Mechoopda Tribe............................... 644 261
Total..................................... 644 261
State Wildlife Areas (WA) and Ecological Reserve (ER) Exclusions Allensworth ER................................ 1,141 462 Battle Creek WA............................... 637 258 Big Sandy WA.................................. 478 194 Boggs Lake ER................................. 50 20 Butte Creek Canyon ER......................... 0.4 0.16 Calhoun Cut ER................................ 3,021 1,223 Carrizo Plains ER............................. 455 184 Dales Lake ER................................. 754 305 Fagen Marsh ER................................ 420 170 Grizzly Island WA............................. 10 4 Hill Slough WA................................ 1,559 631 North Grasslands WA........................... 5 2 Oroville WA................................... 39 16 Phoenix Field ER.............................. 7 3 San Joaquin River ER.......................... 278 113 Stone Corral ER............................... 3,074 1,244 Thomes Creek ER............................... 447 181
Total..................................... 12,373 5,007
Habitat Conservation Plans (HCP) and Cooperatively Managed Land Exclusions
Skunk Hollow HCP.............................. 239 97
Western Riverside Multiple Species HCP........ 5,730 2,319
Santa Rosa Plateau Ecological Reserve......... 4,246 1,718
San Joaquin County Multiple Species HCP....... 10 4
Total..................................... 10,224 4,138 ==============
Grand Total............................... 136,358 55,182 [[Page 77703]]
Public Comment Solicited
We intend that any final action resulting from our September 2002
proposal will be as accurate and as effective as possible. Therefore,
we solicit comments or suggestions from the public, other concerned
governmental agencies, the scientific community, industry, or any other
interested party concerning the portion of the proposed rule subject to
the court's remand order. On the basis of public comment, during the
development of our new, partial final determination we may find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2), or not appropriate for exclusion; in all of these
cases, this information would be incorporated into our new final
determination with respect to those areas. We particularly seek comments concerning:
(1) Specific information on the amount and distribution of habitat
for the 15 vernal pool species, and what habitat is essential to the conservation of the species and why;
(2) The reasons why any areas should or should not be determined to be critical habitat as provided by section 4 of the Act;
(3) Information related to the benefits of designating any of these areas as critical habitat for the 15 vernal pool species;
(4) Information related to the benefits of excluding any of these areas as critical habitat for the 15 vernal pool species;
(5) Land use designations and current or planned activities in or
adjacent to the areas proposed, and their possible impacts on proposed critical habitat;
(6) Land use designations and current or planned activities in or
adjacent to the areas proposed, and the possible impacts on those uses and activities from a critical habitat designation;
(7) Any foreseeable economic or other potential impacts resulting
from the proposed designation, including any impacts on small entities; and
(8) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating public concerns and comments.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES section). Please submit electronic comments in ASCII file format and avoid the use of special characters or any form of encryption. Please also include ``Attn: RIN 1018AUO6'' in your email subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Sacramento Fish and Wildlife Office at telephone number 916/4146600, during normal business hours.
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
Authority
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
Dated: December 17, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 0428164 Filed 122704; 8:45 am]
BILLING CODE 431055P
FOR FURTHER INFORMATION CONTACT
Arnold Roessler, at the address above (telephone 916/4146600; facsimile 916/4146710).