[Federal Register Volume 72, Number 63 (Tuesday, April 3, 2007)]
[Proposed Rules]
[Pages 15857-15859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5743]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI71 and RIN 1018-AI72


Endangered and Threatened Wildlife and Plants; Reopening of 
Public Comment Periods for the Proposed Designations of Critical 
Habitat for the Coastal California Gnatcatcher and the San Diego Fairy 
Shrimp

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rules; reopening of public comment periods.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announce the 
reopening of the public comment period on our April 24, 2003, proposed 
rule (68 FR 20228) to designate critical habitat for the coastal 
California gnatcatcher (Polioptila californica californica) and our 
April 22, 2003, proposed rule (68 FR 19888) to designate critical 
habitat for the San Diego fairy shrimp (Branchinecta sandiegonensis). 
The comment period will provide the public and Federal, State, and 
local agencies and Tribes with an opportunity to submit in writing 
updated comments and information on these species and associated 
habitat, the proposed critical habitat designations, and respective 
draft economic analyses. Comments relevant to issues identified for 
consideration in the April 22 and April 24, 2003, proposed critical 
habitat rules and the April 8, 2004, notice of availability of the 
draft economic analyses for these species that were previously 
submitted during one of the prior public comment periods need not be 
resubmitted as they have already been incorporated into the public 
record and will be fully considered in any final decision. Comments 
relevant to issues identified in the April 8, 2004, Federal Register 
notice (69 FR 18515) reopening the comment period on the proposed 
determination of a Distinct Vertebrate Population Segment for the 
California gnatcatcher also need not be resubmitted as that 
determination will be made separately from the critical habitat 
designations for the coastal California gnatcatcher and San Diego fairy 
shrimp.

DATES: We will accept comments and information until May 3, 2007. Any 
comments received after the closing date may not be considered in the 
final decisions on these proposals.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials on these proposals 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 the 
Carlsbad Fish and Wildlife Office at the above address.
    3. You may send comments by facsimile to 760-431-5901.
    4. You may send comments by electronic mail (e-mail) to 
[email protected]. Please include ``Attn: RIN 1018-AI71 and RIN 
1018-AI72'' in the subject line of your e-mail and your name and 
address in the body of your message. If you do not receive a 
confirmation from the system that we have received your message, 
contact us directly by telephone at 760-431-9440.
    5. You may go to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of these proposed rules, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office at the above address 
(telephone 760-431-9440).
    Copies of the proposed rule and draft economic analysis for the 
coastal California gnatcatcher and San Diego fairy shrimp are available 
on the Internet at http://www.fws.gov/Carlsbad. You may also request 
copies of these documents by contacting the Carlsbad Fish and Wildlife 
Office at the above address.

FOR FURTHER INFORMATION CONTACT: Tannika Engelhard, Branch Chief, 
Listing, Carlsbad Fish and Wildlife Office (telephone 760-431-9440). 
Persons who use a telecommunications device for the hearing impaired 
(TDD) may call the Federal Information Relay Service (FIRS) at 1-800-
877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We are soliciting comments from the public, governmental agencies, 
Tribes, the scientific community, industry, or any other interested 
parties concerning events that have occurred since the April 2003 
publications of the proposed designations of critical habitat for the 
coastal California gnatcatcher and San Diego fairy shrimp and the April 
2004 publications of the draft economic analyses of the proposed 
designations for both species and any new information relevant to the 
status of the species and their essential habitats.
    With regard to the proposed rule and draft economic analysis for 
the coastal California gnatcatcher, we particularly seek comments 
concerning:
    (1) Land use designations and current or planned activities in the 
subject areas and their possible impacts on areas proposed as critical 
habitat for the coastal California gnatcatcher, including new 
information regarding areas proposed as critical habitat that may have 
lost coastal sage scrub as a result of development or other land use;
    (2) Approval and issuance of an incidental take permit under 
section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended 
(Act), for the Orange County Southern Subregion Habitat Conservation 
Plan (HCP);
    (3) Progress in the development and/or implementation of other 
regional HCPs, including the Natural Community Conservation Plan/HCP 
for the City of Rancho Palos Verdes in Los Angeles County, CA, and the 
Western Riverside County Multiple Species HCP;
    (4) Effects of the large wildfires that occurred in October 2003 
and more recently on the coastal sage scrub habitat in Ventura, Los 
Angeles, Riverside, San Bernardino, and San Diego counties; and
    (5) Publication of new biological information regarding the effects 
of wildfires from 2003 to the present or other relevant biological 
publications addressing the status and recovery of sage scrub habitat 
and conservation of the coastal California gnatcatcher.
    With regard to the proposed designation of critical habitat for the 
San Diego fairy shrimp, we particularly seek comments concerning:
    (1) Land use designations and current or planned activities in the 
subject areas and their possible impacts on areas proposed as critical 
habitat for the San Diego fairy shrimp, including new information 
regarding areas proposed as critical habitat that may have lost vernal 
pool habitat as a result of development;
    (2) Information regarding newly identified vernal pools that were 
not

