[Federal Register Volume 74, Number 202 (Wednesday, October 21, 2009)]
[Proposed Rules]
[Pages 53999-54017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25242]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2009-0062; 92210-1117-0000-B4]
[RIN 1018-AW85]


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Buena Vista Lake shrew

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise our designation of critical habitat for the Buena Vista Lake 
shrew (Sorex ornatus relictus) under the Endangered Species Act of 
1973, as amended (Act). Our proposal is the same as the proposed 
critical habitat we published on August 19, 2004 (69 FR 51417). In 
total, approximately 4,649 acres (ac) (1,881 hectares (ha)) occur 
within the boundaries of the proposed revised critical habitat 
designation. The proposed revised critical habitat is located in the 
Central Valley floor of Kern County, California.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before December 21, 2009. We must 
receive requests for public hearings, in writing, at the address shown 
in the FOR FURTHER INFORMATION CONTACT section by December 7, 2009.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments on 
Docket No. FWS-R8-ES-2009-0062.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: Docket no. FWS-R8-ES-2009-0062; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Daniel Russell, Acting Listing 
Coordinator, U.S. Fish and Wildlife Service, Sacramento Fish and 
Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825; 
telephone (916) 414-6600; facsimile (916) 414-6712. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal to 
revise critical habitat will be as accurate and as effective as 
possible. Therefore, we request comments or suggestions on this 
proposed rule. We particularly seek comments concerning:
    (1) The reasons we should or should not revise the designation of 
habitat as ``critical habitat'' under section 4 of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 
including whether there are threats to the species from human activity, 
the degree of which can be expected to increase due to the designation, 
and whether that increase in threat outweighs the benefit of 
designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
     Areas that provide habitat for the Buena Vista Lake shrew 
(herein after referred to as the shrew) that we did not discuss in our 
August 19, 2004 (69 FR 51417) proposed critical habitat rule,
     Areas containing the features essential to the 
conservation of the shrew that we should include in the revised 
designation and why,
     Areas proposed that do not contain features essential for 
the conservation of the species and why, and
     Areas not occupied at the time of listing that are 
essential to the conservation of the species and why.
    (3) Land-use designations and current or planned activities in the 
areas proposed as revised critical habitat, as well as their possible 
effects on proposed revised critical habitat.
    (4) Comments or information that may assist us in identifying or 
clarifying the physical and biological features.
    (5) How the proposed revised critical habitat boundaries could be 
refined to more closely circumscribe the landscapes identified as 
containing the features essential to the species' conservation.
    (6) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (7) Whether any specific areas being proposed as revised critical 
habitat should be excluded under section

[[Page 54000]]

4(b)(2) of the Act, and whether the benefits of potentially excluding 
any particular area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (8) Information on any quantifiable potential economic impacts of 
the proposed designation of critical habitat.
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments on this proposed rule by one of the 
methods listed in the ADDRESSES section. If you submit information via 
http://www.regulations.gov, your entire submission -- including any 
personal identifying information--will be posted on the website. If you 
submit a hardcopy that includes personal identifying information, you 
may request at the top of your document that we withhold this personal 
identifying information from public review. However, we cannot 
guarantee that we will be able to do so. We will post all hardcopy 
submissions on http://www.regulations.gov.
    Comments and information that we receive will be available for you 
to review at http://www.regulations.gov, or you may make an appointment 
during normal business hours at the U.S. Fish and Wildlife Service, 
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of revised critical habitat in this proposed rule. 
There is no new information on the biology, distribution, or abundance 
of the shrew since the time the species was listed. For more 
information on the shrew, refer to the final listing rule published in 
the Federal Register on March 6, 2002 (67 FR 10101).

