[Federal Register Volume 70, Number 14 (Monday, January 24, 2005)]
[Rules and Regulations]
[Pages 3438-3461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-982]



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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; Final Rule To Designate 
Critical Habitat for the Buena Vista Lake Shrew (Sorex ornatus 
relictus); Final Rule

  Federal Register / Vol. 70, No. 14 / Monday, January 24, 2005 / Rules 
and Regulations  

[[Page 3438]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT66


Endangered and Threatened Wildlife and Plants; Final Rule To 
Designate Critical Habitat for the Buena Vista Lake Shrew (Sorex 
ornatus relictus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Buena Vista Lake shrew (Sorex ornatus 
relictus) (referred to here as the shrew) pursuant to the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 84 acres 
(ac) (34 hectares (ha)) occur within the boundaries of the critical 
habitat designation. The critical habitat is located in the Central 
Valley floor of Kern County, California.

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

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Sacramento Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 2800 Cottage Way, W-2605, Sacramento, California 
95825 (telephone 916-414-6600).

FOR FURTHER INFORMATION CONTACT: Shannon Holbrook or Arnold Roessler, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605 
Sacramento, California, (telephone 916-414-6600; facsimile 916-414-
6712).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to the Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 468 species or 37 percent 
of the 1,256 listed species in the United States under our jurisdiction 
have designated critical habitat. We address the habitat needs of all 
1,256 listed species through conservation mechanisms such as listing, 
section 7 consultations, the Section 4 recovery planning process, the 
Section 9 protective prohibitions of unauthorized take, Section 6 
funding to the States, and the Section 10 incidental take permit 
process. We believe that it is these measures that may make the 
difference between extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result of 
this consequence, listing petition responses, the Service's own 
proposals to list critically imperiled species and final listing 
determinations on existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This situation in turn fosters a second round of litigation in which 
those who fear adverse impacts from critical habitat designations 
challenge those designations. The cycle of litigation appears endless, 
is very expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs associated with the critical habitat designation process 
include legal costs, the costs of preparation and publication of the 
designation, the analysis of the economic effects and the costs of 
requesting and responding to public comments, and, in some cases, the 
costs of compliance with National Environmental Policy Act. None of 
these costs result in any benefit to the species that is not already 
afforded by the protections of the Act enumerated earlier, and these 
associated costs directly reduce the scarce funds available for direct 
and tangible conservation actions.

Background

    For background information, please see the proposed designation of 
critical habitat for the Buena Vista Lake shrew published on August 19, 
2004 (69 FR 51417). That information is incorporated by reference into 
this final rule.

Previous Federal Actions

    A final rule listing the shrew as endangered was published in the 
Federal Register on March 6, 2002 (67 FR 10101). Please refer to the 
final rule listing the shrew for information on previous Federal 
actions prior to March 6, 2002. On January 12, 2004, the United States 
District Court for the Eastern District of California issued a 
Memorandum Opinion and Order (Kern County Farm Bureau et al. v. Anne

[[Page 3439]]

Badgley, Regional Director of the United States Fish and Wildlife 
Service, Region 1 et al., CV F 02-5376 AWIDLB). The order required the 
Service to publish a proposed critical habitat determination (also 
known as a proposed rule) for the shrew no later than July 12, 2004, 
and a final determination no later than January 12, 2005. On July 8, 
2004, the court extended the deadline for submitting the proposed rule 
to the Federal Register to August 13, 2004.
    On August 19, 2004 (69 FR 51417), we published a proposed critical 
habitat designation for the Buena Vista Lake shrew. Publication of this 
proposed rule opened a 60-day public comment period, which closed on 
October 18, 2004. On September 16, 2004, we announced via local news 
media and publications that a public hearing was to be held on 
September 30, 2004, in Bakersfield, California. At the public hearing, 
approximately 10 members of the public provided or presented 
information and comments on the proposed critical habitat designation. 
On November 30, 2004, we published a notice announcing the availability 
of our draft economic analysis (DEA) of the proposed critical habitat 
designation (69 FR 69578). The notice opened a 15-day public comment 
period on the DEA, extended the comment period on the proposed critical 
habitat designation, and closed on December 15, 2004.

Summary of Comments and Recommendations

    We contacted appropriate Federal, State, and local agencies, 
scientific organizations, and other interested parties and invited them 
to comment on the proposed critical habitat designation for the Buena 
Vista Lake shrew. In addition, we invited public comment through the 
publication of a notice in the Bakersfield Californian on September 16, 
2004.
    In the August 19, 2004, proposed critical habitat designation (69 
FR 51417), we requested that all interested parties submit comments on 
the specifics of the proposal, including information related to the 
critical habitat designation, unit boundaries, species occurrence 
information and distribution, land use designations that may affect 
critical habitat, potential economic effects of the proposed 
designation, benefits associated with the critical habitat designation, 
potential exclusions and the associated rationale for the exclusions, 
and methods used to designate critical habitat. We also contacted all 
appropriate Federal, State, and local agencies, scientific 
organizations, and other interested parties and invited them to 
comment. This was accomplished through letters and news releases mailed 
to affected elected officials, media outlets, local jurisdictions, 
interest groups, and other interested individuals. In addition, we 
invited public comment through the publication of legal notices in 
newspapers throughout Kern County.
    We provided notification of the draft economic analysis (DEA) 
through postcards, letters, and news releases faxed and/or mailed to 
affected elected officials, media outlets, local jurisdictions, and 
interest groups. We published a notice of its availability in the 
Federal Register and made the DEA and associated material available on 
our Sacramento Fish and Wildlife Office Internet site on November 30, 
2004 (69 FR 69578).
    We received a total of 16 comment letters and electronic mail 
correspondences (e-mails) during the comment periods. We reviewed all 
comments received for substantive issues and new information regarding 
the Buena Vista Lake shrew. We grouped similar public comments into six 
general issue categories relating specifically to the proposed critical 
habitat determination and/or the DEA. Substantive comments and 
accompanying information have either been incorporated directly into 
the final rule or final economic analysis documents, and/or they have 
been addressed in the following summary.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we solicited review from at 
least three appropriate and independent specialists/experts regarding 
the proposed rule. The purpose of such review is to ensure that our 
critical habitat designation is based on scientifically sound data, 
assumptions, and analyses.
    We solicited peer review from 5 individuals who have detailed 
knowledge of and expertise in either mammalian biology in general, or 
shrew biology specifically, as well as scientific principles and 
conservation biology. The individuals were asked to review and comment 
on the specific assumptions and conclusions regarding the proposed 
designation of critical habitat. Two of the five reviewers submitted 
comments on the proposed designation.
    Peer Comment (1): One peer reviewer felt the proposed critical 
habitat designation incorporated the most up to date information on the 
biology of the shrew and the issues of range, distribution, and life 
history requirements of the shrew. This peer reviewer questioned 
whether connectivity of habitat fragments had been considered in 
preparation of the proposed rule. Both reviewers stated that shrews, 
that were possibly the Buena Vista Lake shrew, have been captured at 
the Atwell Island Land Retirement Demonstration project site: both 
reviewers questioned why this area was not included in the proposed 
critical habitat designation.
    Our Response (1): Although we agree that preserving connectivity 
between known occupied locations is important for the conservation of 
the Buena Vista Lake shrew, we do not believe that unoccupied and 
historical locations are essential for the conservation of the species. 
The Recovery Plan for Upland Species of the San Joaquin Valley 
(Recovery Plan) determined that the Buena Vista Lake shrew could be 
conserved by protection of habitat in three or more disjunct occupied 
conservation areas, excluding unoccupied and/or historical locations. 
All units that were described in the Recovery Plan were analyzed to 
determine if the areas exhibited the physical and biological features 
that are essential to the conservation of the shrew and would require 
special management. We have determined that the areas or units that we 
have proposed to designate as critical habitat, based on our analysis 
of the best available scientific and commercial data, provide for the 
essential lifecycle needs of the species, and provide the habitat 
components essential for the conservation of this species (i.e., the 
primary constituent elements (PCEs) described below in the Primary 
Constituent Elements section). Therefore, we do not believe that it is 
necessary for the conservation of the Buena Vista Lake shrew to 
designate critical habitat in unoccupied areas or areas that do not 
exhibit the primary constituent elements essential for the conservation 
of the species.

State and Federal Agency or Tribal Comments

    We did not receive any comments regarding the proposed critical 
habitat designation from any State, Federal or Tribal entity.

Other Public Comments and Responses

    We address other substantive comments and accompanying information 
in the following summary. Any changes and/or reference updates 
suggested by commenters have been incorporated into this final rule or 
the final economic analysis, as appropriate.

[[Page 3440]]

Issue 1--Habitat- and Species-Specific Information

    Comment (1): Several commenters stated that we have not adequately 
established that all the areas identified as critical habitat do in 
fact contain the Primary Constituent Elements (PCEs) essential for the 
conservation of the species and that the proposed designation fails to 
narrowly define those areas that have the PCEs. These commenters also 
stated they wanted excluded from designation those areas that did not 
contain the PCEs for the shrew. These comments were directed towards 
roads, pump sites, maintained canals, and other areas devoid of 
vegetation within the designation. One commenter expressed concern that 
there was no comprehensive biological study utilizing uniform 
assumptions of analysis for all five units.
    Our Response (1): We used the best scientific and commercial data 
available to us at the time in determining which areas proposed as 
critical habitat are essential for the shrew. In our final 
determination, we used additional information available to us, 
including detailed aerial imagery and other information provided by 
commenters to assist us in refining our mapping of essential habitat. 
After refining our proposal by removing additional nonhabitat and other 
nonessential areas such as roads, pump sites, maintained canals, and 
other areas devoid of vegetation, and considering the best available 
information, we conclude that the areas designated by this final rule, 
including currently occupied areas, are essential for the conservation 
of the species. In our development of the proposed designation, we 
utilized certain specific conservation criteria of protecting a variety 
of habitats, protecting suitable habitat across the range of the 
species, and protecting habitats essential for the maintenance and 
growth of self-sustaining populations in establishing the areas of 
critical habitat. This strategy was also used in the development of the 
final designation.
    Comment (2): One commenter suggested that there would be an 
increase in siltation and debris accumulation in channels and that this 
would increase maintenance burdens of water districts if there was a 
restriction in channel use due to the critical habitat designation.
    Our Response (2): In our final determination, we have additional 
information available to us, including detailed aerial imagery and 
other information provided by commenters to assist us in refining our 
mapping of essential habitat. We have determined that channels, because 
they lack the PCEs, do not provide habitat for the shrews. Therefore, 
channel areas have been removed from the critical habitat boundaries. 
Therefore, no restrictions of use or modifications to channel 
operations will be imposed due to critical habitat designation.
    Comment (3): One commenter stated that the final rule should 
recognize all cumulative impacts to the shrew occurring in the area.
    Our Response (3): In accordance with Section 4(b) of the Endangered 
Species Act, the regulations state that the Secretary shall determine 
whether a species is an endangered species or a threatened species 
because of any of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range, (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes, (3) disease or predation, (4) the inadequacy of 
existing regulatory mechanisms, and (5) other natural or manmade 
factors affecting its continued existence. As a result of this 
analysis, the Buena Vista Lake shrew was listed as endangered on March 
6, 2002 (67 FR 10101). The recognition of ``cumulative impacts'' or 
threats is part of the process of listing a species and not part of the 
designation of critical habitat.
    Comment (4): One commenter stated that the final rule should 
reflect a commitment to monitoring or improved data collection for the 
threat of selenium contamination.
    Our Response (4): Critical habitat identifies those areas which 
contain the physical and biological features that are essential to the 
conservation of the species and those areas that may require special 
management considerations or protections. Critical habitat designation 
is not intended to be a management plan for a specific area. Any 
monitoring or special management actions can be developed through 
consultation or management agreements through partnerships with 
Federal, State, local or private groups.

