[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Proposed Rules]
[Pages 51742-51746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17452]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT86


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Navarretia fossalis (spreading 
navarretia)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period and notice of 
availability of draft economic analysis.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the proposed designation of 
critical habitat for Navarretia fossalis, and the availability of a 
draft economic analysis of the proposed designation of critical 
habitat. We are reopening the comment period to allow all interested 
parties an opportunity to comment simultaneously on the proposed rule 
and the associated draft economic analysis. Comments previously 
submitted on this proposed rule need not be resubmitted as they have 
already been incorporated into the public record and will be fully 
considered in our final determination.

DATES: We will accept public comments and information until September 
14, 2005.

ADDRESSES: Written comments and materials may be submitted to us by any 
one of the following methods:
    1. You may submit written comments and information to Jim Bartel, 
Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, CA 92011;
    2. You may hand-deliver written comments and information to our 
Carlsbad Fish and Wildlife Office at the above address, or fax your 
comments to 760/431-9624; or
    3. You may send your comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic 
comments, see the ``Public Comments Solicited'' section. In the event 
that our internet connection is not functional, please submit your 
comments by the alternate methods mentioned above.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the above address (telephone 760/431-9440; 
facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We will accept written comments and information during this 
reopened comment period. We solicit comments on the original proposed 
critical habitat designation, published in the Federal Register on 
October 7, 2004 (69 FR 60110), and on our draft economic analysis of 
the proposed designation. We will consider information and 
recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), 
including whether the benefits of exclusion outweigh the benefits of 
specifying such area as part of the critical habitat;
    (2) Specific information on the amount and distribution of 
Navarretia fossalis and its habitat, and which habitat features and 
geographic areas essential to the conservation of this species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Information on how many of the State and local environmental 
protection measures referenced in the draft economic analysis were 
adopted largely as a result of the listing of Navarretia fossalis, and 
how many were either already in place or enacted for other reasons;
    (5) Any foreseeable economic, environmental, or other impacts 
resulting from the proposed designation or coextensively from the 
proposed listing;
    (6) Whether the draft economic analysis identifies all State and 
local costs attributable to the proposed critical habitat designation, 
and information on any costs that have been inadvertently overlooked;
    (7) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely

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regulatory changes imposed as a result of the designation of critical 
habitat;
    (8) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with land use controls that derive 
from the designation of critical habitat;
    (9) Whether the economic analysis appropriately identifies all 
costs that could result from the designation, in particular, any 
impacts on small entities or families;
    (10) Whether the designation would result in disproportionate 
economic impacts to specific areas that should be evaluated for 
possible exclusion under 4(b)(2) of the Act from the final designation;
    (11) Whether it is appropriate that the analysis does not include 
the costs of project modification that are the result of informal 
consultation only;
    (12) Whether there is information about areas that could be used as 
substitutes for the economic activities planned in critical habitat 
areas that would offset the costs and allow for the conservation of 
critical habitat areas; and
    (13) How our approach to critical habitat designation could be 
improved or modified to provide for greater public participation and 
understanding, or to assist us in accommodating public concern and 
comments.
    All previous comments and information submitted during the initial 
comment period on the proposed rule need not be resubmitted. If you 
wish to comment, you may submit your comments and materials concerning 
the draft economic analysis and the proposed rule by any one of several 
methods (see ADDRESSES section). Our final determination regarding 
designation of critical habitat for Navarretia fossalis will take into 
consideration all comments and any additional information received 
during both comment periods. On the basis of public comment on this 
analysis and on the critical habitat proposal, and on the final 
economic analysis, we may, during the development of our final 
determination, find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the Act, or are not 
appropriate for exclusion.
    Please submit electronic comments in an ASCII file and avoid the 
use of any special characters or any form of encryption. Also, please 
include ``Attn: Navarretia fossalis'' and your name and return address 
in your e-mail message regarding the Navarretia fossalis proposed rule 
or the draft economic analysis. If you do not receive a confirmation 
from the system that we have received your e-mail message, please 
submit your comments in writing using one of the alternate methods 
described in the ADDRESSES section.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address, which we will honor to the extent allowable by law. 
There also may be circumstances in which we would withhold a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comments. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposal to designate critical 
habitat, will be available for public inspection, by appointment, 
during normal business hours at the Carlsbad Fish and Wildlife Office 
at the address listed under ADDRESSES. Copies of the proposed critical 
habitat rule for Navarretia fossalis and the draft economic analysis 
are also available on the Internet at http://www.fws.gov/pacific/carlsbad/NAFO.htm. In the event that our internet connection is not 
functional, please obtain copies of documents directly from the 
Carlsbad Fish and Wildlife Office.