Previous Federal Actions

    On August 19, 2004, we proposed critical habitat for the shrew on 
approximately 4,649 ac (1,881 ha) in Kern County, California (69 FR 
51417). On January 24, 2005, we published a final rule (70 FR 3438) 
designating 84 ac (34 ha) of critical habitat for the shrew in Kern 
County, California. The decrease in acreage from the areas we proposed 
to the areas we designated resulted from exclusions under section 
4(b)(2) of the Act and, to a small degree, refinements in our mapping 
of critical habitat boundaries.
    On October 2, 2008, the Center for Biological Diversity filed a 
complaint in the U.S. District Court for the Eastern District of 
California challenging the Service's designation of critical habitat 
for the shrew (Center for Biological Diversity v. United States Fish 
and Wildlife, et al., Case No. 08-CV-01490-AWI-GSA). A July 9, 2009, 
settlement agreement stipulates the Service will, within 90 days of the 
signed agreement, submit to the Federal Register for publication a new 
proposal of critical habitat for the species which encompasses the same 
geographic area as the August 19, 2004, (69 FR 51417) proposed 
designation. Additionally, the Service agreed to submit to the Federal 
Register for publication, on or before March 22, 2012, a final 
determination on revised critical habitat for the shrew.
    The current designation of critical habitat for the Buena Vista 
Lake shrew (70 FR 3438, January 24, 2005) remains in full force and 
effect until we publish a new final rule revising critical habitat for 
the shrew.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (i) The specific areas within the geographical area occupied by the 
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) which may require special management considerations or 
protection; and
    (ii) specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) requires consultation on Federal actions that 
may affect critical habitat. The designation of critical habitat does 
not affect land ownership or establish a refuge, wilderness, reserve, 
preserve, or other conservation area. Such designation does not allow 
the government or public to access private lands. Such designation does 
not require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner seeks or requests 
Federal agency funding or authorization for an action that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7(a)(2) would apply, but even in the event of a destruction or 
adverse modification finding, Federal action agency's and the 
applicant's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain the physical and biological features essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (areas on which are found the 
physical and biological features (PBFs) laid out in the appropriate 
quantity and spatial arrangement for the conservation of the species). 
Under the Act and regulations at 50 CFR 424.12, we can designate 
critical habitat in areas outside the geographical area occupied by the 
species at the time it is listed only when we determine that those 
areas are essential for the conservation of the species and that 
designation limited to those areas occupied at the time of listing 
would be inadequate to ensure the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information

[[Page 54001]]

Quality Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we determine which areas should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not be required for recovery of the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. Areas that support populations are also subject to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available scientific 
information at the time of the agency 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 (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical and Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
the regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied at the time of listing to propose as 
critical habitat, we consider the physical and biological features 
essential to the conservation of the species which may require special 
management considerations or protection. These include, but are not 
limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We consider the specific physical and biological features (PBFs) to 
be the primary constituent elements of habitat laid out in the 
appropriate quantity and spatial arrangement essential for the 
conservation of the species. We derive the physical and biological 
features from the primary constituent elements (PCEs) for this species 
as they were described in the August 19, 2004 (69 FR 51417) proposed 
designation of critical habitat for the Buena Vista Lake shrew. Please 
refer to the Proposed Regulation Promulgation Section of this document 
and the previous proposed designation (69 FR 51417, August 19, 2004) 
for a description of PCEs.

Proposed Revised Critical Habitat Designation

    Under the terms of the July 9, 2009, settlement agreement, we 
propose revised critical habitat for the shrew that matches the 
proposed designation we published on August 19, 2004 (69 FR 51417). See 
the Proposed Regulation Promulgation section of this document, which is 
the same as that which we published in 2004. The proposed designation 
includes five units which constitute approximately 4,649 ac (1,881 ha), 
located in the Central Valley floor of Kern County, California. Please 
see the August 19, 2004 (69 FR 51417), notice for details regarding 
methods, criteria, critical habitat unit descriptions, and special 
management considerations or protection for the proposed revised 
critical habitat designation.

Effects of Critical Habitat Designation

Section 7 Consultation
    Section 7(a)(2) 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. However, 
decisions by the courts of appeals for the Fifth and Ninth Circuits 
have invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9\th\ Cir 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F 
(5\th\ Cir 2001)). Instead, we rely upon the statutory provisions of 
the Act to make that determination. Under the statutory provisions of 
the Act, the key factor in determining whether an action will destroy 
or adversely modify critical habitat is whether, with implementation of 
the proposed Federal action, the affected critical habitat would remain 
functional (or retain those PCEs that relate to the ability of the area 
to support the species) to serve its intended conservation role for the 
species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to 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 
the Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. This is a procedural 
requirement only, as any conservation recommendations in a conference 
report or opinion are strictly advisory. However, once proposed species 
become listed, or proposed critical habitat is designated as final, the 
full prohibitions of section 7(a)(2) of the Act apply to any Federal 
action. The primary utility of the conference procedures is to maximize 
the opportunity for a Federal agency to adequately consider proposed 
species and critical habitat and avoid potential delays in implementing 
their proposed action as a result of the section 7(a)(2) compliance 
process, should those species be listed or the critical habitat 
designated.
    We may conduct conferences either informally or formally. We 
typically use informal conferences as a means of providing advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that the proposed action may cause with respect to the 
proposed critical habitat. We typically