Issue 2--Costs and Regulatory Burden

    Comment (5): Several commenters stated that the Service needs to 
clarify the proposed rule to allow the public to understand what 
activities will be limited at each proposed unit. These commenters 
expressed concern that critical habitat designation would limit their 
land use practices. Specifically, several commenters stated concern 
over West Nile virus and whether mosquito abatement procedures would be 
allowed in areas and boundaries of those areas designated as critical 
habitat. Several commenters were concerned over ability of the city to 
provide adequate drinking water supplies if groundwater recharge 
practices were restricted. Several commenters were concerned that 
critical habitat designation will adversely affect farming operations, 
interrupt water supplies, and cause degradation of surrounding 
farmland. One commenter states that critical habitat designation has 
potential to adversely affect water management activities such as 
irrigation, municipal purposes, and flood management. One commenter 
asks if critical habitat will affect how the County administers FEMA 
regulations.
    Our Response (5): All Federal agencies are required to evaluate 
whether projects they authorize, fund, or carry out may adversely 
affect a federally listed species and/or its designated critical 
habitat. If projects with a federal nexus are not likely to adversely 
affect critical habitat, then a consultation with us would not be 
necessary. For projects that are likely to have only discountable, 
insignificant, or wholly beneficial effects on critical habitat, we 
would concur in writing and no further consultation will be necessary. 
For projects likely to have adverse affects on critical habitat, formal 
consultation would be required pursuant to Section 7 of the Act.
    Only those activities federally funded or authorized that may 
affect critical habitat would be subject to the regulations pertaining 
to critical habitat. Since all of the Buena Vista Lake shrew habitat 
within the designation is occupied by the listed Buena Vista Lake shrew 
and occurs on privately owned lands, the designation of critical 
habitat is not likely to result in a significant increase in regulatory 
requirements above those already in place due to the presence of the 
listed species.
    Buena Vista Lake shrews have been found within areas of proposed 
critical habitat where these intricate water banking and management 
operations are in place. We recognize and acknowledge that certain 
water banking and water management practices likely have no impacts on 
the Buena Vista Lake shrew and may in fact be beneficial for 
maintaining them.
    While the designation of critical habitat does not constitute a 
regulation on private lands, the Federal listing of the Buena Vista 
Lake shrew under the Endangered Species Act may affect private 
landowners. Private actions which could result in take of Buena Vista 
Lake shrew (e.g., ground disturbing activities) require an exemption 
from take following consultation under Section 7 or an

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incidental take permit under section 10 of the Act. Because the Buena 
Vista Lake shrew was listed in 2002, proposed actions on private lands 
that require Federal authorization or funding that may affect the 
species already undergo consultation under Section 7 to ensure that 
their actions are not likely to jeopardize the continued existence of 
the species. Future consultations involving private lands will also 
analyze the effect of the proposed action on designated critical 
habitat.
    The Act also requires recovery planning for listed species. 
Recovery planning for Buena Vista Lake shrew may include 
recommendations for land acquisition or easements involving private 
landowners. These efforts would be undertaken with the cooperation of 
the landowners. We also work with landowners to identify activities and 
modifications to activities that will not result in take, to develop 
measures to minimize the potential for take, and to provide 
authorizations for take through section 7 and 10 of the Act. We 
encourage landowners to work in partnership with us to develop plans 
for ensuring that land uses can be carried out in a manner consistent 
with the conservation of listed species.
    Comment (6): One commenter stated there would be economic impacts 
if water deliveries to Buena Vista Lake Recreation Area were altered. 
One commenter feels that critical habitat will cause substantial 
financial burden if changes in structures or abilities to manage for 
irrigation and floodwater or banking operations are required. One 
commenter stated that the Critical habitat designation should be 
limited to those areas that are already reserved for habitat purposes 
to minimize economic impact. One commenter stated that the Service must 
quantify economic impacts and consider cumulative impacts of the 
proposed rule.
    Our Response (6): We made a draft economic analysis (DEA) available 
for public comment for the Buena Vista Lake shrew on November 30, 2004, 
and accepted comments on the DEA from that date through December 15, 
2004 (69 FR 69578). These comments will be considered in the final EA.
    We did not propose to designate as critical habitat the Buena Vista 
Lake Recreation Area. Furthermore, based on our economic analysis, we 
do not anticipate a substantial financial burden in the area that we 
are designating. The annualized economic effects of this designation 
are estimated to be $8,752 to $12,932, based on the economic analysis 
for Kern Lake only, as all the other units were excluded from 
designation.
    Comment (7): Several commenters stated that there should be 
allowances for continued operation, maintenance, repair, and 
replacement of existing facilities.
    Our Response (7): Critical habitat designations do not prevent the 
normal operation, maintenance, repair, or replacement of existing 
facilities. However, any action that would result in the take of a 
federally listed species (e.g., ground disturbing activities), would 
require a Federal permit under section 7 or section 10 of the Act. 
Consultation on critical habitat is only triggered when there is a 
Federal nexus (action carried out, funded, or authorized by a Federal 
agency). Even if there is a Federal nexus, consultation would not be 
triggered unless the PCEs are present in the action area. Where 
possible, existing facilities, such as the ones referred to in the 
comment, have been excluded from critical habitat designation. Due to 
the mapping scale utilized in the rule, it was not possible to remove 
all areas that do not exhibit the PCEs for the species. Nonetheless, 
critical habitat does not include man-made structures and not 
containing one or more of the PCEs, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located. 
If these areas do not exhibit the PCEs, and/or there is no Federal 
nexus, the owners of the facilities would not have regulatory 
responsibilities due to critical habitat.

Issue 3--Property Rights

    Comment (8): Several commenters were concerned that designation of 
critical habitat would affect flood control and water supply to 
Bakersfield and surrounding communities. They stated the designation 
could adversely affect agricultural production and urban water 
districts if water deliveries are restricted or restrictive management 
practices are imposed.
    Our Response (8): Critical habitat designations do not constitute a 
burden in terms of Federal laws and regulations on private landowners 
carrying out privately funded activities. Unless a Federal nexus exists 
for a project proposed on private property, the critical habitat 
designation poses no regulatory burden for private landowners and 
similarly should not interfere with future land use plans. Therefore, 
we do not believe that this designation will deny ranchers and farmers 
use of their land. We have also determined that channels such as water 
delivery canals do not provide habitat for the shrews due to lack of 
the primary constituent elements, and we have removed them from the 
critical habitat boundaries. Therefore, we do not anticipate 
restrictions of use or modifications to water deliveries to be imposed 
due to critical habitat designation.
    While the designation of critical habitat does not typically result 
in regulation on private lands, the Federal listing of the Buena Vista 
Lake shrew under the Endangered Species Act may affect private 
landowners. Actions which could result in take of Buena Vista Lake 
shrew (e.g., ground disturbing activities) require a Federal permit 
under section 7 or section 10 of the Act. Because the Buena Vista Lake 
shrew was listed in 2002, Federal agencies already consult with us on 
activities in areas currently occupied by the species or, if the 
species may be affected by an action, to ensure that their action does 
not jeopardize the continued existence of the species.
    Comment (9): One commenter asks if restrictive critical habitat 
management practices imposed on federal agencies or private property 
owners seeking federal permits increase mitigation costs, property 
damage, or raise public safety issues involving the maintenance of 
flood-carrying capacity for the affected water conveyance facilities.
    Our Response (9): Critical habitat identifies those areas which 
contain the physical and biological features that are essential to the 
conservation of the species and those areas that may require special 
management considerations or protections. Critical habitat designation 
is not intended to be a management plan for a specific area. Any 
monitoring or special management practices can be developed through 
Section 7 or Section 10 of the Act. Based on previous consultations, 
there have been no restrictive management practices required that have 
resulted in increased mitigation costs, property damage, or have raised 
public safety issues. Nor do we anticipate, based on the economic 
analysis, in the future restrictive management practices that will 
increase mitigation costs, property damage or public safety issues.
    Comment (10): Several commenters stated that areas that are subject 
to a management regime that supports the shrew should be excluded from 
designation.
    Our Response (10): We exclude areas with management regimes from 
designation if a current plan provides adequate management or 
protection and meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat

[[Page 3442]]

within the area covered by the plan); (2) the plan provides assurances 
that the conservation management strategies and actions will be 
implemented (i.e., those responsible for implementing the plan are 
capable of accomplishing the objectives, have an implementation 
schedule, and adequate funding for implementing the management plan); 
and (3) the plan provides assurances that the conservation strategies 
and measures will be effective (i.e., it identifies biological goals, 
has provisions for monitoring and reporting progress, and is of a 
duration sufficient to substantially implement the plan and achieve the 
plan's goals and objectives). Units containing a management plan or 
regime that meets the above criteria have been excluded from 
designation.
    Comment (11): Several commenters stated concern over the regular 
operation, repair, and maintenance of existing oil and gas pipelines 
and water diversion canals within critical habitat boundaries. Several 
commenters are concerned that critical habitat designation will affect 
water district supplies. They stated that significant economic effects 
will occur if operations of banking projects or delivery canals require 
modifications.
    Our Response (11): Activities carried out, funded, authorized, or 
permitted by a Federal agency (i.e., Federal nexus) require 
consultation pursuant to section 7 of the Act if they may affect a 
federally listed species and/or its designated critical habitat. Our 
experience with consultations on the Buena Vista Lake shrew is that few 
oil and gas activities have involved a Federal nexus and have not 
required a consultation under Section 7 of the Act. Regardless, we have 
excluded from critical habitat the units with oil and gas pipelines due 
to their adequate management plans. See Exclusions Under Section 
4(b)(2) of the Act. Similarly, there are no water diversion canals 
within final critical habitat boundaries. The canal that occurs within 
the unit included in the final designation has been removed from the 
critical habitat boundary. Therefore, projects within these canals 
would not require consultation due to critical habitat.
    Comment (12): Several commenters stated that designation would 
result in restrictions or delays to regular operation or maintenance or 
new construction of water delivery or agricultural or industrial 
facilities, requiring consultation with the Service.
    Our Response (12): All lands designated as critical habitat are 
within the geographic area occupied by the species, and are likely to 
be used by the Buena Vista Lake shrew, whether for foraging, breeding, 
growth of juveniles, genetic exchange, or sheltering. Thus, we consider 
all critical habitat units to be occupied by the species. Federal 
agencies already consult with us on activities in areas currently 
occupied by the species or if the species may be affected by the action 
to ensure that their actions do not jeopardize the continued existence 
of the species. Therefore, we believe that the designation of critical 
habitat is not likely to result in additional regulatory burden above 
that already in place due to the presence of the listed species.

Issue 4--Mapping Methodology

    Comment (13): Several commenters asked that specific areas that 
they believed do not exhibit the PCEs be excluded from the critical 
habitat designation.
    Our Response (13): Where site-specific documentation was submitted 
to us providing a rationale as to why an area should not be designated 
critical habitat, we evaluated that information in accordance with the 
definition of critical habitat pursuant to section 3 (5)(A) of the Act 
and the provisions of section 4 (b)(2) of the Act. Following our 
evaluation of the parcels, we made a determination as to whether 
modifications to the proposal were warranted. In the preparation of the 
final rule, we further examined the area proposed and we refined the 
critical habitat boundaries to exclude, where possible within the 
limitations of our minimum mapping scale, those areas that did not, or 
were not likely to, contain the PCEs for the Buena Vista Lake shrew.
    Please refer to the Summary of Changes from the Proposed Rule 
section of this final rule for a more detailed discussion of changes 
and exclusion from the proposed rule.
    Comment (14): One commenter urges the Service to expand critical 
habitat designation to include all habitats essential to the 
conservation of the species and in need of special management. The 
commenter further states that the proposed rule does not ensure 
recovery of the species. They state that the designation is too small 
and too isolated to ensure viable, self-sustaining populations. They 
argued that the rule should include occupied as well as unoccupied 
potential habitat that could be recolonized and provide potential 
dispersal habitats. This commenter also stated that the Service should 
analyze areas described in the Recovery Plan for inclusion in the final 
rule, as well as areas to provide connectivity. One commenter 
recommends identifying locations, such as irrigation ditches and other 
potentially restorable riparian habitats which might provide essential 
connectivity between existing large blocks of core habitat. This 
commenter also wants the required agriculture land location at Atwell 
Island near Alpaugh included as critical habitat.
    Our Response (14): Although we agree that preserving connectivity 
between known occupied locations is important for the conservation of 
the Buena Vista Lake shrew, we do not believe that unoccupied and 
historical locations are essential for the conservation of the species. 
The Recovery Plan for Upland Species of the San Joaquin Valley 
(Recovery Plan) determined that the Buena Vista Lake shrew could be 
conserved by protecting habitat in three or more disjunct occupied 
conservation areas, excluding unoccupied and/or historical locations. 
All units that were described in the Recovery Plan were analyzed to 
determine if the areas exhibited the physical and biological features 
(PCEs) that are essential to the conservation of the shrew and may 
require special management. The five units that we have proposed to 
designate as critical habitat provide for the essential life-cycle 
needs of the species, and provide the habitat components essential for 
the conservation of this species (i.e., the primary constituent 
elements (PCEs) described below in the Primary Constituent Elements 
section). Under the Act, areas without PCEs cannot be designated 
critical habitat, such as these areas suggested for potentially 
restorable areas, unless determined to be essential for the 
conservation of the species. Again, we have determined that the areas 
or units that we have proposed to designate as critical habitat provide 
the habitat components essential for the conservation of this species. 
Therefore, we do not believe that it is necessary to the conservation 
of the Buena Vista Lake shrew to designate critical habitat in 
unoccupied areas.

Issue 5--Procedural Concerns

    Comment (15): Several commenters stated concerns because the 
proposed rule was not accompanied by an economic analysis. They claimed 
it was difficult to comment on the proposed rule without reviewing the 
information from the economic analysis.
    Our Response (15): We made a draft of the economic analysis (DEA) 
available for public comment for the Buena Vista Lake shrew on November 
30, 2004, and accepted comments on the DEA from that date through 
December 15, 2004 (69 FR 69578). The information presented in the DEA 
has been reviewed

[[Page 3443]]

and its analysis has been included in our decisionmaking process for 
the final designation.
    Comment (16): Several commenters stated that the Service could not 
designate critical habitat without first complying with NEPA 
requirements.
    Our Response (16): We published a notice in the Federal Register on 
October 25, 1983 (48 FR 49244) outlining our reasons for our 
determination not to prepare an environmental analyses as defined by 
the NEPA in connection with designating critical habitat under the 
Endangered Species Act of 1973, as amended. It is our position that in 
the Ninth Circuit, as upheld by the courts (Douglas County v. Babbitt, 
48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996), 
we do not need to prepare environmental analyses as defined by the 
NEPA.
    Comment (17): One commenter argued that the proposed critical 
habitat designation contains areas that are not occupied by the shrew. 
The commenter stated that Congress restricts the authority of the 
Service to designate critical habitat in areas that are occupied.
    Our Response (17): All lands designated as critical habitat are 
within the geographic area and have been documented to be occupied by 
the species (CNDDB 2004; Maldonado 1992; Williams and Harpster 2001; 
ESRP 2004), and are likely to be used by the Buena Vista Lake shrew, 
whether for foraging, breeding, growth of juveniles, genetic exchange, 
or sheltering. Thus, we consider all critical habitat units to be 
occupied by the species.
    Comment (18): One commenter requested that Unit 2 be excluded from 
designation because it is currently in negotiations for a Section 7 
permit, which the commenter believes would provide the area with a 
sufficient management plan.
    Our Response (18): A current plan provides adequate management or 
protection if it meets three criteria, outlined above in our Response 
to Comment 10. A Section 7 consultation with long-term conservation 
assurances provides for the long-term protection and management of the 
species and its habitat. At the time we received this comment, the 
Service was in negotiations for a Section 7 permit. A Biological 
Opinion with long-term conservation assurances has since been completed 
and issued for the Gooselake project. The Goose Lake Unit has been 
excluded from designation based on the conservation measures that will 
benefit the Buena Vista Lake shrew outlined in the Section 7 
consultation and long term easement on the project. See Exclusions 
Section.
    Comment (19): The City of Bakersfield stated that it is operating 
under current management practices that benefit the shrew and that it 
is currently developing a management plan to benefit the shrew, and 
therefore its unit should be excluded from designation.
    Our Response (19): The City of Bakersfield's Kern Fan Water 
Recharge Unit has been excluded from designation based on the 
conservation measures that will benefit the Buena Vista Lake shrew 
outlined in the management plan which meets the Service's exclusion 
criteria. See Exclusions Section.
    Comment (20): Several commenters stated that the Coles Levee Unit 4 
is covered by a management plan sufficient for the protection of the 
species and its habitat and should be excluded from designation. The 
commenters stated that the conservation easement for the Coles Levee 
Unit, that is held by California Department of Fish and Game, 
specifically recognizes the shrew in Section 5.3 of the easement as a 
``Species of Concern Benefited by this Easement.''
    Our Response (20): We have reviewed and evaluated the conservation 
easement conditions which meet the Service's exclusion criteria. We 
have determined that the Coles Levee Unit 4 should be excluded from the 
designation based on the conservation measures that will benefit the 
Buena Vista Lake shrew. See Exclusions section.