Background

    On October 7, 2004, we published a proposed rule in the Federal 
Register (69 FR 60110) to designate critical habitat for Navarretia 
fossalis pursuant to the Act. We proposed to designate a total of 
approximately 4,301 acres (ac) (1,741 hectares (ha)) of critical 
habitat in San Diego and Los Angeles Counties, California. The first 
comment period for the Navarretia fossalis proposed critical habitat 
rule closed on December 6, 2004. For more information on this species, 
refer to the final rule listing this species as threatened, published 
in the Federal Register on October 13, 1998 (63 FR 54975), and the 
Recovery Plan for the Vernal Pools of Southern California (Recovery 
Plan) finalized on September 3, 1998 (Service 1998).
    Critical habitat is defined in section 3 of the Act as 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 essential to the conservation of the species and 
that may require special management considerations or protection, and 
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 species. If the proposed rule is made 
final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting areas designated as critical habitat must consult with us on 
the effects of their proposed actions, pursuant to section 7(a)(2) of 
the Act.
    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat on the basis of the best scientific and commercial 
data available, after taking into consideration the economic impact, 
impact to national security, and any other relevant impacts of 
specifying any particular area as critical habitat. We have prepared a 
draft economic analysis of the October 7, 2004 (69 FR 60110), proposed 
designation of critical habitat for Navarretia fossalis.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of Navarretia fossalis, 
including costs associated with sections 4, 7, and 10 of the Act, and 
including those attributable to designating critical habitat. It 
further considers the economic effects of protective measures taken as 
a result of other Federal, State, and local laws that aid habitat 
conservation for Navarretia fossalis in habitat areas with features 
essential to the conservation of this taxon. The analysis considers 
both economic efficiency and distributional effects. In the case of 
habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (e.g., lost economic 
opportunities associated with restrictions on land use). This analysis 
also addresses how potential economic impacts are likely to be 
distributed, including an assessment of any local or regional impacts 
of habitat conservation and the potential effects of conservation 
activities on small entities and the energy industry. This information 
can be used by decision-makers to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, this analysis looks retrospectively at costs that have been 
incurred since the date the species was listed as an endangered

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species and considers those costs that may occur in the 20 years 
following the designation of critical habitat.
    This analysis determined that costs involving conservation measures 
for Navarretia fossalis would be incurred for activities involving 
residential, industrial, and commercial development; water supply; 
flood control; transportation; agriculture; the development of HCPs; 
and the management of military bases, other Federal lands, and other 
public or conservation lands.
    Pre-designation costs include those Navarretia fossalis-related 
conservation activities associated with sections 4, 7, and 10 of the 
Act that have accrued since the time that Navarretia fossalis was 
listed as threatened (63 FR 54975; October 13, 1998), but prior to the 
final designation of critical habitat. The total pre-designation costs 
are estimated at $7.9 million.
    Post-designation effects would include likely future costs 
associated with Navarretia fossalis conservation efforts in the 20-year 
period following the final designation of critical habitat in October 
2005 (effectively 2006 through 2025). If critical habitat is designated 
as proposed, total costs would be expected to range between $13.9 and 
$32.1 million over the next 20 years (an annualized cost of $1.3 to 
$3.0 million). However, if all habitat with features essential to the 
conservation of the taxon were designated critical habitat in a final 
rule, total costs would be expected to range between $48.6 and $129.0 
million over the next 20 years (an annualized cost of $4.6 to $12.2 
million).