[[Page 54002]]

use formal conferences when the Federal agency or the Service believes 
the proposed action is likely to adversely affect a species proposed 
for listing or degrade proposed critical habitat in some manner.
    We generally provide the results of an informal conference in a 
conference report, while we provide the results of a formal conference 
in a conference opinion. We typically prepare conference opinions on 
proposed critical habitat in accordance with procedures contained at 50 
CFR 402.14, as if the proposed critical habitat was already designated. 
If no substantial new information or changes in the action alter the 
content of the opinion, we may adopt the conference opinion as the 
biological opinion when the critical habitat is designated (see 50 CFR 
402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act 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. Activities on State, tribal, local, or private 
lands requiring a Federal permit (such as a permit from the U.S. Army 
Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 
1251 et seq.) or a permit from us under section 10 of the Act) or 
involving some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) are subject to the section 7(a)(2) 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, tribal, local, or private lands 
that are not federally funded, authorized, or permitted, do not require 
section 7(a)(2) consultations.
    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. At the conclusion of this consultation, the 
Service will issue either:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, but 
are likely to adversely affect, listed species or critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable, to 
avoid these outcomes. We define ``reasonable and prudent alternatives'' 
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,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying 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 a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action. Consequently, some Federal 
agencies may need to request reinitiation of consultation with us on 
actions for which formal consultation has been completed, if those 
actions with discretionary involvement may affect subsequently listed 
species or designated critical habitat.

Application of the Jeopardy and Adverse Modification Standards

Jeopardy Standard

    Currently, the Service applies an analytical framework for Buena 
Vista Lake shrew jeopardy analyses that relies heavily on the 
importance of known populations to the species' survival and recovery. 
Section 7(a)(2) of the Act analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of Buena Vista Lake shrew in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, the jeopardy analysis focuses on the 
range-wide status of Buena Vista Lake shrew, the factors responsible 
for that condition, and what is necessary for this species to survive 
and recover. An emphasis is also placed on characterizing the 
conditions of Buena Vista Lake shrew in the area affected by the 
proposed Federal action and the role of affected populations in the 
survival and recovery of the species. That context is then used to 
determine the significance of adverse and beneficial effects of the 
proposed Federal action and any cumulative effects for purposes of 
making the jeopardy determination.

Adverse Modification Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Generally, the conservation role of 
Buena Vista Lake shrew critical habitat units is to support the various 
life-history needs and provide for the conservation of the species. 
Activities that may destroy or adversely modify critical habitat are 
those that alter the PCEs to an extent that appreciably reduces the 
conservation value of critical habitat for Buena Vista Lake shrew.
    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 may also jeopardize the continued existence of the 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

[[Page 54003]]

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. 
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 or aquatic habitat for 
Buena Vista Lake shrews.
    (7) Actions that would affect waters of the United States 
authorized by the U.S. Army Corps of Engineers 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 proposed revised 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 proposed revised 
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 
revised 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 revised designation of critical habitat.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
     An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
     A statement of goals and priorities;
     A detailed description of management actions to be 
implemented to provide for these ecological needs; and
     A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the 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 (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 proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the proposed revised critical habitat designation.

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.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of revised 
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. The 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.
    The 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 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 
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 54004]]