Issue 6--Economic Analysis

    Comment (21): One comment suggested that the analysis should 
address the costs associated with ``allowing the extinction of the 
subspecies of shrew, including the genetic traits necessary for the 
survival of the entire species.'' Furthermore, extinction of the shrew 
would be a loss of opportunity for students and scientists who study 
the species, and who also spend money locally.
    Our Response (21): The purpose of the DEA is to estimate the 
economic effects of conservation activities associated with the listing 
and designation of critical habitat for the shrew, as well as the 
economic effects of the protective measures taken as a result of the 
listing. The Service believes that the benefits of critical habitat 
designation are best expressed in biological terms that can be weighed 
against the expected cost impacts of the rulemaking. Thus, the DEA does 
not provide a monetary measure of the economic benefits of preventing 
extinction.
    Comment (22): One comment indicated that the economic analysis of 
critical habitat designation should measure not only loss of profit 
(i.e., lost producer surplus) of affected businesses, but loss of 
revenue as a measure that may better capture the total economic 
impacts, including ``employment dislocation'' and ``associated ill 
effects.''
    Our Response (22): The Service acknowledges that the economic 
effects identified by the commenter are important, and should be 
addressed. Both categories of effects (i.e., welfare change in terms of 
lost producer surplus, and distributional effects in terms of 
employment dislocation) were addressed in the DEA. However, guidance 
from OMB, and compliance with Executive Order 12866 specifies that 
Federal agencies measure changes in economic efficiency as a means of 
understanding how society will be affected by a regulatory action. This 
provides a measure of the net impact of conservation measures. 
Consideration of how certain economic sectors or groups of people are 
affected in a distributional manner is important and should be 
considered, but OMB encourages Federal agencies to consider 
distributional effects separately from efficiency effects. These 
distinctions are discussed in Sections 1.1.1 and 1.1.2 of the DEA. As 
such, the DEA presents the quantitative effects of shrew conservation 
measures as the efficiency effects, and presents the distributional 
effects of changes in agricultural activities in Section 5.5.
    Comment (23): One comment suggested that the water requirement 
assumption of 3.5 acre-feet per acre is ``much too high, and that use 
of evapotranspiration rates for field crops and grass is not 
appropriate because it does not account for shading or mulch (as 
suitable habitat for the Buena Vista Lake shrew).''
    Our Response (23): Several sources were consulted to determine 
appropriate water requirements for use in the DEA. The estimate of 3.5 
acre-feet per acre was suggested by managers of the Kern National 
Wildlife Refuge (KNWR). As noted by those managers and as reported in 
Section 6.3.5.1 of the DEA, a rate of 3.5 acre-feet per acre provides 
for optimal management of habitat in KNWR. This level was considered 
reasonable because all units are in the same geographic zone, and the 
KNWR water rate reflects optimal management conditions. As noted in 
Section 2.0 of the DEA, estimates of water requirements for wetland 
habitat in the San Joaquin Valley range as high as 10 acre-feet per 
acre.

[[Page 3444]]

    Comment (24): One comment noted that the cost of water purchases 
for maintaining habitat based on $209 per acre-foot is ``not 
accurate,'' and would instead require the purchase of permanent water 
rights for ``a guaranteed source of water.'' Furthermore, current costs 
for water is $2,500 per acre-foot.
    Our Response (24): In drafting the DEA, the need for water was 
investigated for each of the proposed units. This research concluded 
that supplemental water would be necessary on two units (Unit 1, Kern 
National Wildlife Refuge; and Unit 2, Goose Lake), but may or may not 
be warranted on the remaining three units. The DEA assumes that 
supplemental water may be purchased on an as-needed basis. The $209 per 
acre-foot estimate is an average spot price for leased water, 
equivalent to a one-time, one-use acquisition. The purchase of 
permanent water rights would add more certainty to the attainment of 
water, and would be a reasonable and conservative assumption. There is 
little difference between a purchase price of $2,500 per acre-foot and 
discounted annual purchases of leased water, however. Thus, this 
comment does not significantly change the quantitative results of the 
economic analysis.
    Comment (25): One comment letter inquired whether all the water 
applied to shrew habitat would be transpired or evaporated, or whether 
some would soak into the ground for eventual availability to adjacent 
water banks or croplands.
    Our Response (25): The DEA considered the water diversion 
requirement (that is, the gross amount of water that would be applied 
to habitat). It is understood in the DEA that only a portion of that 
water would be used by plants or evaporated, and that at least some of 
that water would soak into the ground and would be available for other 
uses.
    Comment (26): Multiple comments stated that the DEA understated the 
cost to water districts by not considering ``worst case'' operating and 
maintenance costs if the Service imposes restrictions on Federal 
surface water allotments, use of conveyance systems, water banking, and 
other water district activities and programs.
    Our Response (26): A range of possible scenarios was investigated 
through interviews with area water district managers and 
representatives exploring the potential restrictions or other measures 
that could be imposed on water districts or purveyors. The ``worst 
case'' scenarios were considered, including the possibility of much 
higher costs for purchased water, and the possibility of closure of the 
existing facilities to future uses for water banking or withdrawal. 
However, further research revealed that these scenarios could not be 
substantiated through available information and therefore were too 
speculative to be considered reasonably foreseeable.
    Comment (27): A comment submitted on behalf of the City of 
Bakersfield, Kern County Farm Bureau, Kern County Water Agency, and 
J.G. Boswell Company suggested that designation of Unit 3 as critical 
habitat, Kern Fan Water Recharge Area (KFWRA), ``places in jeopardy 
roughly $37.5 million in water resources'' of the City of Bakersfield, 
and ``another $25 million in potential replacement costs'' for other 
entities who bank water (Buena Vista Water Storage District, Cal Water 
Service Company, Kern County Water Agency, and the Olcese Water 
District). The comment states that the KFWRA is an essential element of 
the City's water supply that is relied upon for water storage. If 
banking of water at this project is restricted, the City may be 
required to seek additional water supplies from the already stressed 
State Water Project and Central Valley Project, which will result in 
additional economic and environmental impacts. Further, if banking of 
water during flood events is restricted, Kern River water could flood 
adjacent properties resulting in public safety risks. The commenter 
also suggested that the designation of Unit 3 may alter the diversion 
of water upstream of the habitat area and that Section 7 consultations 
``could cause the Army Corps of Engineers to re-schedule its 
operational releases from Lake Isabella to maintain habitat downstream 
in Unit 3.''
    Our Response (27): Importantly, Unit 3 of the proposed designation 
is excluded from the final designation and impacts to water banking 
projects including the KFWRA associated with shrew conservation 
measures are therefore not expected. The following discussion, however, 
provides some context to the consideration of this project in the DEA. 
Multiple possible management scenarios for Unit 3 were investigated in 
the development of the DEA through interviews with area water district 
managers and representatives exploring the potential restrictions or 
other measures that could be imposed on water districts or purveyors. 
This research determined that a change in the management of the water 
recharge area from its historic operations would not be required if 
Unit 3 is designated as critical habitat. In the case that water 
banking quantity or timing were impacted, economic impacts could occur 
though all information gathered during the development of the DEA did 
not suggest this would be the case.
    Comment (28): One comment noted that, should the banked water from 
the Kern River and Friant-Kern Canal in Unit 3 be made unavailable to 
the Pioneer Project, Kern Water Bank, and Berrenda Mesa Project, the 
``replacement value'' at a rate of $209 per acre-foot for a total of 
43,337 acre-feet banked annually would amount to $9.1 million per year 
(or $130 million over 20 years applying a seven percent discount rate). 
Additionally, the commenter states that the DEA doesn't consider total 
economic impacts; ``secondary impacts'' resulting from timing of water 
supply and economic dislocation may result in an even greater cost. 
Applying a multiplier of 2.2, the commenter suggests impacts may be as 
high as $311 million. The commenter further suggests that 
``conservation of that water may entail fallowing in some other 
location that is supplying the water,'' and cites estimates for field 
crops (e.g., alfalfa) and the loss of revenue that would lead to an 
economic impact of $21.8 million annually. An additional commenter 
suggested that the Friant Water Authority could be affected in its 
ability ``to manage flood waters with Kern and Tulare County water 
districts and growers throughout its Service Area.''
    Our Response (28): Unit 3 is not included in the final designation 
for the BLVS and therefore no costs are expected related to the shrew 
designation in this area for purchase of replacement water. The 
following discussion, however, provides more information on the water 
use in the region. The current operation of Unit 3 is as a water 
recharge area, where excess flows from the Kern River are allowed to 
percolate to the groundwater aquifer for later extraction. The DEA 
concludes that a change in the management of the water recharge area 
from its historic operations would not be required if the area were to 
be designated as critical habitat and, as such, that there would not be 
a need to purchase the replacement of 43,337 acre-feet. In the case 
that operations were significantly affected, and some amount of water 
lost to these projects, the DEA would understate the economic effects 
to water users.
    The Kern Fan Water Recharge Area also serves as a flood control 
management area, where flood flows may be deposited and channeled from 
other areas. The DEA concludes that the area will continue its historic 
use of flood management. To the extent that

[[Page 3445]]

flood management uses were restricted, the DEA would understate the 
economic effects in Unit 3.
    Comment (29): One commenter stated that the Friant-Kern Canal and 
its district distribution systems could be affected by additional 
vegetation control or management on canals directing water to the 
critical habitat units.
    Our Response (29): Neither the Friant-Kern Canal or Friant Water 
Authority and its member districts have facilities within or adjacent 
to any of the proposed units, and their distribution systems are not 
likely to be affected with additional vegetation control requirements.
    Comment (30): One commenter indicated that the requirement for 
water to enhance critical habitat units ``could cause a redirection of 
water in the Friant-Kern Canal,'' and that such a redirection would 
cause a financial burden to the Friant Water Authority. The commenter 
further notes that water purchased by the federal government for the 
critical habitat units ``must be delivered to the sites, and the costs 
of which would be partly provided by the Authority.''
    Our Response (30): The need for supplemental water in each of the 
critical habitat units is effected by the assumption that water will be 
purchased from willing sellers. As such, no redirection or displacement 
of existing uses would take place; rather, supplemental water may be 
purchased on an as-needed basis. A $209 per acre-foot estimate is an 
average spot price for leased water, equivalent to a one-time, one-use 
acquisition. The purchase price is assumed to include cost of delivery, 
and thus it would cover the cost of conveyance systems. The economic 
costs for water purchases are discussed in Section 6.3.5 in the DEA.
    Comment (31): One commenter noted that requirement of water to 
flood habitat may burden the water districts operating the Friant-Kern 
Canal. During dry years, when the amount of water is limited, 
additional burden may occur on the Friant Water Authority and its 
member districts.
    Our Response (31): The supplemental water for the critical habitat 
units is assumed to be purchased on an as-needed basis from willing 
sellers. In dry years, when water to member districts may be limited, 
the critical habitat units may also be limited in acquisition of water. 
In other words, water for the critical habitat units is necessarily 
secondary (or junior) to the member districts, and may not be available 
in dry years. As such, that the units need water is not expected to 
have a supplemental financial burden effect on member districts.
    Comment (32): Two comments indicated that the cost to agriculture 
is understated in that a larger buffer that the 45 feet estimated in 
the DEA would be necessary between farmed lands and critical habitat. 
One commenter also suggested that farmers who typically use aerial 
application of pesticides may have to change to more expensive ground 
application, and incur the higher costs.
    Our Response (32): For the DEA, the Extension Service was consulted 
regarding the appropriate width of a buffer that is intended to prevent 
pesticide drift from farmed lands, and that would also allow for 
maneuverability of farm equipment. This width (45 feet) was used in the 
analysis.
    Aerial application of pesticides is more likely to result in 
pesticide drift than are ground-based methods. There are six or fewer 
farms with cultivated land located adjacent to critical habitat. These 
are farms that are adjacent to Unit 2 (Kern Fan Recharge), Unit 3 
(Goose Lake), and Unit 5 (Kern Lake). To the extent that any or all of 
these farms currently use aerial pesticide applications and switch to 
ground applications then the annual cost to those farms may be 
understated assuming costs of ground application is more expensive. It 
is not clear, however, how and where these farms employ pesticides, and 
it was not determined in the development of the DEA that aerial 
application would be restricted.
    Comment (33): One comment indicated that the cost to agriculture is 
overstated, in that the value of the fruit produced in buffers should 
be subtracted from the cost of the trees.
    Our Response (33): The DEA assumed that the pomegranate tree 
buffers planted on agricultural lands would not be developed for 
commercial production purposes, but to create ``hedgerow thickets'' 
designed to limit pesticide drift. As such, the plantings would be 
dense and managed for brush and foliage rather than fruit production, 
the yield of which would be less than a comparable orchard. Harvesting 
of fruit would be made difficult by the thicket. In conclusion, any 
revenue from fruit sales would be minimal.
    Comment (34): One comment indicated that in Unit 5 (Kern Lake), 
``soil and groundwater conditions will not allow tree production'' in 
the proposed buffer strip.
    Our Response (34): The buffers would be installed in currently 
cultivated farmland. To the extent that the suggested buffer planting 
of a pomegranate hedgerow will not survive because of the soil type, an 
alternative brushy or hedgerow plant could be identified as suitable 
for the soils. The cost of installing the buffer is not expected to 
vary more than a nominal amount from that estimated in the DEA in the 
case that a different hedgerow is required.
    Comment (35): One comment noted that the DEA statement that ``there 
is no cultivated farmland within the boundaries of the proposed 
designation'' is not accurate. The commenter noted that approximately 
47 acres in four fields within Unit 2, Goose Lake, have been cultivated 
in the past, and have been and are eligible for annual loan deficiency 
(Farm Program) payments.
    Our Response (35): To the extent that the land continues to be 
enrolled in the Farm Program, and the owners choose not to cultivate 
the land for crop production in the future in order to avoid an 
incidental take of shrew, then the effect of the critical habitat 
designation would be the difference between net revenue (after 
expenses) of crop production and the farm program deficiency payment. 
This amount will vary depending upon crop and deficiency payment 
amount. In 2004, according to the commenter, the fields received loan 
deficiency payments, indicating that they may not have been cultivated 
and have not been used to produce an alternate crop. If this status 
were to continue in the future, there would be no effect on the owner 
from the critical habitat designation.
    Comment (36): One commenter states that the DEA ``fails to address 
the impacts to upstream agricultural water users if their water 
allotments are reduced or eliminated.''
    Our Response (36): The DEA considered the water needs of the 
critical habitat units, and acknowledges that supplemental water, 
whether required or optional, would necessitate a purchase or lease of 
water from willing sellers. Section 6.3.5 provides an analysis of the 
water requirements and associated costs for each of the units. The DEA 
also contemplated the possibility of closure of the existing facilities 
or effects on water users upstream of the units and determined these 
scenarios were considered unlikely; therefore, associated impacts were 
too speculative to be considered reasonably foreseeable.
    Comment (37): One comment letter requested information as to 
whether critical habitat designation in Unit 5 (Kern Lake) would 
affect: (1) Mosquito abatement; (2) diversions of water from New Rim 
Ditch; (3) timing and