Required Determinations--Amended

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. 
However, because the draft economic analysis indicates the potential 
economic impact associated with a designation of all habitat with 
features essential to the conservation of this species would total no 
more than $12.2 million per year, we do not anticipate that this rule 
would have an annual effect on the economy of $100 million or more or 
affect the economy in a material way. Due to the time line for 
publication in the Federal Register, the Office of Management and 
Budget (OMB) did not formally review the proposed rule.

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. In our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if this proposed designation of critical habitat for 
Navarretia fossalis would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., residential, industrial, 
and commercial development). We considered each industry or category 
individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us if their activities may affect 
designated critical habitat. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process. Our analysis determined that costs 
involving conservation measures for Navarretia fossalis would be 
incurred for activities involving residential, industrial, and 
commercial development; water supply; flood control; transportation; 
agriculture; the development of HCPs; and the management of military 
bases, other Federal lands, and other public or conservation lands.
    In our economic analysis of this proposed designation, we evaluated 
the potential economic effects on small business entities resulting 
from conservation actions related to the listing of this species and 
proposed designation of its critical habitat. Critical habitat 
designation is expected to result in additional costs to real estate 
development projects due to mitigation and other conservation costs 
that may be required. The affected land is located within Riverside, 
San Diego, and Los Angeles Counties (although the proposed designation 
is contained in only Los Angeles and San Diego Counties), and under 
private ownership by individuals who will either undertake a 
development project on their own or sell the land to developers for 
development. For businesses involved with land development, the 
relevant threshold for ``small'' is annual revenues of $6 million or 
less. The North American Industry Classification System (NAICS) code 
237210 is comprised of establishments primarily engaged in servicing 
land (e.g., excavation, installing roads and utilities) and subdividing 
real property into lots for subsequent sale to builders. Land 
subdivision precedes actual construction, and typically includes 
residential properties, but may also include industrial and commercial 
properties.

[[Page 51745]]