    Following the publication of the previous proposed critical habitat 
designation (69 FR 51417), we conducted an economic analysis to 
estimate the potential economic effect of the designation. On November 
30, 2004, we published a notice of availability for the draft economic 
analysis of the proposed critical habitat designation (69 FR 69578). 
The economic analysis included both retrospective, or pre-designation, 
and prospective, or post-designation, economic costs to various 
entities as a result of Buena Vista Lake shrew conservation activities. 
Retrospective costs are those costs estimated to have occurred from the 
time the species was listed in April 2002 until the proposal of 
critical habitat in August 2004. The estimated retrospective cost is 
$122,237. These costs were primarily certain administrative costs 
associated with the preparation of a Comprehensive Conservation Plan at 
the Kern National Wildlife Refuge critical habitat unit (CHU) and the 
section 7 consultation related to the preparation of a biological 
opinion related to a habitat conservation plan (HCP) at the Goose Lake 
proposed CHU.
    Values presented in the draft economic analysis are in 2004 dollars 
and are calculated at 3 and 7 percent discount rates. Total prospective 
costs range from $6.7 to $14.2 million under a 3 percent discount rate, 
and $4.8 to $10.1million under a 7 percent rate. Thus, prospective 
average annual costs range from $452,266 to $955,833. These costs 
include effects on agricultural producers adjacent or proximate to 
three CHUs, biological monitoring, HCP development, and supplemental 
water purchases. The ranges reflect totals with and without 
supplemental water for Kern Lake, Coles Levee, and Kern Fan Water 
Recharge CHUs. Both the Kern National Wildlife Refuge and Goose Lake 
CHUs are assumed to require supplemental water, and thus do not 
contribute to this range of costs. However, the economic analysis 
prepared for the 2004 critical habitat designation does not accurately 
reflect the full range of potential economic impacts that may result 
from this proposed revision to Buena Vista Lake shrew critical habitat.
    We are preparing a new draft economic analysis of the economic 
impacts of this proposed revision to critical habitat for the shrew. 
Upon completion of the new draft economic analysis, we will announce 
its availability in the Federal Register and reopen the public comment 
period on the proposed revised designation and the new draft economic 
analysis. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Sacramento Fish and Wildlife 
Office directly (see FOR FURTHER INFORMATION CONTACT section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our revised critical habitat designation is based on 
scientifically sound data, assumptions, and analyses. We have invited 
these peer reviewers to comment during this public comment period on 
our specific assumptions and conclusions in this proposed designation 
of revised critical habitat.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, the final decision may differ from 
this proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days after the date 
of publication of this proposed rule in the Federal Register. Such 
requests must be sent to the address shown in the FOR FURTHER 
INFORMATION CONTACT section. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (E.O. 12866). OMB bases its determination upon 
the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 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 effects of the rule on small entities (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 RFA to require 
Federal agencies to provide a certification statement of the factual 
basis for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, we defer the RFA finding until completion of the new draft 
economic analysis prepared under section 4(b)(2) of the Act and E.O. 
12866. Upon completion of the new draft economic analysis, we will 
announce its availability in the Federal Register and reopen the public 
comment period on the proposed revised designation and the new draft 
economic analysis. We will include with this announcement, as 
appropriate, an initial regulatory flexibility analysis or a 
certification that the rule will not have a significant economic impact 
on a substantial number of small entities accompanied by the factual 
basis for that determination.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule would 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 [T]ribal

[[Page 54005]]

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 [T]ribal 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 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 that receive 
Federal funding, assistance, or permits, or that 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 onto State governments.
    (b) We do not believe that this rule would significantly or 
uniquely affect small governments. Therefore, a Small Government Agency 
Plan is not required. However, we will further evaluate this issue as 
we conduct our economic analysis, and review and revise this assessment 
if appropriate

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 designating revised 
critical habitat for the Buena Vista Lake shrew in a takings 
implications assessment. The takings implications assessment concludes 
that this designation of revised critical habitat for this species does 
not pose significant takings implications for lands within or affected 
by the designation.

Federalism

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed revised critical habitat designation with 
appropriate State resource agencies in California. The designation may 
have some benefit to these governments because the areas that contain 
the features essential to the conservation of the species are more 
clearly defined, and the physical and biological features of the 
habitat necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
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.

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), 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 revised critical 
habitat in accordance with the provisions of the Act. This proposed 
rule uses standard property descriptions and identifies the physical 
and biological features within the designated areas to assist the 
public in understanding the habitat needs of the this species.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). 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 (NEPA)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

[[Page 54006]]

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), E.O. 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. In accordance with 
Secretarial Order 3206 of June 5, 1997 ``American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species 
Act'', we readily acknowledge our responsibilities to work directly 
with Tribes in developing programs for healthy ecosystems, to 
acknowledge that tribal lands are not subject to the same controls as 
Federal public lands, to remain sensitive to Indian culture, and to 
make information available to Tribes.
    We have determined that there are no tribal lands occupied at the 
time of listing that contain the features essential for the 
conservation, and no tribal lands that are essential for the 
conservation for the Buena Vista Lake shrew. Therefore, we have not 
proposed to designate revised critical habitat for this species on 
tribal lands.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) 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. 
We do not expect it to significantly affect energy supplies, 
distribution, or use. Because this action is not a significant energy 
action, no Statement of Energy Effects is required. However, we will 
further evaluate this issue as we conduct our economic analysis, and 
review and revise this assessment as warranted.

References Cited

    A complete list of all references cited in this rulemaking is 
available on http://www.regulations.gov and upon request from the Field 
Supervisor, Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT section).

Author(s)

    The primary authors of this notice are the staff members of the 
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17-- [AMENDED]

    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.

