[Federal Register Volume 72, Number 51 (Friday, March 16, 2007)]
[Proposed Rules]
[Pages 12585-12589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4802]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU75


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Peck's Cave Amphipod, Comal Springs Dryopid 
Beetle, and Comal Springs Riffle Beetle

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of 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 comment period on the proposed designation of critical 
habitat for the Peck's cave amphipod (Stygobromus pecki), Comal Springs 
dryopid beetle (Stygoparnus comalensis), and Comal Springs riffle 
beetle (Heterelmis comalensis) (Comal springs invertebrates, or CSI) 
under the Endangered Species Act of 1973, as amended (Act), and the 
availability of the draft economic analysis of the proposed designation 
of critical habitat. The draft economic analysis forecasts future 
impacts associated with conservation efforts in areas proposed as 
critical habitat to be $23.3 million over the next 20 years under 
scenario 1 (scenario description described in Background), or $152 
million under scenario 2 in undiscounted dollars (annualized dollars 
are estimated at $1.2 million under scenario 1 and $7.6 million under 
scenario 2). Future economic impacts associated with conservation 
efforts in areas proposed as critical habitat at a 3 percent discount 
rate are estimated to be $17.1 million over the next 20 years under 
Scenario 1, or $111.3 million under scenario 2 (annualized dollars are 
estimated at $1.2 million under scenario 1 and $7.5 million under 
scenario 2). Future economic impacts associated with conservation 
efforts in areas proposed as critical habitat at a 7 percent discount 
rate are estimated to be $11.9 million over the next 20 years under 
scenario 1, or $77.3 million under scenario 2 (annualized dollars are 
estimated at $1.2 million under scenario 1 and $7.4 million under 
scenario 2). It should be noted that the majority of economic impacts 
quantified in this draft EA are jointly caused by eight endangered 
species, including the three CSI. Because all of these species reside 
in the same habitat, separating future impacts of CSI from those of the 
other listed species in the aquifer is not possible.

DATES: We will accept public comments until April 16, 2007.

ADDRESSES: If you wish to comment on the proposed rule or draft 
economic analysis, you may submit your comments and materials 
identified by RIN 1018-AU75, by any of the following methods:
    1. Mail or hand delivery/courier: You may submit written comments 
and information to Robert T. Pine, Field Supervisor, U.S. Fish and 
Wildlife Service, 10711 Burnet Road, Suite 200, Austin, TX 78758.
    2. Fax: You may fax your comments to (512) 490-0974.
    3. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the directions for submitting comments. In the event that our Internet 
connection is not functional, please submit your comments by one of the 
alternate methods mentioned above.
    4. E-mail: Please submit electronic comments in an ASCII file 
format to [email protected] and avoid the use of special characters and 
encryption. Please include ''Attn: RIN 1018-AU75'' and your name and 
return address in your e-mail message. If you do not receive a 
confirmation from the system that we have received your e-mail message, 
please contact us directly by calling our Austin Ecological Services 
Field Office at (512) 490-0057.

FOR FURTHER INFORMATION CONTACT: Robert T. Pine, Supervisor, Austin 
Ecological Services Field Office, at the address listed in ADDRESSES 
(telephone: (512) 490-0057; facsimile: (512) 490-0974). Persons who use 
a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800/877-8339, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments on the original proposed critical habitat designation (71 FR 
40588; July 17, 2006) and on our draft economic analysis of the 
proposed designation. Copies of the draft economic analysis and the 
proposed rule for critical habitat designation are available on the 
internet at http://www.fws.gov/southwest/es/