    It is likely that development companies, the entities directly 
impacted by the regulation, would not bear the additional cost of 
Navarretia fossalis conservation (approximately $2.3 to $6.7 million 
annualized) within the essential habitat, but pass these costs to the 
landowner through a lower land purchase price. Considering 
approximately 65 percent of the developable land within the essential 
habitat is classified as agriculture land, it is likely that farmers 
will bear some of the costs. The remaining 35 percent of the 
potentially developable land is privately owned and classified as 
vacant. To comply with the SBA recommendation that Federal agencies 
consider impacts to entities that may be indirectly affected by the 
proposed regulation, this screening level analysis presents information 
on land subdivision and farming businesses for Riverside, San Diego, 
and Los Angeles Counties as these are the businesses that would likely 
be impacted directly or indirectly by the regulation. The majority of 
the land subdivision and farming businesses within the counties are 
considered small businesses.
    It is important to note that the identity and number of land 
subdivision and farming businesses potentially impacted by the critical 
habitat designation is not known. In addition, the identity and number 
of affected businesses classified as ``small'' is also not known. 
Nevertheless, the county-level information is the smallest region for 
which data relevant to this analysis exist (see Table A-1 in the draft 
economic analysis). This clearly over-represents the potential number 
of small businesses impacted by development-related Navarretia fossalis 
conservation efforts as the privately owned developable land within the 
essential habitat (approximately 15,084 ac (6,104.5 ha)) comprises less 
than two-tenths of one percent of the land area in the counties 
(9,908,520 ac (4,009,978 ha)), and only 2,969 ac (1,201.6 ha) of this 
private land is forecasted to be developed between 2006 and 2025. The 
effects on small businesses in the land development sector would be 
concentrated in San Diego County, where more than 65 percent of the 
development is expected to take place. Within the proposed critical 
habitat designation, the effects on small businesses in the land 
development sector would be concentrated in Ramona, where approximately 
30 percent of the development in the proposed critical habitat 
designation is forecast to take place (Unit 4E).
    While the identity and number of land subdivision and farming 
business impacted by the critical habitat designation is not known, 
this analysis relates the economic impacts to real estate prices in the 
three counties that encompass the essential habitat (see Table A-2 in 
the draft economic analysis). Navarretia fossalis-related conservation 
efforts are expected to cost between $390 and $11,300 per residential 
dwelling unit developed, $0.81 to $5.90 per square foot of commercial 
property developed, and $0.53 to $3.82 per square foot of industrial 
property developed, depending on residential dwelling unit density, lot 
coverage (i.e., the percent of the lot developed), and conservation and 
mitigation activities required. The median sales price for single 
family residences in the counties ranged from $315,000 to $460,000 in 
2004, and the weighted average sales price of commercial and industrial 
properties in 2004 ranged from $130 to $293 and $50 to $180 per square 
foot, respectively. Thus, the economic impacts of Navarretia fossalis 
conservation to the development industry are equal to 0.1 percent to 
2.9 percent of the 2004 median price of a single family residence, 0.4 
percent to 4.5 percent of the 2004 weighted average sales price of 
commercial property, and 0.4 percent to 5.4 percent of the 2004 
weighted average sales price of industrial property. These costs may be 
borne by the developer or passed on to the landowner through a lower 
land purchase price.
    Based on these data, we have determined that this proposed 
designation would not result in a significant economic impact on a 
substantial number of small entities, in particular to land developers 
or farmers in Los Angeles, Riverside, or San Diego Counties. We may 
also exclude areas from the final designation if it is determined that 
these localized areas have an impact to a substantial number of 
businesses and a significant proportion of their annual revenues. As 
such, we are certifying that this proposed designation of critical 
habitat would not result in a significant economic impact on a 
substantial number of small entities. Please refer to Appendix A of our 
draft economic analysis of this designation for a more detailed 
discussion of potential economic impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is 
considered a significant regulatory action under E.O. 12866 because it 
raises novel legal and policy issues, but it is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant action, and no Statement of Energy 
Effects is required. Please refer to Appendix A of our draft economic 
analysis of this proposed designation for a more detailed discussion of 
potential effects on energy supply.

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, 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.''

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    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. Non-Federal entities that 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. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for Navarretia fossalis, there are 12 
city governments are either adjacent to or bisect the essential 
habitat: Moreno Valley (population 142,381), Perris (population 
36,189), Lakeview (population 1,619), Nuevo (population 4,135), 
Winchester (population 2,155), Hemet (population 58,812), Temecula 
(population 57,716), San Marcos (population 54,977), Carlsbad 
(population 78,247), Ramona (population 15,691), San Diego (population 
1,223,400), and Chula Vista (population 173,556). Moreno Valley, Hemet, 
Temecula, San Marcos, Carlsbad, San Diego, and Chula Vista exceed the 
criteria (service population of 50,000 or less) for small entity. 
However, there is no record of consultation between the Service and the 
five remaining ``small'' governments, the City of Perris, Lakeview, 
Nuevo, Winchester, and Ramona, since the Navarretia fossalis was listed 
in 1998. Indeed, it is not likely that these cities would be involved 
in a land development project involving a section 7 consultation, 
although a city may be involved in land use planning or permitting, and 
may play a role as an interested party in infrastructure projects (such 
as the City of Perris with the San Jacinto River Flood Control 
Project). Any cost associated with this activity/involvement is 
anticipated to be a very small portion of the city's budget. 
Consequently, we do not believe that the designation of critical 
habitat for Navarretia fossalis will significantly or uniquely affect 
these small governmental entities. As such, a Small Government Agency 
Plan is not required.

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 
proposing critical habitat for Navarretia fossalis. Critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. In 
conclusion, the designation of critical habitat for Navarretia fossalis 
does not pose significant takings implications.

Author

    The primary authors of this notice are the staff of the Carlsbad 
Fish and Wildlife Office (see ADDRESSES section).

    Authority: The authority for this action is the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).

    Dated: August 23, 2005.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-17452 Filed 8-29-05; 3:05 pm]
BILLING CODE 4310-55-P