[[Page 3446]]

quantities of flows through the Kern Delta Water District facilities; 
(4) farming activities adjacent to Unit 5; (5) operation of the tile 
drain system; (6) maintenance of canals and roadways; (7) eligibility 
of the site for development into a mitigation bank; (8) eligibility for 
inclusion of Unit 5 into the Metropolitan Bakersfield HCP; and (9) 
activities of the owner to voluntarily supply water to the site.
    Our Response (37): In the development of the DEA, our investigation 
regarding whether changes would be recommended to modify existing 
mosquito abatement activities revealed that producers who follow 
pesticide labels instructions for application will not be impacted by 
shrew conservation activities. The Kern Delta Water District uses the 
New Rim Ditch to transport water to its service members. The New Rim 
Ditch lies adjacent to, but outside of, critical habitat in Unit 5. It 
was determined that requirements for changing diversions, quantities, 
and timing of flows through existing facilities was not reasonably 
foreseeable in this area. The DEA considered farming activities in 
terms of the planting of buffer strips on adjacent lands, including 
those adjacent to Unit 5 (see Section 5.4 of the DEA). Implementation 
of these buffer zones is estimated to cost approximately $5,187 
annually. The DEA also considered whether designation of critical 
habitat would affect operation, or possible removal, of the tile drain 
system. Discussions with the land owner indicate that operations on the 
tile drain system include periodic maintenance and repair of the pumps 
transporting tailwater at the end of the drains; these activities are 
not likely to affect the shrew. Routine maintenance of canals and 
roadways, including grading and adding to gravel base, have been 
conducted in the past and are not anticipated to be restricted due to 
shrew conservation activities. Further investigation did not indicate 
that designation of Unit 5 would limit its eligibility for development 
into a mitigation bank, or inclusion into the Metropolitan Bakersfield 
HCP. The potential for restrictions on additional water supply, or 
changes in the timing of water applications to the site, were also 
considered. Such activities are not likely to be restricted or limited 
as the shrew thrives on moist edges to wetted areas, and could 
reasonably adapt under these conditions.
    Comment (38): One comment letter expressed concern about the future 
status of the tile drain system in Unit 5 (Kern Lake), and the economic 
damage in terms of land values and crop losses ``in excess of $30 
million'' that would result if the Service required it to be 
dismantled.
    Our Response (38): In developing the DEA, the possibility of 
impacts to tile drain system project, including its removal, were 
examined. No evidence was uncovered to give reason to assume that the 
existing system or tile drain in place would require any alteration, 
and therefore it was determined that there would not be any reasonably 
foreseeable loss of land value or crop production associated with 
modification to this project.
    Comment (39): One commenter stated that the Kern Delta Water 
District operates and maintains the New Rim Ditch in Unit 5, and 
expressed concern that the district would be impacted if their ability 
to operate the ditch is affected by the designation.
    Our Response (39): The New Rim Ditch, levee, and adjacent roadway 
are on the boundary, but outside of, the Unit 5. Previous operations 
and use of the New Rim Ditch have been conducive for the survival of 
the shrew, and the seepage has been beneficial for its habitat. As long 
as current operations and use do not change in the future, there would 
be no restrictions placed upon it that would result in economic 
effects.
    Comment (40): One commenter indicated that the Buena Vista Water 
Storage District (BVWSD), which owns the Outlet Canal, located within 
Unit 4, Coles Levee, could be affected if they are unable to line the 
canal as they plan.
    Our Response (40): Proposed Unit 4 is not included in the final 
designation for the BLVS and therefore no further costs are expected 
related to the shrew associated with this potential project. The 
following discussion, however, provides more information on the Outlet 
Canal lining project. A representative of the BVWSD was contacted 
regarding operational plans for the Outlet Canal. The BVWSD has 
considered lining the Outlet Canal since the late 1970s, but never 
completed necessary feasibility studies. More recently, the District 
has begun to consider it again, based on the installation of new 
equipment to better measure the seepage from the canal. Among the study 
alternatives is the efficacy of lining the entire canal (bottom and 
sides) versus lining the bottom and only parts of the sides, leaving 
the top parts of the levees unlined in order to protect the waterway 
habitat. Lining of the canal could provide the BVWSD with a reduction 
in seepage loss and ability to use or sell the conserved water. The 
benefit to the BVWSD of the additional water would be offset by the 
cost of lining. Future improvements or changes to the Outlet Canal are 
uncertain, as the economic feasibility of improvements to the BVWSD has 
not yet been determined.
    Comment (41): One comment asserts that the study understated the 
full range of effects on private individuals or entities due to Section 
7 consultations that induce the preparation of biological reports. In 
particular, costs of preparation and ongoing operating costs for the 
Kern County Valley Floor HCP are understated. The Kern County Planning 
Department estimates that these costs are $200,000 for completion of 
the HCP document and more than $70,000 annually in subsequent years for 
implementation.
    Our Response (41): The costs to private entities was determined 
along with other costs associated with Section 7 consultations and 
development of HCPs. Table 16 in the DEA provides a summary of the 
costs to non-Federal entities, both as a result of the listing and 
anticipated in the future.
    With respect to the Kern County Valley Floor HCP, the commenter was 
contacted for cost estimates in the course of preparing the DEA, and 
those costs were subsequently included in the revised economic 
analysis. The total cost to date of $450,000 was assumed to be divided 
equally among the 28 species included in the HCP. The prospective 
annual cost, which is $125 as shown in Table 16, was based on the 
$70,000 forecasted by the commenter as required to complete the HCP. 
The annual costs may appear understated because they are assumed to be 
shared equally among the 28 listed species considered in the HCP.
    Comment (42): One comment suggested that designation of Unit 3, 
Kern Fan Water Recharge, would necessitate the installation of ``an 
irrigation system such as sprinklers * * * to water disconnected areas 
and establish sufficient vegetative cover.'' As such, the DEA should 
include the annual costs for a sprinkler system.
    Our Response (42): Proposed Unit 3 is currently operated as a water 
recharge area, where excess flows from the Kern River are allowed to 
percolate to the groundwater aquifer for later extraction. The DEA did 
not anticipate significant enough changes to operations in this Unit to 
necessitate the installation of infrastructure for irrigation. However, 
Unit 3 is not included in the final designation for the BLVS and 
therefore no costs are expected related to the shrew for an irrigation 
system in this area.
    Comment (43): One comment noted that the DEA does not consider 
``the costs of replacing the consumptive use

[[Page 3447]]

of water needed to moisten shrew habitat'' within Unit 3, the Kern Fan 
Water Recharge, and that the replacement of 9,163 acre-feet of 
groundwater in that unit would cost $1.9 million annually.
    Our Response (43): Unit 3 is not included in the final designation 
for the BLVS and therefore no costs are expected related to the shrew 
for purchase of replacement water. The following discussion, however, 
provides more information on the consumptive water use in the region. 
The Kern Fan Water Recharge area operates as a water bank with an 
intentional use of allowing water to percolate to the groundwater 
aquifer for eventual reuse. In allowing percolation of supplemental 
water, and simultaneously providing habitat moisture to the benefit of 
the shrew, some evaporative loss may occur that would not be 
recoverable. Assuming a 15 percent rate of evaporative loss, 
approximately 1,375 acre-feet of the supplemental water would not be 
available to groundwater users. It should be noted that it is not known 
whether supplemental water will be required in the Kern Fan Recharge 
Area. If water is required, it is assumed that water would be purchased 
from willing sellers, and hence would not displace other existing uses. 
Nevertheless, should the water be required, the upper bound on the 
opportunity cost of the 1,375 acre-feet of water lost, at $209 per 
acre-foot, would be $287,375 annually.
    Comment (44): One comment letter stated that the Semitropic Water 
District owns and operates a canal in Unit 2 for water delivery and 
transport of flood waters, and concern was expressed that the district 
would be constrained in its operations or use of the canal.
    Our Response (44): This canal is not included in the final 
designation for the shrew as Unit 2 has been excluded from designation 
and therefore no economic impacts are anticipated to this project. 
Current operations of the canal in Unit 2 for water delivery and 
transport of flood waters have permitted the survival of the shrew, 
however, and investigation regarding whether the canal's operation or 
use would be restricted in the future under a critical habitat 
designation concluded that restrictions are reasonably foreseeable.
    Comment (45): One comment letter submitted on behalf of the 
Gooselake Holding Company (GHC) clarified the ownership status and 
plans for surface water regulation and groundwater recharge within Unit 
2, Goose Lake, consistent with a Biological Opinion signed by the 
Service on November 15, 2004. GHC owns most of the Goose Lake Area, not 
the Semitropic Water Storage District as stated in the DEA.
    Our Response (45): The Biological Opinion for this project was 
signed after the publication date of the DEA. The Service appreciates 
these clarifications to the description in the DEA and they are 
incorporated into the revised analysis. It is of note, however, that 
Unit 2 of the proposed critical habitat, which contains this project, 
has been excluded from the final designation of critical habitat.
    Comment (46): One comment inquired whether water purchased for 
maintenance of shrew habitat would enhance waterfowl habitat in Unit 2 
(Goose Lake), and if so, could a monetary value be placed on the 
enhancement and deducted from the cost of water.
    Our Response (46): It is possible that waterfowl habitat would be 
enhanced by purchase of water for shrew habitat. However, estimating 
the monetary value or economic benefits (``negative costs'') of habitat 
enhancement is extremely difficult, and requires that a strict set of 
conditions be met in order to follow the guidance of the Office of 
Management and Budget and develop useable results. While improvements 
to habitat to other species may occur, the Service believes that the 
benefits of critical habitat designation are best expressed in 
biological terms that can be weighed against the expected cost impacts 
of the rulemaking. Thus, this DEA does not provide a monetary measure 
of the economic benefits of improving habitat for other species.

Summary of Changes From the Proposed Rule

    In preparing our final designation of critical habitat for the 
Buena Vista Lake shrew, we reviewed comments received on the proposed 
designation of critical habitat. In addition to minor clarifications in 
the text, we made numerous changes to our proposed designation, as 
follows:
    (1) Under section 4(b)(2) of the Act, we excluded four properties 
with adequate management plans that provide for conservation of the 
Buena Vista Lake shrew and its habitat. For more information, refer to 
Exclusions Under 4(b)(2) of the Act section below.
    (2) We refined our mapping boundaries, using the best information 
available to us, to include only occupied areas which we have 
determined to have the primary constituent elements and are essential 
to the shrew. We removed canals, open water areas, and other 
nonessential areas from the proposed critical habitat designation.
    (3) Collectively, we excluded a total of 4,566 ac (1,848 ha) of 
federally and privately-owned lands from this final critical habitat 
designation.