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Library/ or from the Austin Ecological Services Field Office at the 
address above. You may review comments and materials received and 
review supporting documentation used in preparation of this proposed 
rule by appointment during normal business hours, at the Austin 
Ecological Services Field Office (see ADDRESSES). 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 (Act) (16 U.S.C. 1531 et seq.), 
including whether it is prudent to designate critical habitat;
    (2) Specific data on those specific areas that should be included 
in the designations that were identified as occupied at the time of 
listing that contain the features essential for the conservation of the 
species; and those specific areas that were not occupied by the species 
at the time it was listed but which have subsequently been identified 
as occupied and those unoccupied areas that are essential to the 
conservation of the species and should be included in the designations 
and why such areas are essential;
    (3) Land-use designations and current or planned activities in, or 
adjacent to, the subject areas and their possible impacts on these 
species or proposed critical habitat;
    (4) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (5) Data on any foreseeable economic, national security, or other 
potential impacts resulting from the proposed designation and, in 
particular, any impacts on small entities;
    (6) Any foreseeable environmental impacts directly or indirectly 
resulting from the proposed designation of critical habitat;
    (7) Data supporting the need for subsurface vegetation (e.g., roots 
that can penetrate into the aquifer) for sheltering, breeding, or 
feeding habitat for any or all of the listed invertebrates. If 
providing such data, please explain if the 50-foot (ft) distance 
appropriately defines the lateral extent of critical habitat to provide 
for the primary constituent elements (PCEs) related to the surface 
vegetation that produces the subsurface vegetation (e.g., roots);
    (8) Information on the extent of documented Comal Springs riffle 
beetles occurrences in Spring Lake;
    (9) Whether there are data supporting the premise that any or all 
of the invertebrates are detritivores (detritus-feeding animals) in 
spring-influenced riparian zones;
    (10) Whether there are any data documenting the need of any 
subsurface areas for breeding, feeding, or sheltering, or documenting 
the presence of any or all of the invertebrates in the subsurface 
areas;
    (11) Whether the economic analysis adequately addresses the likely 
effects and resulting costs arising from State laws as a result of the 
proposed critical habitat designation;
    (12) Whether the economic analysis correctly assesses the effect on 
regional costs associated with land-use controls that could arise from 
the designation of critical habitat for these species;
    (13) Whether the designation of critical habitat will result in 
disproportionate economic or other impacts to specific areas that 
should be evaluated for possible exclusion from the final designation;
    (14) Whether the economic analysis appropriately identifies all 
costs that could result from the designation of critical habitat for 
these species; and
    (15) Whether the benefits of exclusion in any particular area 
outweigh the benefits of inclusion under section 4(b)(2) of the Act.
    Our final designation of critical habitat will take into 
consideration all comments and any additional information received, 
including all previous comments and information submitted during the 
initial comment period.
    Please include ``RIN 1018-AU75'' and your name and return address 
in your e-mail message. If you do not receive a confirmation from the 
system that we have received your e-mail message, please contact us 
directly (see ADDRESSES section). Please note that the e-mail address 
[email protected] will be unavailable after the public comment period 
terminates.
    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 names and home addresses, but if you wish us to consider 
withholding this information, you must state this prominently at the 
beginning of your comments. In addition, you must present rationale for 
withholding this information. This rationale must demonstrate that 
disclosure would constitute a clearly unwarranted invasion of privacy. 
Unsupported assertions will not meet this burden. In the absence of 
exceptional, documentable circumstances, this information will be 
released. We will always make submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives of or officials of organizations or businesses, 
available for public inspection in their entirety.

Background

    We proposed to designate critical habitat for the Peck's cave 
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle 
on July 17, 2006 (71 FR 40588). The proposed critical habitat totaled 
about 38.5 acres (ac) (15.6 hectares (ha)) for the Peck's cave amphipod 
in Comal County, Texas; 39.5 ac (16.0 ha) for the Comal Springs dryopid 
beetle in Comal and Hays Counties, Texas; and 30.3 ac (12.3 ha) for the 
Comal Springs riffle beetle in Comal and Hays Counties, Texas. Pursuant 
to the terms of a settlement agreement, we will submit for publication 
to the Federal Register a final critical habitat designation for the 
Peck's cave amphipod, Comal Springs dryopid beetle, and Comal Springs 
riffle beetle by June 29, 2007.
    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic or any other 
relevant impacts of specifying any particular area as critical habitat. 
Based on the July 17, 2006, proposed rule to designate critical habitat 
for the Peck's cave amphipod, Comal Springs dryopid beetle, and Comal 
Springs riffle beetle (71 FR 40588), we have prepared a draft economic 
analysis (EA) of the proposed critical habitat designation for the 
Peck's cave amphipod, Comal Springs dryopid beetle, and Comal Springs 
riffle beetle.
    Our draft EA addresses the potential impacts of conservation 
efforts for the Peck's cave amphipod, Comal Springs dryopid beetle, and 
Comal Springs riffle beetle on activities occurring on lands proposed 
for or that may be affected by the proposed designation. The EA 
measures lost potential economic efficiency associated with water use 
activities, construction development, water quality, aquatic 
restoration, and administrative costs.
    The draft EA considers the potential economic effects of actions 
relating to the conservation of the Peck's cave amphipod, Comal Springs 
dryopid beetle, and Comal Springs riffle beetle, including costs 
associated with sections 4, 7, and 10 of the Act and those