[[Page 15858]]

previously known to support the San Diego fairy shrimp and whether 
these areas are essential to the conservation of the species, and why; 
and
    (3) The October 13, 2006, ruling by the U.S. District Court for the 
Southern District of California that enjoined the incidental take 
permit for seven vernal pool species (including the San Diego fairy 
shrimp) issued to the City of San Diego under the City's Subarea Plan 
for the Southwestern San Diego County Multiple Species Conservation 
Program (MSCP), and how areas within the boundaries of the City of San 
Diego's Subarea Plan of the MSCP that have been proposed for exclusion 
from critical habitat for the San Diego fairy shrimp should be 
evaluated in light of the Court's decision.
    With regard to the proposed designation of critical habitat for 
both the coastal California gnatcatcher and the San Diego fairy shrimp, 
we particularly seek comments concerning any new information regarding 
costs associated with the proposed designations of critical habitat for 
these species, and whether the 2004 draft economic analyses made 
appropriate assumptions regarding likely regulatory changes, indirect 
effects (e.g., property tax losses due to reduced home construction), 
opportunity costs, and regional costs associated with land use controls 
that could arise from the designation of critical habitat for the 
coastal California gnatcatcher and San Diego fairy shrimp.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Background

    On October 24, 2000, we published a final rule designating 
approximately 513,650 ac (207,890 ha) of land in portions of Los 
Angeles, Orange, Riverside, San Bernardino, and San Diego counties as 
critical habitat for the coastal California gnatcatcher (65 FR 63680). 
A final rule designating approximately 4,025 ac (1,629 ha) of land in 
Orange and San Diego counties as critical habitat for the San Diego 
fairy shrimp was published in the Federal Register on October 23, 2000 
(65 FR 63438). Following the publication of these final rules, several 
lawsuits were filed against the Service by multiple parties, including 
the Natural Resources Defense Council (NRDC), Building Industry 
Association of Southern California, National Association of Home 
Builders, Foothill/Eastern Transportation Corridor, and Rancho Mission 
Viejo, L.L.C. (NRDC v. U.S. Dept. of Interior, CV-99-2496 (C.D.Cal., 
filed 12/20/00); Building Industry Association of Southern California 
et al. v. Norton, CV 01-7028 (D.C.C., filed 1/17/01), and Rancho 
Mission Viejo L.L.C. v. Babbitt, CV 01-8412 (D.D.C., filed 12/28/00)), 
challenging the critical habitat designations for the coastal 
California gnatcatcher and/or San Diego fairy shrimp. On June 11, 2002, 
the U.S. District Court for the Central District of California granted 
our request for a remand of the coastal California gnatcatcher and San 
Diego fairy shrimp critical habitat designations so that we could 
reconsider their associated economic analyses. For more information 
about the litigation history associated with these critical habitat 
designations, please see the Previous Federal Action sections of the 
April 24, 2003, proposed rule for the coastal California gnatcatcher 
(68 FR 20228) and the April 22, 2003 proposed rule for the San Diego 
fairy shrimp (68 FR 19890).
    On April 24, 2003, we published a proposed rule in the Federal 
Register (68 FR 20228) to designate critical habitat for the coastal 
California gnatcatcher on approximately 495,795 acres (ac) (200,595 
hectares (ha)) of land in Ventura, Los Angeles, Orange, Riverside, San 
Bernardino, and San Diego counties.
    The Service published a proposed rule in the April 22, 2003, 
edition of the Federal Register (68 FR 19888) to designate critical 
habitat for the San Diego fairy shrimp on approximately 6,098 ac (2,468 
ha) of land in Orange and San Diego counties.
    We accepted public comments on these two proposed rules until June 
23, 2003. On April 8, 2004, we published a notice in the Federal 
Register announcing the availability of draft economic analyses for the 
proposed designations, reopening the public comment periods on our 
proposed rules, and announcing the scheduling of public hearings on our 
proposed critical habitat designations and draft economic analyses for 
the coastal California gnatcatcher and San Diego fairy shrimp. Public 