           Table 1.--Proposed and Final Critical Habitat Area
------------------------------------------------------------------------
            Unit                    Proposed                Final
------------------------------------------------------------------------
1. Kern Wildlife Refuge Unit  387 ac (157 ha).....  0 ac (0 ha).
2. Goose Lake Unit..........  1,277 ac (517 ha)...  0 ac (0 ha).
3. Kern Fan Recharge Unit...  2,682 ac (1,085 ha).  0 ac (0 ha).
4. Coles Levee Unit.........  214 ac (87 ha)......  0 ac (0 ha).
5. Kern Lake Preserve Unit..  90 ac (36 ha).......  84 ac (34 ha).
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
------------------------------------------------------------------------

Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the

[[Page 3448]]

species. ``Conservation'' means the use of all methods and procedures 
that are necessary to bring an endangered or a threatened species to 
the point at which listing under the Act is no longer necessary.
    The designation of critical habitat does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve, or other 
conservation area. It does not allow government or public access to 
private lands. Under section 7 of the Act, Federal agencies must 
consult with us on activities they undertake, fund, or permit that may 
affect critical habitat and lead to its destruction or adverse 
modification. However, the Act prohibits unauthorized take of listed 
species and requires consultation for activities that may affect them, 
including habitat alterations, regardless of whether critical habitat 
has been designated. We have found that the designation of critical 
habitat provides little additional protection to most listed species.
    To be included in a critical habitat designation, habitat must be 
either a specific area within the geographic area occupied by the 
species on which are found those physical or biological features 
essential to the conservation of the species (primary constituent 
elements, as defined at 50 CFR 424.12(b)) and which may require special 
management considerations or protections, or be specific areas outside 
of the geographic area occupied by the species which are determined to 
be essential to the conservation of the species. Section 3(5)(C) of the 
Act states that not all areas that can be occupied by a species should 
be designated as critical habitat unless the Secretary determines that 
all such areas are essential to the conservation of the species. Our 
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall 
designate as critical habitat areas outside the geographic area 
presently occupied by the species only when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
species.''
    Regulations at 50 CFR 424.02(j) define special management 
considerations or protection to mean any methods or procedures useful 
in protecting the physical and biological features of the environment 
for the conservation of listed species. When we designate critical 
habitat, we may not have the information necessary to identify all 
areas that are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we consider to 
be essential, using the best information available to us. Accordingly, 
we do not designate critical habitat in areas outside the geographic 
area occupied by the species unless the best available scientific and 
commercial data demonstrate that those areas are essential for the 
conservation needs of the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
We may exclude areas from critical habitat designation when the 
benefits of exclusion outweigh the benefits of including the areas 
within critical habitat, provided the exclusion will not result in 
extinction of the species.
    Our Policy on Information Standards under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties 
or other entities that develop HCPs, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of listing. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by section 7(a)(2) and section 9 of the 
Act, as determined on the basis of the best available information at 
the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    Our methods for identifying the Buena Vista Lake shrew critical 
habitat included in this final designation are identical to the methods 
we used in our proposal of critical habitat for the Buena Vista Lake 
shrew, published on August 19, 2004 (69 FR 51417).
    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12, we used the best scientific and commercial data available to 
determine areas that contain the physical and biological features that 
are essential for the conservation of the shrew. This included data and 
information contained in, but not limited to, the proposed and final 
rules listing the shrew (65 FR 35033, June 1, 2000, and 67 FR 10101, 
March 6, 2002), the Recovery Plan for Upland Species of the San Joaquin 
Valley, California (Service 1998), the proposed rule designating 
critical habitat (69 FR 51417, August 19, 2004), research and survey 
observations published in peer-reviewed articles (Grinnell 1932, 1933; 
Hall 1981; Williams and Kilburn 1984; Williams 1986), habitat and 
wetland mapping and other data collected and reports submitted by 
biologists holding section 10(a)(1)(A) recovery permits, biological 
assessments provided to the Service through section 7 consultations, 
reports and documents that are on file in the Service's field office 
(Center for Conservation Biology 1990; Maldonado et al. 1998; ESRP 
1999a; ESRP 2004), personal discussions with experts inside and outside 
of the Service with extensive knowledge of the shrew and habitat in the 
area, and information received during the two open comment periods. We 
also conducted site visits and visual habitat evaluation in areas known 
to have shrews, and in areas within the historical ranges that had 
potential to contain shrew habitat.
    The critical habitat units were delineated by creating rough areas 
for each unit by screen-digitizing polygons (map units) using ArcView 
(Environmental Systems Research

[[Page 3449]]

Institute, Inc.), a computer Geographic Information System (GIS) 
program. The polygons were created by overlaying current and historic 
species location points (CNDDB 2004), and mapped wetland habitats 
(California Department of Water Resources 1998) or other wetland 
location information, onto SPOT imagery (satellite aerial photography) 
(CNES/SPOT Image Corporation 1993-2000) and Digital Ortho-rectified 
Quarter Quadrangles (DOQQs) (USGS 1993-1998) for areas containing the 
shrew. We utilized GIS data derived from a variety of Federal, State, 
and local agencies, and from private organizations and individuals. To 
identify where essential habitat for the shrew occurs, we evaluated the 
GIS habitat mapping and species occurrence information from the CNDDB 
(2004). We presumed occurrences identified in CNDDB to be extant unless 
there was affirmative documentation that an occurrence had been 
extirpated. We also relied on unpublished species occurrence data 
contained within our files, including section 10(a)(1)(A) reports and 
biological assessments.
    These polygons of identified habitat were further evaluated. 
Several factors were used to delineate the proposed critical habitat 
units from these land areas. We reviewed any information in the 
Recovery Plan for Upland Species of the San Joaquin Valley, California 
(Service 1998), or other peer-reviewed literature or expert opinion for 
the shrew to determine if the designated areas would meet the species' 
needs for conservation and whether these areas contained the 
appropriate primary constituent elements for the species. Further 
refinement was done by using satellite imagery, watershed boundaries, 
soil type coverages, vegetation/land cover data, and agricultural/urban 
land use data to eliminate areas that did not contain the appropriate 
vegetation or associated native plant species, as well as features such 
as cultivated agriculture fields, development, and other areas that are 
unlikely to contribute to the conservation of the shrew.
    As stated earlier, the shrew occurs in habitats in and adjacent to 
riparian and wetland edge areas with a vegetation structure that 
provides cover, allowing for moist soils that support a diversity of 
terrestrial and aquatic insect prey. We have determined that one of the 
five known locations of shrew should be designated as critical habitat 
(CNDDB 2004). This area contains wetland and/or riparian habitat, is 
located within the historical range of the shrew, and is occupied by 
the shrew. The specific essential habitat is explained in greater 
detail below in the Unit Descriptions section.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements (PCEs)) 
that are essential to the conservation of the species, and that may 
require special management considerations and protection. These 
include, but are not limited to: space for individual and population 
growth and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, and rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The specific primary constituent elements required for the shrew 
are derived from the biological needs of the shrew as described in the 
Background section of this proposal and in the final listing rule.

Space for Individual and Population Growth and Normal Behavior

    As described previously, shrew were recorded in association with 
perennial and intermittent wetland habitats along riparian corridors, 
marsh edges, and other palustrine (marsh type) habitats in the southern 
San Joaquin Valley of California. The shrew presumably occurred in the 
moist habitat surrounding wetland margins in the Kern, Buena Vista, 
Goose and Tulare Lakes basins on the valley floor below 350 ft (107 m) 
elevation (Grinnell 1932, 1933; Hall 1981; Williams and Kilburn 1984; 
Williams 1986; Service 1998). With the draining and conversion of the 
majority of the shrew's natural habitat from wetland to agriculture and 
the channelization of riparian corridors for water conveyance 
structures, the vegetative communities associated with the shrew have 
become degraded and non-native species have replaced the plant species 
associated with the shrew (Grinnell 1932; Mercer and Morgan 1991; 
Griggs 1992; Service 1998). Current survey information has identified 
five areas where the shrew has been found (CNDDB 2004; Maldonado 1992; 
Williams and Harpster 2001; ESRP 2004). The five locations are the 
former Kern Lake Preserve (Kern Preserve) on the old Kern Lake bed, the 
Kern Fan recharge area, Cole Levee Ecological Preserve (Cole Levee), 
the Kern National Wildlife Refuge (Kern NWR), and the Goose Lake slough 
bottoms. The vegetative communities associated with these areas and 
with shrew occupancy are characterized by the presence of but are not 
limited to: Fremont cottonwood (Populus fremontii), willows (Salix 
spp.), glasswort (Salicornia sp.), wild-rye grass (Elymus sp.), rush 
grass (Juncus sp.), and other emergent vegetation (Service 1998). 
Maldonado (1992) found shrews in areas of moist ground covered with 
leaf litter near other low-lying vegetation, branches, tree roots, and 
fallen logs, or in areas with cool, moist soil beneath dense mats of 
vegetation kept moist by its proximity to the water line. He described 
specific habitat features that would make them suitable for the shrew: 
(1) Dense vegetative cover; (2) a thick, three-dimensional understory 
layer of vegetation and felled logs, branches, and detritus/debris; (3) 
heavy understory of leaf litter with duff overlying soils; (4) 
proximity to suitable moisture; and (5) a year-round supply of 
invertebrate prey. Williams and Harpster (2001) concluded that the best 
habitat for the shrew was found in ``riparian and wetland communities 
with an abundance of leaf litter (humus) or dense herbaceous cover.'' 
They also determined that ``although moist soil in areas with an 
overstory of willows or cotton woods appears to be favored,'' they 
doubted that such overstory was essential. Based on changes in the 
native habitat composition and structure and information on habitat 
descriptions of where the shrew have been found, we include the moist 
vegetative communities surrounding permanent and semipermanent wetlands 
in our description of shrew critical habitat because they are the 
habitat requirements needed by the shrew.

Food

    The specific feeding and foraging habits of the shrew are not well 
known. In general, shrews primarily feed on insects and other animals, 
mostly invertebrates (Harris 1990; Williams 1991; Maldonado 1992). Food 
probably is not cached and stored, so the shrew must forage 
periodically day and night to maintain its high metabolic rate.
    The vegetation communities described above provide a diversity of 
structural layers and plant species and likely contribute to the 
availability of prey for shrews. Therefore, conservation of the shrew 
should include consideration of the habitat needs of prey species, 
including structural and species diversity and seasonal

[[Page 3450]]

availability. Shrew habitat must provide sufficient prey base and cover 
from which to hunt in an appropriate configuration and proximity to 
nesting sites. The shrew feeds indiscriminately on available larvae and 
adults of several species of aquatic and terrestrial insects. An 
abundance of invertebrates is associated with moist habitats, such as 
wetland edges, riparian habitat, or edges of lakes, ponds, or drainages 
that possess a dense vegetative cover (Owen and Hoffmann 1983). 
Therefore, to be considered essential, critical habitat consists of a 
vegetative structure that contains suitable soil moisture capable of 
supporting a diversity of invertebrates so that there is a substantial 
food source to sustain occurrences of the shrew.

Water

    Open water does not appear to be necessary for the survival of the 
shrew. The habitat where the shrew have been found contain areas with 
both open water and mesic environments (Maldonado 1992; Williams and 
Harpster 2001). The availability of water contributes to improved 
vegetation structure and diversity which improves cover availability. 
The presence of water also attracts potential prey species improving 
prey availability.

Reproduction and Rearing of Offspring

    Little is known about the reproductive needs of the shrew. The 
breeding season begins in February or March and ends in May or June, 
but can be extended depending on habitat quality and available moisture 
(Paul Collins, Santa Barbara Museum of Natural History, in litt. 2000). 
The edges of wetland or marshy habitat allow the shrew to provide 
hospitable environments and have a larger prey base to give birth and 
raise its young. The shrew's preference for dense vegetative 
understories also provides cover from predators. Dense vegetation also 
allows for the soil moisture necessary for a consistent supply of 
terrestrial and aquatic insect prey (Kirkland 1991; Ma and Talmage 
2001; Freas 1990; Maldonado 1992; Maldonado et al. 1998).
    The areas proposed for designation as critical habitat for the 
shrew consist of occupied habitat with the primary constituent elements 
that are essential for adult and juvenile shrews to maintain and 
sustain occurrences throughout their range. The PCEs below describe the 
physical and biological features essential to shrew conservation. 
Special management, such as habitat rehabilitation efforts (e.g., 
provision of an adequate and reliable water source and restoration of 
riparian habitat), may be necessary in the unit designated.

Primary Constituents for the Buena Vista Lake Shrew

    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the shrew's primary constituent elements are:
    (i) Riparian or wetland communities supporting a complex vegetative 
structure with a thick cover of leaf litter or dense mats of low-lying 
vegetation; and
    (ii) Suitable moisture supplied by a shallow water table, 
irrigation, or proximity to permanent or semipermanent water; and
    (iii) A consistent and diverse supply of prey.
    The requisite riparian and wetland habitat is essential for the 
shrew because it provides space and cover necessary to sustain the 
entire life cycle needs of the shrew, as well as its invertebrate prey. 
The shrew is preyed upon by many large vertebrate carnivores as well as 
by avian predators. Therefore, a dense vegetative structure provides 
the cover or shelter essential for evading predators as well as serving 
as habitat for breeding and reproduction, and allows for the protection 
and rearing of offspring and the growth of adult shrews.