    2. Amend Sec.  17.95(a) by revising the entry for ``Buena Vista 
Lake Shrew (Sorex ornatus relictus)'' 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;
    (ii) Suitable moisture supplied by a shallow water table, 
irrigation, or proximity to permanent or semi-permanent 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) Note: Map 1 (index map) follows:
BILLING CODE 4310-55-S

[[Page 54007]]

[GRAPHIC] [TIFF OMITTED] TP21OC09.023

    (6) Unit 1a: Kern National Wildlife Refuge, Kern County, 
California.
    (i) From USGS 1:24,000 quadrangle maps Hacienda Ranch, California, 
and Lost Hills NE, California, land bounded by the following UTM 11 NAD 
27 coordinates (E, N): 261370, 3955645; 261384, 3955731; 261457, 
3955912; 261502, 3955985; 261534, 3956044; 261643, 3955967; 261679, 
3955949; 261775, 3955967; 261797, 3955981; 261784, 3956017; 261779, 
3956062;

[[Page 54008]]

261802, 3956149; 261829, 3956249; 261815, 3956326; 261788, 3956417; 
261784, 3956621; 261734, 3956675; 261711, 3956716; 261716, 3956762; 
261756, 3956784; 261788, 3956825; 261793, 3956862; 261797, 3957157; 
261806, 3957170; 261825, 3957175; 261943, 3957120; 261993, 3957107; 
262179, 3957093; 262297, 3957089; 262315, 3957071; 262424, 3956857; 
262469, 3956771; 262479, 3956739; 262479, 3956707; 262465, 3956685; 
262460, 3956671; 262460, 3956644; 262465, 3956607; 262469, 3956566; 
262479, 3956535; 262465, 3956494; 262451, 3956453; 262447, 3956417; 
262447, 3956385; 262460, 3956367; 262488, 3956362; 262519, 3956385; 
262551, 3956417; 262598, 3956482; 262561, 3956219; 262543, 3956086; 
262536, 3956035; 262456, 3955981; 262429, 3955903; 262397, 3955881; 
262347, 3955858; 262320, 3955844; 262265, 3955822; 262224, 3955799; 
262197, 3955776; 262202, 3955763; 262220, 3955744; 262256, 3955717; 
262288, 3955704; 262383, 3955694; 262438, 3955690; 262487, 3955684; 
262486, 3955677; 262477, 3955610; 261938, 3955627; 261370, 3955645; 
returning to 261370, 3955645.
    (ii) The map of Unit 1a appears at paragraph (8)(ii) of this entry.
    (7) Unit 1b: Kern National Wildlife Refuge, Kern County, 
California.
    (i) From USGS 1:24,000 quadrangle map Lost Hills NW, California, 
and Lost Hills NE, California; land bounded by the following UTM 11 NAD 
27 coordinates (E, N): 263287, 3957189; 263287, 3957174; 263304, 
3957163; 263343, 3957160; 263390, 3957139; 263399, 3957115; 263411, 
3957100; 263438, 3957086; 263459, 3957050; 263464, 3957023; 263464, 
3957003; 263506, 3957003; 263553, 3956997; 263589, 3956964; 263607, 
3956929; 263613, 3956887; 263607, 3956834; 263613, 3956801; 263627, 
3956748; 263621, 3956686; 263571, 3956638; 263547, 3956617; 263550, 
3956573; 263539, 3956532; 263500, 3956505; 263453, 3956490; 263402, 
3956502; 263390, 3956511; 263382, 3956463; 263364, 3956416; 263328, 
3956381; 263287, 3956363; 263236, 3956360; 263207, 3956354; 263180, 
3956321; 263147, 3956271; 263097, 3956241; 263053, 3956232; 262988, 
3956226; 262931, 3956250; 262878, 3956283; 262822, 3956309; 262786, 
3956318; 262745, 3956315; 262688, 3956318; 262662, 3956321; 262650, 
3956327; 262674, 3956499; 262715, 3956472; 262748, 3956455; 262783, 
3956458; 262816, 3956458; 262854, 3956443; 262899, 3956428; 262961, 
3956389; 263005, 3956372; 263053, 3956386; 263091, 3956431; 263142, 
3956484; 263195, 3956526; 263239, 3956520; 263254, 3956502; 263272, 
3956540; 263296, 3956603; 263334, 3956647; 263384, 3956662; 263423, 
3956647; 263423, 3956674; 263450, 3956703; 263473, 3956727; 263482, 
3956757; 263467, 3956780; 263467, 3956810; 263470, 3956831; 263473, 
3956854; 263461, 3956860; 263426, 3956866; 263384, 3956869; 263340, 
3956902; 263319, 3956949; 263310, 3956976; 263293, 3957006; 263275, 
3957020; 263248, 3957041; 263207, 3957047; 263162, 3957056; 263136, 
3957080; 263115, 3957136; 263109, 3957171; 263109, 3957195; 263287, 
3957189; returning to 263287, 3957189.
    (ii) The map of Unit 1b appears at paragraph (8)(ii) of this entry.
    (8) Unit 1c: Kern National Wildlife Refuge, Kern County, 
California.
    (i) From USGS 1:24,000 quadrangle map Lost Hills NW, California, 
and Lost Hills NE, California; land bounded by the following UTM 11 NAD 
27 coordinates (E, N): 262564, 3955705; 262575, 3955694; 262592, 
3955680; 262623, 3955677; 262864, 3955666; 263540, 3955646; 264029, 
3955635; 264946, 3955607; 266049, 3955565; 266680, 3955534; 266700, 
3955531; 266714, 3955523; 266714, 3955495; 266588, 3955497; 266243, 
3955511; 264214, 3955584; 262687, 3955626; 262572, 3955629; 262528, 
3955647; 262530, 3955660; 262533, 3955685; 262536, 3955706; 262564, 
3955705; returning to 262564, 3955705.
    (ii) Note: Map 2 (Units 1a, 1b, and 1c) follows:

