[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Proposed Rules]
[Pages 77700-77703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28164]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU06


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule, reopening of public comment period.

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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. S-04-0096 (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 re-evaluation of exclusions based on policy or 
non-economic reasons addressed herein; and (2) a re-evaluation 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.

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.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of several methods:

[[Page 77701]]

    1. You may submit written comments and information to the Field 
Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2800 Cottage Way, Suite W-2605, Sacramento, California 95825.
    2. You may hand-deliver written comments and information to our 
Sacramento Fish and Wildlife Office, at the above address, or fax your 
comments to 916/414-6710.
    3. You may send your comments by electronic mail (e-mail) to [email protected]. For directions on how to submit electronic filing 
of comments, see the ``Public Comments Solicited'' section below.
    Comments and materials received, as well as supporting 
documentation used in preparation of the previous designation of 
critical habitat and economic analysis will be available for 
inspection, by appointment, during normal business hours at our office 
listed in the ADDRESSES section. Copies of the proposed and final 
designation of critical habitat for these 15 species as well as our 
economic analysis are also available on the Internet at http://sacramento.fws.gov/ or by writing or calling Arnold Roessler, at the 
address or telephone number listed above.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, at the address above 
(telephone 916/414-6600; facsimile 916/414-6710).

SUPPLEMENTARY 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's-clover 
(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 30-day 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 on-going 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 notice-and-comment 
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 remand--the 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 non-economic 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
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      National Wildlife Refuges (NWR) and Fish Hatchery Exclusions
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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
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                    Department of Defense Exclusions
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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
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                         Tribal Land Exclusions
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Mechoopda Tribe...............................          644          261
                                               --------------
    Total.....................................          644          261
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    State Wildlife Areas (WA) and Ecological Reserve (ER) Exclusions
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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
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     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
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[[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 1018-AUO6'' in your e-mail 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 916/414-6600, 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. 04-28164 Filed 12-27-04; 8:45 am]
BILLING CODE 4310-55-P