Criteria Used To Identify Critical Habitat

    We are designating critical habitat on lands that we have 
determined essential to the conservation of the Buena Vista Lake shrew. 
These areas have the primary constituent elements described above. 
Protecting a variety of habitats and conditions that contain the PCEs 
will allow for the conservation of the species because it will increase 
the ability of the shrew to survive stochastic environmental (e.g., 
fire), natural (e.g., predators), demographic (e.g., low recruitment), 
or genetic (e.g., inbreeding) events, therefore lowering the 
probability of extinction. Suitable habitat within the historic range 
is extremely limited and remaining habitats are vulnerable to both 
anthropogenic and natural threats because so few extant occurrences of 
the shrew exist, and the number of individuals at each location is 
estimated to be low. Also, these areas provide habitats essential for 
the maintenance and growth of self-sustaining populations and 
metapopulations (a set of local populations where typically migration 
from one local population to other areas containing suitable habitat is 
possible) of shrews throughout its range. Therefore, these areas are 
essential to the conservation of the shrew.
    We are designating critical habitat in the units that we have 
determined are essential to the conservation of the shrew, except for 
those excluded under Section 4(b)(2). In our development of critical 
habitat for the shrew, we used the following methods. The unit being 
designated has the primary constituent elements described above.
    Whenever possible, areas not containing the primary constituent 
elements, such as developed areas, were not included in the boundaries 
of critical habitat. However, we did not map critical habitat in enough 
detail to exclude all developed areas, or other areas unlikely to 
contain the primary constituent elements essential for the conservation 
of the Buena Vista Lake shrew. Areas within the boundaries of the 
mapped units, such as buildings, roads, parking lots, railroad tracks, 
canals, and other paved areas, are excluded from the designation by 
text, but these exclusions do not show on the maps because their scale 
is too small.
    In summary, we are designating one critical habitat unit within the 
known geographical area occupied by the species. The primary 
constituent elements are present and the shrew is extant in this unit. 
Additional areas outside of the geographic area currently known to be 
occupied by the shrew were evaluated to determine if they are essential 
to the conservation of the shrew and should be included in the final 
critical habitat designation. Based upon our evaluation of available 
information, which included the Recovery Plan, survey data, and 
historical records, we do not find any areas outside of the known 
geographical area occupied by the shrew to be essential to the 
conservation of the species at this time.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protections. As we undertake the process 
of designating critical habitat for a species, we first evaluate lands 
defined by those physical and biological features essential to the 
conservation of the species for inclusion in the designation pursuant 
to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined 
by those features to assess whether they may require special management 
considerations or protection.
    The majority of locations supporting the shrew are on private land, 
and are

[[Page 3451]]

subject to a change in the water supply, which maintains the current 
habitat. Elevated concentrations of selenium also represent a serious 
environmental threat to the species (Service 2002). High levels of 
selenium have been measured in recharge and evaporation ponds adjacent 
to areas where the shrew occurs (California Department of Water 
Resources in litt. 1997). Potential dietary selenium concentrations 
from sampled aquatic insects are within ranges toxic to small mammals 
(Olson 1986) and could include, but may not be limited to, reduced 
reproductive output or premature death (Eisler 1985). The shrew also 
faces high risks of extinction from random catastrophic events (e.g., 
floods, drought, and inbreeding) (Service 1998). These threats and 
others mentioned above would render the habitat less suitable for the 
shrew, and special management may be needed to address them.
    The critical habitat unit identified in this final designation may 
require special management considerations or protection to maintain a 
functioning hydrological regime to maintain the requisite riparian and 
wetland habitat, which is essential for the shrew by providing space 
and cover necessary to sustain the entire life cycle needs of the 
shrew, as well as its invertebrate prey. This designated unit is 
threatened by activities that may result in the alteration of the 
moisture regime which would lead to reduced water quality or supply, 
loss of suitable invertebrate supply for feeding and loss of complex 
vegetative structure for cover.
    We have determined this unit may require special management or 
protection, due to the existing threats to the shrew, and because no 
long-term protection or management plan exists for this unit. Absent 
special management or protection, this unit is susceptible to existing 
threats and activities such as the ones listed in the ``Effects of 
Critical Habitat'' section, which could result in degradation and 
disappearance of the shrew populations and their habitat.

Critical Habitat Designation

    We are designating one (1) unit as critical habitat for the shrew. 
This critical habitat unit described below constitutes our best 
assessment at this time of the areas essential for the conservation of 
the shrew. The unit being designated as critical habitat for the shrew 
is the Kern Lake Preserve Unit.
    The approximate area encompassed within the critical habitat unit 
is shown in Table 2.

                      Table 2.--Final Critical Habitat Units for the Buena Vista Lake Shrew
----------------------------------------------------------------------------------------------------------------
                                                                 Federal    State     Local    Private    Total
                                                               -------------------- agencies -------------------
                             Unit                                                  ----------
                                                                 ac   ha   ac   ha   ac   ha   ac   ha   ac   ha
----------------------------------------------------------------------------------------------------------------
1. Kern Lake Preserve.........................................  ...  ...  ...  ...  ...  ...   84   34   84   34
                                                               ------
    Grand Total...............................................    0    0    0    0    0    0   84   34   84   34
----------------------------------------------------------------------------------------------------------------

    The areas essential for the shrew include an area within the 
species' range in California. Below is a brief description of the unit 
and the reasons why it is essential for the conservation of the shrew.

Unit 1: Kern Lake Preserve Unit

    Modifications were made to this unit which resulted in the 
exclusion of a canal and the canal levee banks from the designation. 
This exclusion resulted in the reduction of critical habitat 
designation from 90 ac (36 ha) to 84 ac (34 ha).
    The Kern Lake Unit is approximately 84 acres (34 ha) and is found 
in the southern portion of the San Joaquin Valley in southwestern Kern 
County, approximately 16 miles south of Bakersfield. This unit lies 
between Hwy 99 and Interstate 5, south of Herring Road near the New Rim 
Ditch. This unit is essential to the conservation of the species 
because it represents one of five remaining areas known to support an 
extant population of the shrew that also contains the PCEs. The Kern 
Lake area was formerly managed by the Nature Conservancy for the 
Boswell Corporation, and was once thought to contain the last remaining 
population of the shrew. This area does not have a conservation 
easement and is managed by the landowners. We are unaware of any plans 
to develop this site.
    The Kern Lake Unit is situated at the edge of the historic Kern 
Lake. Since the advent of reclamation and development, the surrounding 
lands have seen intensive cattle and sheep ranching and, more recently, 
cotton and alfalfa farming. While Kern Lake is now only a dry lake bed, 
the unit's ``Gator Pond'' site and wet alkali meadows stand as unique 
reminders of their biological heritage.
    A portion of the runoff from the surrounding hills travels through 
underground aquifers, surfacing as artesian springs at Gator Pond. The 
heavy clay soils support a distinctive assemblage of native species. An 
island of native vegetation situated among a sea of cotton fields, this 
Unit contains three ecologically significant natural communities: 
freshwater marsh, alkali meadow, and iodine bush scrub. Gator Pond, in 
the sanctuary's eastern quarter, lies near the shoreline of the 
historic Kern Lake.
    Shrews were discovered at the Kern Lake Unit in 1986 near a 
community of saltbushes and saltgrass. In 1988 and 1989, 25 shrews were 
captured in low-lying, riparian and/or wetland habitats with an 
overstory of cottonwoods and willows, abundant ground litter, and moist 
soil (Center for Conservation Biology 1990).
    The Kern Lake Unit may require special management considerations or 
protection to maintain a functioning hydrological regime to maintain 
the requisite riparian and wetland habitat, which is essential for the 
shrew by providing space and cover necessary to sustain the entire life 
cycle needs of the shrew, as well as its invertebrate prey. This 
designated unit is threatened by activities that may result in the 
alteration of the moisture regime which would lead to reduced water 
quality or supply, loss of suitable invertebrate supply for feeding and 
loss of complex vegetative structure for cover. Furthermore, no long-
term protection or management plan exists for this unit.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to

[[Page 3452]]

any species that is proposed or listed as endangered or threatened and 
with respect to its critical habitat, if any is proposed or designated. 
Regulations implementing this interagency cooperation provision of the 
Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act 
requires Federal agencies to confer with us on any action that is 
likely to jeopardize the continued existence of a proposed species or 
result in destruction or adverse modification of proposed critical 
habitat. Conference reports provide conservation recommendations to 
assist the agency in eliminating conflicts that may be caused by the 
proposed action. The conservation recommendations in a conference 
report are advisory. If a species is listed or critical habitat is 
designated, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
(action agency) must enter into consultation with us. Through this 
consultation, the action agency ensures that the permitted actions do 
not destroy or adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
an opinion that is prepared according to 50 CFR 402.14, if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the shrew or its 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or 
some other Federal action, including funding (e.g., Federal Highway 
Administration or Federal Emergency Management Agency funding), will 
also continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non-Federal and private lands that are not federally funded, 
authorized, or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat to the shrew. We note that such activities may also jeopardize 
the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat to the listed species.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
include, but are not limited to:
    (1) Actions that would affect riparian or wetland areas by any 
Federal Agency. Such activities could include, but are not limited to, 
flood control or changes in water banking activities. These activities 
could eliminate or reduce the habitat necessary for the reproduction, 
sheltering, or growth of Buena Vista Lake shrews.
    (2) Actions that would affect the regulation of water flows by any 
Federal agency. Such activities could include, but are not limited to, 
damming, diversion, and channelization. These activities could 
eliminate or reduce the habitat necessary for the reproduction, 
sheltering or growth of Buena Vista Lake shrews.
    (3) Actions that would involve regulations funded or permitted by 
the Federal Highway Administration. (We note that the Federal Highway 
Administration does not fund the routine operations and maintenance of 
the State highway system.). Such activities could include, but are not 
limited to, new road construction and right-of-way designation. These 
activities could eliminate or reduce riparian or wetland habitat along 
river crossings necessary for reproduction, sheltering or growth of 
Buena Vista Lake shrews.
    (4) Actions that would involve regulation of airport improvement 
activities by the Federal Aviation Administration. Such activities 
could include, but are not limited to, the creation or expansion of 
airport facilities. These activities could eliminate or reduce riparian 
or wetland habitat necessary for the reproduction, sheltering, 
foraging, or growth of Buena Vista Lake shrews.
    (5) Actions that would involve licensing of construction of 
communication sites by the Federal Communications Commission. Such 
activities could include, but are not limited to, the installation of 
new radio equipment and facilities. These activities could eliminate or 
reduce the habitat necessary for the reproduction, sheltering, 
foraging, or growth of Buena Vista Lake shrews.
    (6) Actions that would involve funding of activities by the U.S.

[[Page 3453]]

Environmental Protection Agency, Department of Energy, Federal 
Emergency Management Agency, Federal Highway Administration, or any 
other Federal agency. Such activities could include, but are not 
limited to, activities associated with the cleaning up of Superfund 
sites, erosion control activities, and flood control activities. These 
activities could eliminate or reduce upland and/or aquatic habitat for 
Buena Vista Lake shrews.
    (7) Actions that would affect waters of the United States by the 
Army Corps under section 404 of the Clean Water Act. Such activities 
could include, but are not limited to, placement of fill into wetlands. 
These activities could eliminate or reduce the habitat necessary for 
the reproduction, feeding, or growth of Buena Vista Lake shrews.
    All lands within this designation as critical habitat are within 
the historical geographic area occupied by the species, and are likely 
to be used by the shrew whether for foraging, breeding, growth of 
juveniles, dispersal, migration, genetic exchange, or sheltering. We 
consider all lands included in this designation to be essential to the 
survival of the species. Federal agencies already consult with us on 
activities in areas currently occupied by the species, and also one 
whether the species may be affected by the action, to ensure that their 
actions do not jeopardize the continued existence of the species. 
Therefore, we believe that the designation of critical habitat is not 
likely to result in a significant regulatory burden above that already 
in place due to the presence of the listed species. Few additional 
consultations are likely to be conducted due to the designation of 
critical habitat.

Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species and (ii) which may require special 
management considerations or protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential for the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species that do not require special management or 
protection also are not, by definition, critical habitat. To determine 
whether an area requires special management, we first determine if the 
essential features located there generally require special management 
to address applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule or adequate funding for 
implementing the management plan); and (3) the plan provides assurances 
that the conservation strategies and measures will be effective (i.e., 
it identifies biological goals, has provisions for reporting progress, 
and is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data after taking into consideration the economic impact, 
the effect on national security, and any other relevant impact of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined, following an 
analysis, that the benefits of such exclusion outweigh the benefits of 
specifying a particular area as critical habitat, unless the failure to 
designate such area as critical habitat will result in the extinction 
of the species.
    In our critical habitat designations, we use both the provisions 
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those 
specific areas that we are considering proposing designating as 
critical habitat as well as for those areas that are formally proposed 
for designation as critical habitat. Lands we have found do not meet 
the definition of critical habitat under section 3(5)(A) or have 
excluded pursuant to section 4(b)(2) include those covered by the 
following types of plans if they provide assurances that the 
conservation measures they outline will be implemented and effective: 
(1) Legally operative HCPs that cover the species, (2) draft HCPs that 
cover the species and have undergone public review and comment (i.e., 
pending HCPs), (3) Tribal conservation plans that cover the species, 
(4) State conservation plans that cover the species, and (5) National 
Wildlife Refuge System Comprehensive Conservation Plans.

Relationship of Critical Habitat to the Kern National Wildlife Refuge 
Unit

    We are excluding the Kern National Wildlife Refuge.
    The Kern National Wildlife Refuge has an approved and signed 
Comprehensive Conservation Plan (CCP) (Service 2004a) that provides for 
the protection and management of all trust resources, including 
federally listed species and sensitive natural habitats. One goal of 
the CCP for the Kern National Wildlife Refuge is to ``restore and 
maintain representative examples of Tulare Basin riparian and saltbush 
scrub habitats on Kern Refuge.'' To reach this goal, the approved CCP 
provides for a water source to sustain riparian vegetation and remnant 
sloughs that support the Buena Vista Lake shrew through the flooding 
and managing of riparian areas in the fall, winter, and early spring, 
as well as irrigating trees in riparian areas during the summer months. 
As part of the approved CCP, an additional 15 acres of riparian 
vegetation would be planted and maintained to provide habitat for the 
shrew. The plan also calls for the eradication of salt cedar from the 
riparian areas and restoration of riparian areas through planting of 
riparian trees, shrubs, and forbs native to riparian forests in the 
area. This plan has already undergone a Section 7 consultation that has 
evaluated the plan for consistency with the conservation needs of the 
species (Service 2004b). Funding for the implementation of the CCP 
comes from the Kern Refuge Complex's annual operation budget. 
Management items that benefit the shrew will be accomplished by 
existing staff and existing annual budget.
    The Refuge has completed a Comprehensive Conservation Plan (CCP) 
that addresses the shrew, the CCP has undergone section 7 review, and 
it clearly provides a conservation benefit to the species. The Service 
has a statutory mandate to manage the refuge for the conservation of 
listed species, and the CCP provides a detailed plan of how it will do 
so. The Refuge accordingly does not meet the definition of critical 
habitat under section 3(5)(A) of the Act because management plans 
already in place provide for the conservation of the shrew, and no 
special management or protection will be required.