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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 the 
Comal Springs invertebrates in the areas proposed as critical habitat. 
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). The draft EA also analyzes whether a particular group or economic 
sector bears an undue proportion of the impacts, with specific analysis 
of the impacts to small entities and potential impacts on energy 
availability. Finally, the draft EA estimates economic impacts to 
activities from 2006 to 2026 (20 years after the year of proposed 
designation of critical habitat). Forecasts of economic conditions and 
other factors beyond the next 20 years would be speculative.
    We solicit data and comments from the public on the draft EA, as 
well as on all aspects of our proposal to designate critical habitat. 
We may revise the proposal, or its supporting documents, to incorporate 
or address new information received during this comment period. In 
particular, we may exclude an area from the final designation of 
critical habitat if the Secretary determines that the benefits of 
excluding the area outweigh the benefits of including the area as 
critical habitat, provided such exclusion will not result in the 
extinction of the species.
    Under scenarios 1 and 2 in our draft EA, impacts associated with 
water use changes comprise the vast majority, or between 94 and 98 
percent, of the total quantified impacts in the areas we have proposed 
for designation. Total permitted withdrawals from the Edwards Aquifer 
are to be reduced from approximately 549,000 acre-feet to 450,000 acre-
feet, following a 1993 lawsuit concerning five endangered species in 
the Edwards Aquifer that share habitat with CSI. As soon as 2008, total 
permitted water withdrawals in the Edwards Aquifer may be further 
limited from the present 549,000 acre-feet per year to 400,000 acre-
feet per year (scenario 1). It is also possible that, in dry years, 
additional restrictions may be imposed that will further limit aquifer 
withdrawals to 340,000 acre-feet (scenario 2). This draft EA examines 
social welfare and regional economic impacts that could result from 
these limits to water withdrawals in the aquifer. It should be noted 
that the majority of economic impacts quantified in this draft EA are 
jointly caused by eight endangered species, including the three CSI. 
Because all of these species reside in the same habitat, separating 
future impacts of CSI from those of the other listed species in the 
aquifer is not possible.
    We estimate costs related to conservation activities for the area 
proposed for designation of critical habitat for the Comal Springs 
invertebrates under sections 4, 7, and 10 of the Act to be 
approximately $23.3 million over the next 20 years under scenario 1, or 
$152 million under scenario 2 in undiscounted dollars (annualized 
dollars are estimated to be $1.2 million under scenario 1 and $7.6 
million under scenario 2). Future economic impacts associated with 
conservation efforts in areas proposed as critical habitat at a 3 
percent discount rate are estimated to be $17.1 million over the next 
20 years under scenario 1, or $111.3 million under scenario 2 
(annualized dollars are estimated to be $1.2 million under scenario 1 
and $7.5 million under scenario 2). Future economic impacts associated 
with conservation efforts in areas proposed as critical habitat at a 7 
percent discount rate are estimated to be $11.9 million over the next 
20 years under scenario 1, or $77.3 million under scenario 2 
(annualized dollars are estimated to be $1.2 million under scenario 1 
and $7.4 million under scenario 2).

Required Determinations--Amended

    In our July 17, 2006, proposed rule (71 FR 40588), we indicated 
that we would be deferring our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. In this notice, we are affirming the information 
contained in the proposed rule concerning Executive Order 13132 and 
Executive Order 12988; the Paperwork Reduction Act; the National 
Environmental Policy Act; and the President's memorandum of April 29, 
1994, ``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). Based on the information made available to 
us in the draft economic analysis, we are amending our Required 
Determinations, as provided below, concerning Executive Order 12866 and 
the Regulatory Flexibility Act, Executive Order 13211, Executive Order 
12630, and the Unfunded Mandates Reform Act.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, on the basis of our draft EA, we do not anticipate that the 
designation of critical habitat for these species would have an annual 
effect on the economy of $100 million or more or affect the economy in 
a material way. Due to the timeline for publication in the Federal 
Register, the Office of Management and Budget (OMB) has not formally 
reviewed the proposed rule.
    Further, Executive Order 12866 directs Federal agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will then need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Endangered Species 
Act of 1973, as amended, we must then evaluate alternative regulatory 
approaches, where feasible, when promulgating a designation of critical 
habitat.
    In developing our proposed designation of critical habitat, we 
consider economic impacts, impacts to national security, and other 
relevant impacts under section 4(b)(2) of the Act. Based on the 
discretion allowable under this provision, we may exclude any 
particular area from the designation of critical habitat provided that 
the benefits of such exclusion outweigh the benefits of specifying the 
area as critical habitat and that such exclusion would not result in 
the extinction of the species. As such, we believe that the evaluation 
of the inclusion or exclusion of particular areas, or combination(s) 
thereof, in a designation constitutes our alternative regulatory 
analysis.