[[Page 54009]]

[GRAPHIC] [TIFF OMITTED] TP21OC09.024

    (9) Unit 2: Goose Lake, Kern County, California.
    (i) From USGS 1:24,000 quadrangle map Semitropic, California, land 
bounded by the following UTM 11 NAD 27 coordinates (E, N): 269741, 
3939122; 269841, 3939090; 269931, 3939074; 270005, 3939064; 270065, 
3939048; 270081, 3939030; 270117, 3939010; 270185, 3938968; 270273, 
3938860; 270351, 3938749; 270403, 3938691; 270443, 3938671; 270484, 
3938649; 270502, 3938621; 270544, 3938573; 270598, 3938547; 270660, 
3938527; 270782, 3938449; 270824, 3938423;

[[Page 54010]]

270848, 3938423; 270878, 3938431; 270930, 3938449; 271005, 3938452; 
271020, 3938439; 271064, 3938409; 271120, 3938353; 271186, 3938269; 
271260, 3938173; 271286, 3938125; 271286, 3938079; 271278, 3938035; 
271288, 3937959; 271318, 3937905; 271334, 3937887; 271392, 3937893; 
271444, 3937905; 271556, 3937957; 271578, 3937939; 271623, 3937907; 
271635, 3937885; 271639, 3937855; 271653, 3937819; 271667, 3937785; 
271685, 3937767; 271727, 3937751; 271749, 3937735; 271761, 3937702; 
271761, 3937658; 271763, 3937582; 271765, 3937570; 271777, 3937548; 
271793, 3937526; 271843, 3937504; 271905, 3937470; 272025, 3937400; 
272087, 3937372; 272123, 3937328; 272141, 3937312; 272143, 3937294; 
272139, 3937274; 272125, 3937250; 272091, 3937212; 271995, 3937122; 
271931, 3937068; 271911, 3937040; 271901, 3937004; 271901, 3936914; 
271901, 3936848; 271903, 3936802; 271907, 3936750; 271915, 3936716; 
271935, 3936700; 271969, 3936702; 272009, 3936706; 272037, 3936694; 
272047, 3936674; 272061, 3936638; 272075, 3936580; 272067, 3936533; 
272065, 3936457; 272083, 3936371; 272089, 3936307; 272085, 3936191; 
272067, 3936127; 272067, 3936087; 272101, 3936007; 272181, 3935911; 
272241, 3935853; 272379, 3935749; 272429, 3935687; 272504, 3935603; 
272525, 3935587; 272573, 3935555; 272625, 3935533; 272669, 3935517; 
272703, 3935479; 272729, 3935427; 272763, 3935380; 272810, 3935344; 
272858, 3935316; 272864, 3935290; 272860, 3935258; 272822, 3935212; 
272790, 3935148; 272788, 3935086; 272808, 3935024; 272802, 3934974; 
272814, 3934916; 272882, 3934818; 272920, 3934764; 272964, 3934686; 
272998, 3934652; 273032, 3934632; 273064, 3934608; 273084, 3934508; 
273090, 3934444; 273126, 3934370; 273172, 3934302; 273216, 3934257; 
273234, 3934231; 273242, 3934185; 273244, 3934139; 273228, 3934101; 
273208, 3934081; 273158, 3934055; 273122, 3934045; 273076, 3934041; 
273018, 3934049; 272956, 3934067; 272940, 3934071; 272890, 3934081; 
272870, 3934079; 272850, 3934077; 272832, 3934055; 272824, 3934035; 
272828, 3933995; 272832, 3933957; 272850, 3933923; 272876, 3933881; 
272912, 3933819; 272922, 3933791; 272946, 3933753; 273012, 3933641; 
273014, 3933611; 273004, 3933579; 272980, 3933575; 272946, 3933579; 