[[Page 3454]]

Relationship of Critical Habitat to the Goose Lake Project

    Section 4(b)(2) of the Act requires us to consider other relevant 
impacts, in addition to economic impacts, of designating critical 
habitat. Section 7 of the Act authorizes us to issue permits for the 
take of listed wildlife species incidental to otherwise lawful 
activities. An incidental take permit application must be supported by 
a Biological Assessment that identifies conservation measures that the 
permittee agrees to implement for the species to minimize and mitigate 
the impacts of the permitted incidental take.
    One proposed critical habitat unit (Goose Lake Unit) warrants 
exclusion from the final designation of critical habitat under Section 
4(b)(2) of the Act based on the special management considerations and 
protections afforded the Buena Vista Lake shrew habitat through the 
implementation of a Biological Opinion developed through a Section 7 
consultation on a wetlands restoration and enhancement project funded 
through the North American Wetlands Conservation Act (NAWCA) in the 
Goose Lake bottoms. We believe the benefits excluding this wetlands 
restoration and enhancement project from the critical habitat 
designations will outweigh the benefits of including them. The 
following represents our rationale for excluding the Goose Lake Unit 
for Buena Vista Lake shrew from the final designated critical habitat.

(1) Benefits of Inclusion

    Designation of critical habitat provides important information on 
those habitats and their primary constituent elements that are 
essential to the conservation of the species. This information is 
particularly important to any Federal agency, State, county, local 
jurisdiction, conservation organization, or private landowner that may 
be evaluating adverse actions or implementing conservation measures 
that involve those habitats. The benefit of a critical habitat 
designation would ensure that any actions authorized, funded, or 
carried out by a Federal agency would not likely destroy or adversely 
modify any critical habitat. Without critical habitat, some site-
specific projects might not trigger consultation requirements under the 
Act in areas where species are not currently present; in contrast, 
Federal actions in areas occupied by listed species would still require 
consultation under Section 7 of the Act. We consider all habitats 
within this designation to be occupied. Therefore, we anticipate little 
additional regulatory benefit from including these lands in critical 
habitat beyond what is already provided by the existing Section 7 nexus 
for habitat areas occupied by the listed extant species.
    Where conservation measures are in place, our experience indicates 
that this benefit is small or nonexistent. The benefits of excluding 
projects with an approved biological opinion normally outweigh the 
benefits of inclusion. The principal benefit of any designated critical 
habitat is that federally funded or authorized activities in such 
habitat that may affect the habitat require consultation under Section 
7 of the Act. Such consultation would ensure that adequate protection 
is provided to avoid adverse modification of critical habitat. We have 
found that if a project has completed its Section 7 consultation then 
the benefit of excluding an area from critical habitat can be greater 
than not designating the area. A Biological Opinion was developed 
through a Section 7 consultation on a wetlands restoration and 
enhancement project that includes areas in the Goose Lake Unit. In the 
Biological Opinion, we determined that the project would ensure the 
long-term survival of the covered species in the plan area, including 
the shrew. By implementing the Biological Opinion, this project 
includes management measures and protections for conservation of lands 
designed to protect, restore, and enhance their value as habitat for 
the Buena Vista Lake shrew. The project is funded through the NAWCA, 
which mandates a management agreement for the project.
    Another possible benefit to including these lands is that the 
designation of critical habitat can serve to educate landowners and the 
public regarding the potential conservation values of an area. This may 
focus and contribute to conservation efforts of other parties by 
clearly delineating areas of high conservation value for certain 
species. However, we believe that this education benefit has largely 
been achieved. The additional educational benefits, which might arise 
from critical habitat designation, are largely accomplished through the 
proposed rule and request for public comment that accompanied the 
development of this regulation. We have accordingly determined that the 
benefits of designating critical habitat on this property covered by 
the described conservation measures above are small.

(2) Benefits of Exclusion

    The Service believes that Buena Vista Lake shrews within the 
properties with conservation strategies will benefit substantially from 
landowner voluntary management actions due to a reduction in 
competition with non-native predators, a reduction in risk of 
chemically altered aquatic habitats, a reduction in risk of loss of 
aquatic and upland habitat, and the enhancement and creation of aquatic 
habitat. The conservation benefits of critical habitat are primarily 
regulatory or prohibitive in nature. Where consistent with the 
discretion provided by the Act, the Service believes it is necessary to 
implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove or 
reduce disincentives to conservation. Thus, we believe it is essential 
for the recovery of the Buena Vista Lake shrew to build on continued 
conservation activities such as these with a proven partner, and to 
provide positive incentives for other private landowners who might be 
considering implementing voluntary conservation activities but have 
concerns about incurring incidental regulatory or economic impacts.
    While the consultation requirement associated with critical habitat 
on the Goose Lake Unit would add little benefit, it would require the 
use of resources to ensure regulatory compliance that could otherwise 
be used for on the ground management of the targeted listed or 
sensitive species. The Goose Lake Unit is currently protected under the 
Conservation Measures outlined for long-term management in a Section 7 
Biological Opinion that was signed for the project in November 2004. 
The project is funded by NAWCA, which provides assurances for a 25-year 
long-term agreement. Through this NAWCA project and Section 7 
consultation, Goose Lake project will enhance and restore wetlands and 
will be managed in this manner for the 25-year term of the project. The 
conservation measures outlined in the biological opinion will protect 
the shrew during construction and maintenance of the project and the 
wetlands restored and enhanced by the project will provide essential 
habitat for the shrew.

The Benefits of Exclusion Outweigh the Benefits of Inclusion

    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act and the Federal 
District Court decision concerning critical habitat (Center for 
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan. 
13, 2003), we have determined that the benefits of excluding the 
Gooselake Holding Company property in Unit 2 as critical

[[Page 3455]]

habitat outweigh the benefits of including it as critical habitat for 
the Buena Vista Lake shrew.
    This conclusion is based on the following factors:
    (1) The Gooselake Holding Company property is currently operating 
under a Section 7 biological opinion in cooperation with the Service 
and Ducks Unlimited to implement conservation measures and achieve 
important conservation goals through the restoration and enhancement of 
important riparian and wetland habitat for the Buena Vista Lake shrew.
    (2) Given the current conservation strategies created and 
implemented by the Gooselake Holding Company, the Service believes the 
additional regulatory and educational benefits of including these lands 
as critical habitat are relatively small. The designation of critical 
habitat can serve to educate the general public as well as conservation 
organizations regarding the potential conservation value of an area, 
but this goal is already being accomplished through the identification 
of this area in the management plans described above. Likewise, there 
will be little additional Federal regulatory benefit to the species 
because (a) this unit, if included, would likely not be adversely 
affected to any significant degree by Federal activities requiring 
section 7 consultation, and (b) all units are already occupied by the 
Buena Vista Lake shrew, and a section 7 nexus already exists. The 
Service is unable to identify any other potential benefits associated 
with critical habitat for these properties.
    (3) Excluding these privately owned lands with conservation 
strategies from critical habitat may, by way of example, provide 
positive social, legal, and economic incentives to other non-Federal 
landowners who own lands that could contribute to listed species 
recovery if voluntary conservation measures on these lands are 
implemented.
    In conclusion, we find that the exclusion of critical habitat on 
Gooselake Holding Company would most likely have a net positive 
conservation effect on the recovery and conservation of the Buena Vista 
Lake shrew when compared to the positive conservation effects of a 
critical habitat designation. As described above, the overall benefits 
to these species of a critical habitat designation for these properties 
are relatively small. In contrast, we believe that this exclusion will 
enhance our existing partnership with these landowners, and it will set 
a positive example and provide positive incentives to other non-Federal 
landowners who may be considering implementing voluntary conservation 
activities on their lands. We conclude there is a higher likelihood of 
beneficial conservation activities occurring in these and other areas 
without designated critical habitat than there would be with designated 
critical habitat on these properties.

Relationship of Critical Habitat to the Kern Fan Recharge Area Unit

    Section 4(b)(2) of the Act requires us to consider other relevant 
impacts, in addition to economic impacts, of designating critical 
habitat. One proposed critical habitat unit (Kern Fan Recharge Area 
Unit) warrants exclusion from the final designation of critical habitat 
under Section 4(b)(2) of the Act based on the special management 
considerations and protections afforded the Buena Vista Lake shrew 
habitat through a Management Plan for the Kern Fan Recharge Area 
developed the City of Bakersfield. We have determined that the benefits 
of excluding the Kern Fan Unit from the critical habitat designation 
will outweigh the benefits of including it in the final designation. 
The following represents our rationale for excluding the Kern Fan 
Recharge Area Unit for Buena Vista Lake shrew from the final designated 
critical habitat.
    Portions of the recharge area are flooded sporadically, forming 
fragmented wetland communities throughout the area. Narrow strips of 
riparian communities exist on both sides of the Kern River. The plant 
communities of the Kern Fan Water Recharge Area include a mixture of 
Valley saltbush scrub, Great Valley mesquite shrub, and some remnant 
riparian areas. Remnant riparian areas are found throughout the water 
bank area, but are mainly located near the main channel of the Kern 
River. The Buena Vista Lake shrew has been documented on the Kern Fan 
Water Recharge Unit. This Unit is currently protected under a Service-
approved Management Plan developed by the City of Bakersfield that 
includes yearly monitoring and Service approval of any changes.

(1) Benefits of Inclusion

    Designation of critical habitat provides important information on 
those habitats and their primary constituent elements that are 
essential to the conservation of the species. This information is 
particularly important to any Federal agency, State, county, local 
jurisdiction, conservation organization, or private landowner that may 
be evaluating adverse actions or implementing conservation measures 
that involve those habitats. The benefit of a critical habitat 
designation would ensure that any actions authorized, funded, or 
carried out by a Federal agency would not likely destroy or adversely 
modify any critical habitat. Without critical habitat, some site-
specific projects might not trigger consultation requirements under the 
Act in areas where species are not currently present; in contrast, 
Federal actions in areas occupied by listed species would still require 
consultation under section 7 of the Act. We consider all habitats 
within this designation to be occupied. Therefore, we anticipate little 
additional regulatory benefit from including these lands in critical 
habitat beyond what is already provided by the existing section 7 nexus 
for habitat areas occupied by the listed extant species.
    The benefits of including areas with approved management plans in 
critical habitat are normally small. The principal benefit of any 
designated critical habitat is that federally funded or authorized 
activities in such habitat that may affect it require consultation 
under section 7 of the Act. Such consultation would ensure that 
adequate protection is provided to avoid adverse modification of 
critical habitat. Where conservation measures are in place, our 
experience indicates that this benefit is small or nonexistent. 
Currently approved management plans are already designed to ensure the 
long-term survival of covered species within the plan area. Management 
plans include management measures and protections for conservation 
lands designed to protect, restore, and enhance their value as habitat 
for the Buena Vista Lake shrew.
    Another possible benefit to including these lands is that the 
designation of critical habitat can serve to educate landowners and the 
public regarding the potential conservation values of an area. This may 
focus and contribute to conservation efforts of other parties by 
clearly delineating areas of high conservation value for certain 
species. However, we believe that this education benefit has largely 
been achieved. The additional educational benefits, which might arise 
from critical habitat designation, are largely accomplished through the 
proposed rule and request for public comment that accompanied the 
development of this regulation. We have accordingly determined that the 
benefits of designating critical habitat on this property covered by 
the described conservation measures above are small.

[[Page 3456]]

(2) Benefits of Exclusion

    Approximately 80 percent of the occurrence records of the Buena 
Vista Lake shrew are on private lands. Proactive voluntary conservation 
efforts by private or non-Federal entities are necessary to prevent the 
extinction and promote the recovery of the Buena Vista Lake shrew in 
the Tulare Basin.
    We have determined that the Buena Vista Lake shrew within the 
properties with management plans or conservation strategies that 
protect or enhance the conservation of the species will benefit 
substantially from voluntary landowner management actions due to an 
enhancement and creation of riparian and wetland habitat and a 
reduction in risk of loss of riparian habitat. The conservation 
benefits of critical habitat are primarily regulatory or prohibitive in 
nature. Where consistent with the discretion provided by the Act, the 
Service believes it is necessary to implement policies that provide 
positive incentives to private landowners to voluntarily conserve 
natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1998). Thus, we believe it is essential 
for the recovery of the Buena Vista Lake shrew to build on continued 
conservation activities such as these with a proven partner, and to 
provide positive incentives for other private landowners who might be 
considering implementing voluntary conservation activities but have 
concerns about incurring incidental regulatory or economic impacts.
    The City of Bakersfield manages the Kern Fan Recharge Area in such 
a way as to promote the conservation of the Buena Vista Lake shrew. The 
Service-approved management plan developed by the City of Bakersfield 
includes management of the area for the benefit of the shrew. These 
activities include limiting public access to the site, cessation of 
grazing practices, protection of the site from development or 
encroachment, maintenance of the site as permanent open space that has 
been left predominantly in its natural vegetative state, and the 
spreading of flood waters which promotes the moisture regime and 
wetland and riparian vegetation determined to be essential for the 
conservation of the shrew. Annual monitoring of the site will also be 
implemented to promote adaptive management of the area for the optimal 
enhancement of wetland and riparian vegetation for the benefit of the 
shrew. Funding for the implementation of the habitat management plan is 
assured through the annual fiscal budget of the City of Bakersfield's 
Water Resource Department.