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 must 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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory

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flexibility analysis is required if the head of an 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 
the Comal Springs invertebrates would affect a substantial number of 
small entities, we evaluated the entities potentially impacted within 
particular types of economic activities (e.g., aquatic restoration, 
changes in water use, and construction and development activities). We 
considered each industry or category individually to determine the 
impacts. 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.
    In Chapters 2 and 3 of our draft EA, we focus on small entities 
that may bear the regulatory costs. Of the three affected activities 
discussed in the economic analysis, (1) Aquatic restoration, (2) 
changes in water use, and (3) construction and development activities, 
the analysis determines that only impacts to construction and 
development activities are forecast to be borne in part by small 
entities.
    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.
    Construction and Development Activities. The draft EA concludes 
that the most likely location for development activities within the 
proposed critical habitat designation is on two parcels in the Comal 
Springs unit. The analysis assumes that the private owners of 
developable lands in the proposed critical habitat designation impacted 
by future conservation efforts for the Peck's cave amphipod, Comal 
Springs dryopid beetle, and Comal Springs riffle beetle will be 
developers. This analysis estimates that one developer (0.3 percent of 
small developers) is likely to develop the affected parcels. Since 98 
percent of the developers in the region are considered small, this 
analysis assumes that the one affected developer will be small. The 
draft economic analysis estimates that two residential housing units 
could be built within proposed critical habitat by one small developer 
over the next 20 years. Impacts to the developer are estimated to 
include conservation efforts, such as reducing sedimentation, 
monitoring, appropriate equipment staging, and minimizing disturbance 
to the water body. Costs are estimated to be approximately 0.001 
percent of annual sales (Draft Economic Analysis 2007, Appendix B, p. 
B8). From this analysis, we have determined that this proposed 
designation will not have an effect on a substantial number of small 
businesses that are part of residential and commercial development nor 
will it result in a significant effect to the annual sales of these 
small businesses impacted by this proposed designation, because only 
one developer (0.3 percent of small developers) may be affected and the 
approximate impacts to this one developer would be 0.001 percent of 
typical annual sales over the next 20 years.

Executive Order 13211--Energy Supply, Distribution, and Use

    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 (Draft 
Economic Analysis 2007, p. B9). Therefore, this action is not a 
significant 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'' and 
``a duty arising from participation in a voluntary Federal program,'' 
unless the regulation ``relates to a then-existing Federal program 
under which $500,000,000 or more is provided annually to State, local, 
and tribal governments under entitlement authority,'' if the provision 
would ``increase the stringency of conditions of assistance'' or 
``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) A condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty

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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, or 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) The draft economic analysis discusses potential impacts of 
critical habitat designation for the Peck's cave amphipod, Comal 
Springs dryopid beetle, and Comal Springs riffle beetle on water 
management activities, administration activities, residential and 
commercial development activities, and aquatic restoration activities. 
Impacts on small governments are not anticipated, or they are 
anticipated to be passed through to consumers (Draft Economic Analysis 
2007, Appendix B). As such, a Small Government Agency Plan is not 
required.

Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the Peck's cave amphipod, Comal Springs 
dryopid beetle, and Comal Springs riffle beetle in a takings 
implications assessment. The takings implications assessment concludes 
that this proposed designation of critical habitat for these Comal 
Springs invertebrates does not pose significant takings implications.

Author

    The primary author of this notice is the staff of the Austin 
Ecological Services Field Office.

Authority

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

    Dated: March 8, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-4802 Filed 3-15-07; 8:45 am]
BILLING CODE 4310-55-P