272916, 3933593; 272898, 3933597; 272854, 3933621; 272818, 3933637; 
272800, 3933637; 272788, 3933625; 272780, 3933601; 272763, 3933575; 
272743, 3933571; 272705, 3933585; 272665, 3933669; 272445, 3933945; 
272411, 3933951; 272379, 3933963; 272317, 3933995; 272227, 3934081; 
272177, 3934169; 272139, 3934245; 272135, 3934294; 272115, 3934362; 
272063, 3934402; 272011, 3934470; 271817, 3934758; 271739, 3934912; 
271711, 3935000; 271663, 3935054; 271596, 3935112; 271514, 3935154; 
271470, 3935200; 271364, 3935298; 271310, 3935413; 271296, 3935477; 
271304, 3935523; 271304, 3935571; 271254, 3935639; 271156, 3935723; 
271082, 3935797; 271040, 3935817; 271006, 3935859; 270976, 3935873; 
270910, 3935887; 270824, 3935911; 270712, 3935979; 270624, 3936038; 
270598, 3936089; 270550, 3936181; 270528, 3936215; 270488, 3936249; 
270419, 3936275; 270327, 3936295; 270265, 3936325; 270199, 3936375; 
270135, 3936421; 270089, 3936463; 270033, 3936493; 269891, 3936500; 
269745, 3936506; 269603, 3936566; 269575, 3936586; 269523, 3936650; 
269503, 3936684; 269513, 3936714; 269557, 3936768; 269633, 3936788; 
269761, 3936784; 269835, 3936788; 270035, 3936782; 270071, 3936778; 
270153, 3936728; 270285, 3936688; 270417, 3936680; 270550, 3936690; 
270716, 3936690; 271054, 3936732; 271166, 3936772; 271242, 3936820; 
271312, 3936896; 271324, 3936926; 271314, 3936962; 271300, 3937002; 
271266, 3937064; 271260, 3937094; 271278, 3937156; 271290, 3937256; 
271286, 3937368; 271278, 3937422; 271222, 3937530; 271164, 3937596; 
271150, 3937632; 271136, 3937652; 271084, 3937668; 271038, 3937699; 
270979, 3937746; 270981, 3937783; 270987, 3937969; 270960, 3938011; 
270868, 3938143; 270728, 3938249; 270692, 3938259; 270628, 3938259; 
270606, 3938273; 270500, 3938387; 270435, 3938483; 270401, 3938521; 
270373, 3938543; 270315, 3938561; 270287, 3938569; 270113, 3938769; 
269941, 3938928; 269843, 3938962; 269715, 3939032; 269585, 3939032; 
269563, 3939032; 269543, 3939040; 269533, 3939054; 269533, 3939074; 
269543, 3939096; 269567, 3939110; 269591, 3939120; 269621, 3939122; 
269659, 3939144; 269685, 3939146; 269709, 3939138; 269741, 3939122; 
returning to 269741, 3939122.
    (ii) Note: Map 3 (Unit 2) follows:

[[Page 54011]]

[GRAPHIC] [TIFF OMITTED] TP21OC09.025

    (10) Unit 3: Kern Fan Water Recharge Area, Kern County, California.
    (i) From USGS 1:24,000 quadrangle maps Tupman, California, and 
Stevens, California, land bounded by the following UTM 11 NAD 27 
coordinates (E, N): 295516, 3908835; 295279, 3908837; 295290, 3909235; 
295839, 3909235; 295839, 3909605; 296123, 3909598; 296123, 3910008; 
296939, 3909995; 296945, 3910388; 297306, 3910388; 297306, 3910580; 
298301, 3910571; 298305, 3911170; 298614, 3911161; 298617, 3911357; 
299013, 3911357; 299021, 3911981; 300650,

[[Page 54012]]