(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion

    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act and the Federal 
District Court decision concerning critical habitat (Center for 
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan. 
13, 2003), we have determined that the benefits of excluding the City 
of Bakersfield property in Unit 3 from critical habitat outweigh the 
benefits of including them as critical habitat for the Buena Vista Lake 
shrew.
    This conclusion is based on the following factors:
    (1) The City of Bakersfield property is currently operating under a 
Service-approved Management Plan to implement conservation measures and 
achieve important conservation goals through the management of water 
banking operations to achieve the optimal flooding regime for the 
enhancement of important riparian and wetland habitat for the Buena 
Vista Lake shrew.
    (2) Given the past and current conservation strategies created and 
implemented by the City of Bakersfield, the Service believes the 
additional regulatory and educational benefits of including these lands 
as critical habitat are relatively small. The Service anticipates that 
the conservation strategies will continue to be implemented in the 
future, and that the funding for these activities will continue to be 
available because the City of Bakersfield is enterprise funded and 
receives an annual budget for the operation and maintenance of the Kern 
Fan Recharge Area. The designation of critical habitat can serve to 
educate the general public as well as conservation organizations 
regarding the potential conservation value of an area, but this goal is 
already being accomplished through the identification of this area in 
the management plans described above. Likewise, there will be little 
additional Federal regulatory benefit to the species because (a) there 
is a low likelihood that these proposed critical habitat units will be 
negatively affected to any significant degree by Federal activities 
requiring section 7 consultation, and (b) all units are already 
occupied by the Buena Vista Lake shrew and a section 7 nexus already 
exists. The Service is unable to identify any other potential benefits 
associated with critical habitat for these properties.
    (3) Excluding these privately owned lands with conservation 
strategies from critical habitat may, by way of example, provide 
positive social, legal, and economic incentives to other non-Federal 
landowners who own lands that could contribute to listed species 
recovery if voluntary conservation measures on these lands are 
implemented.
    In conclusion, we find that the exclusion of critical habitat on 
the City of Bakersfield's Kern Fan Water Recharge Unit would most 
likely have a net positive conservation effect on the recovery and 
conservation of the Buena Vista Lake shrew when compared to the 
positive conservation effects of a critical habitat designation. As 
described above, the overall benefits to these species of a critical 
habitat designation for these properties are relatively small. In 
contrast, we believe that this exclusion will enhance our existing 
partnership with these landowners, and it will set a positive example 
and provide positive incentives to other non-Federal landowners who may 
be considering implementing voluntary conservation activities on their 
lands. We conclude there is a higher likelihood of beneficial 
conservation activities occurring in these and other areas without 
designated critical habitat than there would be with designated 
critical habitat on these properties.

Relationship of Critical Habitat to the Coles Levee Unit

    The Coles Levee Ecosystem Preserve has been established with a 
conservation easement that is held by the California Department of Fish 
and Game. This conservation easement establishes that this area will be 
``retained forever in a natural condition and to prevent any use of the 
property that will significantly impair or interfere with the 
conservation values of the property.'' The Conservation Easement limits 
the use of the Property to such activities as set forth and reserved in 
the easement, including those involving the conservation, protection, 
restoration and enhancement of native species and their habitat.
    We proposed as critical habitat, but have now considered for 
exclusion from the final designation, the Coles Levee Unit that is 
entirely within the Coles Levee Ecosystem Preserve.

(1) Benefits of Inclusion

    There is minimal benefit from designating critical habitat for the 
Buena Vista Lake shrew within the Coles Levee Ecosystem Preserve 
because these lands are already managed for the conservation of 
wildlife. One possible benefit of including these lands as critical 
habitat would be to educate the

[[Page 3457]]

public regarding the conservation values of these areas and the habitat 
they support. However, critical habitat designation provides little 
gain in the way of increased recognition for special habitat values on 
lands that are expressly managed to protect and enhance those values. 
Additionally, the designation of critical habitat will not have any 
appreciable effect on the development or implementation of public 
education programs in these areas.
    Another possible benefit to including these lands is that the 
designation of critical habitat can serve to educate landowners and the 
public regarding the potential conservation values of an area. This may 
focus and contribute to conservation efforts of other parties by 
clearly delineating areas of high conservation value for certain 
species. However, we believe that this education benefit has largely 
been achieved. The additional educational benefits, which might arise 
from critical habitat designation, are largely accomplished through the 
proposed rule and request for public comment that accompanied the 
development of this regulation. We have accordingly determined that the 
benefits of designating critical habitat on this property covered by 
the described conservation measures above are small.
    The designation of critical habitat would require consultation with 
us for any action undertaken, authorized, or funded by a Federal agency 
that may affect the species or its designated critical habitat. 
However, the management objects for the Coles Levee Ecosystem preserve 
already include specifically managing for targeted listed species and 
sensitive species; therefore, the benefit from additional consultation 
is likely also to be minimal.

(2) Benefits of Exclusion

    While the consultation requirement associated with critical habitat 
on the Coles Levee Ecosystem Preserve would add little benefit, it 
would require the use of resources to ensure regulatory compliance that 
could otherwise be used for on-the-ground management of the targeted 
listed or sensitive species. The Coles Levee Ecosystem Preserve is 
currently managed by the California Department of Fish and Game through 
a conservation easement and management agreement that is funded in 
perpetuity. Through this management, the entire Preserve is fenced to 
prevent trespass grazing or other unauthorized uses of the area. There 
is additional fencing around the pond area that provides for shrew 
habitat. As part of the management, ARCO will provide for a continuous 
water source to the pond to sustain habitat beneficial to the shrew. 
The management agreement for the Preserve also includes impact and 
avoidance measures for any construction that will occur in the area and 
provides for the monitoring of the Preserve on a yearly basis for 
plants and animals. The agreement also stipulates a mitigation 
requirement at a 4 to 1 ratio for replacement of any habitat that is 
impacted. Therefore, the benefits of exclusion include relieving 
additional regulatory burden that might be imposed by the critical 
habitat, which could divert resources from substantive resource 
protection to procedural regulatory efforts.

(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion

    We believe that the potential disincentives to the State's active 
management of their trust resources that are provided by designation of 
critical habitat are appreciably greater than the benefits to be 
derived from such designation. This is a result of the fact that these 
lands are already managed to protect and enhance unique and important 
natural resource values. We therefore conclude that the benefits of 
excluding the Coles Levee Ecosystem Preserve lands from the final 
critical habitat designation outweigh the benefits of including them. 
Such exclusion will not increase the likelihood that management 
activities would be proposed that would appreciably diminish the value 
of the habitat for conservation of the species. Further, such exclusion 
will not result in the extinction of the species. We therefore conclude 
that the benefits of excluding Coles Levee Ecosystem Preserve lands 
from the final critical habitat designation outweigh the benefits of 
including them.
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act and the Federal 
District Court decision concerning critical habitat (Center for 
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan. 
13, 2003), we have determined that the benefits of excluding the Coles 
Levee Ecosystem Preserve property in Unit 4 as critical habitat 
outweigh the benefits of including them as critical habitat for the 
Buena Vista Lake shrew.
Economic Analysis
    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as part of 
critical habitat. We cannot exclude such areas from critical habitat if 
such exclusion would result in the extinction of the species.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on November 30, 2004. We accepted 
comments on the draft analysis until December 15, 2004.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the Buena Vista Lake shrew. This information is intended to 
assist the Secretary in making decisions about whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    Our proposed critical habitat rule pertained to the Buena Vista 
Lake shrew. Therefore, our economic analysis evaluated the potential 
future effects associated with the listing of this species as 
endangered under the Act, as well as any potential effect of the 
critical habitat designation above and beyond those regulatory and 
economic impacts associated with listing.

[[Page 3458]]

    We received nine comment letters on the draft economic analysis of 
the proposed designation. Following the close of the comment period, we 
considered comments, prepared responses to comments, and prepared a 
summary of revisions to economic issues based on final critical habitat 
designation (see Responses to Comments section). The economic analysis 
indicates that is rule will not have an annual economic effect of $100 
million or more. Based on our economic analysis, the annualized 
economic effects of this designation are estimated to be $8,752 to 
$12,932, because the economic analysis is for Kern Lake only, as all 
the other units were excluded from designation. We have excluded 4,173 
ac (1,689 ha) of privately owned lands (and 387 ac (157 ha) of federal 
land) analyzed in the draft economic analysis based on non-economic 
considerations.
    A copy of the final economic analysis and a description of the 
exclusion process with supporting documents may be obtained from the 
Sacramento Fish and Wildlife Office directly (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action; the draft economic 
analysis was made available for public comment, and we considered those 
comments during the preparation of this rule. We used this analysis to 
meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific area as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species.
    The economic analysis indicates that this rule will not have an 
annual economic effect of $100 million or more.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for the shrew is not a 
significant regulatory action under Executive Order 12866, and it is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. (At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) Due to current public knowledge of the species' protection, the 
prohibition against take of the species both within and outside of the 
designated areas, and the fact that critical habitat provides no 
incremental restrictions, we do not anticipate that this rule will 
significantly or uniquely affect small governments. As such, Small 
Government Agency Plan is not

[[Page 3459]]

required. We will, however, further evaluate this issue as we conduct 
our economic analysis and revise this assessment if appropriate.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Buena Vista Lake shrew in a 
takings implication assessment, which indicates that this rule would 
not pose significant takings implications. The takings implications 
assessment concludes that this final designation of critical habitat 
for the shrew does not pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI policy, we requested information from, 
and coordinated development of, this proposed critical habitat 
designation with appropriate State resource agencies in California. The 
designation of critical habitat in areas currently occupied by the 
shrew imposes no additional restrictions to those currently in place 
and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas essential to the conservation of 
the species are more clearly defined, and the primary constituent 
elements of the habitat necessary to the survival of the species are 
specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Endangered Species Act. This 
proposed rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the shrew.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands essential for the conservation of the shrew. 
Therefore, critical habitat for the shrew has not been designated on 
Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Sacramento Fish and 
Wildlife Office (see ADDRESSES section).

Author(s)

    The primary author of this package is the Sacramento Fish and 
Wildlife Office staff.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Regulation Promulgation

0
For the reasons outlined in the preamble, we amend part 17, subchapter 
B of chapter I, title 50 of the Code of Federal Regulations, as 
follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. In Sec.  17.11(h), revise the entry for ``Shrew, Buena Vista Lake'' 
under ``MAMMALS'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                                                   Special
                                                         Historic range       endangered or        Status     When listed  Critical habitat     rules
           Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Shrew, Buena Vista Lake           Sorex ornatus        U.S.A. (CA)         Entire............  E                      725  17.95(a)                   NA
                                   relictus.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 3460]]

* * * * *

0
3. Amend Sec.  17.95(a) by adding an entry for ``Buena Vista Lake 
shrew'' in the same alphabetical order as this species appears in the 
table in Sec.  17.11, to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Buena Vista Lake Shrew (Sorex ornatus relictus)
    (1) Critical habitat units are depicted for Kern County, 
California, on the maps below.
    (2) The primary constituent elements of critical habitat for the 
Buena Vista Lake shrew are the habitat components that provide:
    (i) Riparian or wetland communities supporting a complex vegetative 
structure with a thick cover of leaf litter or dense mats of low-lying 
vegetation; and
    (ii) Suitable moisture supplied by a shallow water table, 
irrigation, or proximity to permanent or semipermanent water; and
    (iii) A consistent and diverse supply of prey.
    (3) Critical habitat does not include existing features and 
structures, such as buildings, aqueducts, airports, roads, and other 
developed areas not containing one or more of the primary constituent 
elements.
    (4) Data layers defining map units were created on a base of USGS 
7.5' quadrangles, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) coordinates.
    (5) Unit 1: Kern Lake, Kern County, California.
    (i) From USGS 1:24,000 quadrangle map Coal Oil Canyon, California, 
land bounded by the following UTM 11 NAD 27 coordinates (E,N):
    (ii) Western Polygon: 312678, 3887297; 313415, 3887298; 313415, 
3887297; 313439, 3887297; 313437, 3887127; 313415, 3887121; 313415, 
3887121; 313369, 3887111; 313304, 3887106; 313237, 3887111; 313199, 
3887141; 313174, 3887156; 313172, 3887156; 313169, 3887157; 313156, 
3887157; 313139, 3887155; 313124, 3887148; 313109, 3887135; 313096, 
3887121; 313081, 3887105; 313064, 3887087; 313051, 3887072; 313042, 
3887062; 313035, 3887052; 313031, 3887048; 313002, 3887026; 313001, 
3887026; 313000, 3887025; 312990, 3887023; 312979, 3887026; 312963, 
3887031; 312958, 3887033; 312947, 3887036; 312933, 3887044; 312921, 
3887050; 312911, 3887052; 312900, 3887052; 312896, 3887052; returning 
to 312678, 3887297;
    (iii) Eastern Polygon: 313471, 3887135; 313472, 3887797; 313823, 
3887791; 313823, 3887314; 313786, 3887267; 313696, 3887224; 313618, 
3887189; 313491, 3887139; returning to 313471, 3887135.
    (iv) Note: Map follows:

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[[Page 3461]]

[GRAPHIC] [TIFF OMITTED] TR24JA05.000

* * * * *

    Dated: January 12, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-982 Filed 1-13-05; 12:49 pm]
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