hearings were conducted on April 29, 2004, from 1 to 3 p.m. and from 6 
to 8 p.m. in Carlsbad, California. The second public comment period 
closed on May 10, 2004. The public comment period for the coastal 
California gnatcatcher and San Diego fairy shrimp proposed critical 
habitat rules is again reopened, and we will accept comments and 
information until May 3, 2007. Any comments received after the closing 
date may not be considered in the final decisions on these proposals.
    The Service initiated work on the final critical habitat rules for 
the coastal California gnatcatcher and the San Diego fairy shrimp, but 
due to other priorities we did not finalize the designations. On 
February 8, 2007, a motion was filed by the Plaintiffs requesting the 
Court to direct us to finalize critical habitat designations for the 
coastal California gnatcatcher and San Diego fairy shrimp. We reached 
an agreement with the Plaintiffs whereby final designations would be 
completed on or before November 2, 2007. This settlement agreement has 
been submitted to the Court for approval.
    Areas currently designated as critical habitat for the coastal 
California gnatcatcher and San Diego fairy shrimp will remain in place 
until such time as new final regulations for these species become 
effective.
    Critical habitat receives protection from destruction or adverse 
modification through required consultation under section 7 of the Act, 
with regard to actions carried out, funded, or authorized by a Federal 
agency. 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 economic, national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat. The draft economic analysis for the proposed 
rule to designate critical habitat for the coastal California 
gnatcatcher estimated that the proposed designation may result in a 
potential economic cost, resulting from section 7 of the Act, of 
approximately $915 million through the year 2025, with an estimated 
annualized cost of $114 million. In the development of a final rule, we 
will evaluate these potential economic impacts and may exclude specific 
areas from the final designation on the basis of economics, 
conservation programs and partnerships, or other factors pursuant to 
section 4(b)(2) of the Act. Any such exclusion would result in a 
reduction of the potential economic impacts of this designation.
    Section 318 of the National Defense Authorization Act for FY04 
(Pub. L. 108-136), amended the Act by adding a new section 4(a)(3)(B) 
that prohibits the Service from designating as critical habitat any 
lands or other geographical areas owned or controlled by the

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Department of Defense, or designated for its use, that are subject to 
an Integrated Natural Resources Management Plan prepared under section 
101 of the Sikes Act Improvement Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is being proposed for designation. In the 
development of the final designation of critical habitat each species, 
the areas proposed will be reviewed to determine if the application of 
section 4(a)(3)(B) of the Act may be appropriate.
    We also prepared a draft economic analysis of the April 22, 2003, 
proposed rule to designate critical habitat for the San Diego fairy 
shrimp. The draft analysis of this proposed designation estimates that 
potential economic costs associated with section 7 of the Act range up 
to $54.6 million over the next 20 years, with a potential annualized 
impact of $7.2 million.
    We are reopening the comment period to allow all interested parties 
to comment simultaneously on the proposed rules for the coastal 
California gnatcatcher and San Diego fairy shrimp and the draft 
economic analyses and to provide new information regarding the species 
and their essential habitats and events that have occurred since the 
publication of the proposed rules in April 2003 and release of the 
draft economic analyses in April 2004.

References Cited

    A complete list of all references used in the development of the 
proposed critical habitat designations for the coastal California 
gnatcatcher and San Diego fairy shrimp is available upon request from 
the Carlsbad Fish and Wildlife Office (see ADDRESSES section).

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: March 22, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-5743 Filed 4-2-07; 8:45 am]
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