3911934; 300666, 3912745; 301491, 3912726; 301496, 3913131; 301878, 
3913131; 301885, 3913492; 302639, 3913467; 302689, 3913456; 302875, 
3913452; 302953, 3913467; 303501, 3913456; 303499, 3913377; 303346, 
3913377; 303182, 3913345; 303096, 3913310; 302950, 3913206; 302850, 
3913113; 302800, 3913024; 302782, 3912942; 302764, 3912860; 302686, 
3912771; 302671, 3912700; 302664, 3912300; 302261, 3912303; 302250, 
3911900; 301850, 3911907; 301827, 3910972; 301270, 3910731; 301149, 
3910709; 300352, 3910586; 298760, 3909525; 298405, 3909289; 298306, 
3909259; 296918, 3909128; 295881, 3909023; 295832, 3908998; 295780, 
3908939; 295750, 3908877; 295710, 3908847; 295653, 3908837; returning 
to 295516, 3908835.
    (ii) Note: Map 4 (Unit 3) follows:

[[Page 54013]]

[GRAPHIC] [TIFF OMITTED] TP21OC09.026

    (11) Unit 4: Coles Levee Unit, Kern County, California.
    (i) From USGS 1:24,000 quadrangle maps Tupman, and Buena Vista 
Lakebed, California, land bounded by the following UTM 11 NAD 27 
coordinates (E, N): 287308, 3908077; 287165, 3908138; 287172, 3908222; 
287285, 3908192; 287341, 3908153; 287414, 3908098; 287610, 3908020; 
287614, 3907949; 287624, 3907898; 287631, 3907847; 287668, 3907818; 
287716, 3907803; 287779, 3907811; 287843, 3907787; 287915, 3907750; 
288008, 3907711; 288058, 3907689;

[[Page 54014]]

288114, 3907658; 288160, 3907643; 288138, 3907573; 288150, 3907533; 
288182, 3907490; 288229, 3907431; 288272, 3907372; 288298, 3907314; 
288284, 3907242; 288348, 3907166; 288396, 3907126; 288453, 3907045; 
288530, 3906966; 288583, 3906909; 288667, 3906812; 288705, 3906757; 
288744, 3906700; 288796, 3906619; 288848, 3906542; 288901, 3906392; 
288938, 3906357; 288998, 3906330; 289020, 3906301; 289045, 3906261; 
289081, 3906173; 289115, 3906128; 289131, 3906076; 289119, 3906028; 
289135, 3906004; 289165, 3905928; 289197, 3905879; 289271, 3905813; 
289358, 3905761; 289389, 3905735; 289480, 3905654; 289597, 3905561; 
289758, 3905425; 289910, 3905291; 290046, 3905162; 290070, 3905143; 
290115, 3904972; 290125, 3904923; 290185, 3904904; 290200, 3904868; 
290206, 3904784; 290205, 3904694; 290207, 3904637; 290218, 3904594; 
290234, 3904560; 290251, 3904514; 290244, 3904477; 290234, 3904437; 
290242, 3904380; 290275, 3904275; 290324, 3904182; 290376, 3904078; 
290418, 3903999; 290467, 3903903; 290499, 3903856; 290545, 3903769; 
290575, 3903699; 290601, 3903641; 290624, 3903595; 290673, 3903473; 
290708, 3903444; 290705, 3903422; 290695, 3903396; 290733, 3903335; 
290771, 3903227; 290793, 3903070; 290795, 3903016; 290802, 3902968; 
290815, 3902899; 290812, 3902870; 290794, 3902836; 290778, 3902637; 
290775, 3902582; 290802, 3902553; 290785, 3902492; 290764, 3902406; 
290768, 3902275; 290782, 3902151; 290776, 3902124; 290744, 3902068; 
290668, 3901981; 290608, 3901920; 290572, 3901811; 290459, 3901742; 
290454, 3901756; 290386, 3901852; 290407, 3901876; 290507, 3901957; 
290601, 3902026; 290671, 3902088; 290699, 3902164; 290699, 3902230; 
290693, 3902301; 290694, 3902410; 290690, 3902504; 290694, 3902638; 
290701, 3902789; 290711, 3902878; 290722, 3903028; 290722, 3903129; 
290696, 3903214; 290677, 3903290; 290619, 3903389; 290577, 3903475; 
290495, 3903653; 290439, 3903768; 290401, 3903848; 290347, 3903947; 
290298, 3904071; 290224, 3904237; 290169, 3904357; 290152, 3904432; 
290141, 3904507; 290139, 3904575; 290113, 3904653; 290087, 3904717; 
290060, 3904773; 290050, 3904836; 290030, 3904894; 290008, 3904975; 
289979, 3905056; 289927, 3905163; 289868, 3905242; 289805, 3905291; 
289745, 3905342; 289684, 3905386; 289617, 3905441; 289518, 3905517; 
289397, 3905610; 289269, 3905708; 289176, 3905781; 289124, 3905822; 
289088, 3905884; 289068, 3905932; 289055, 3905970; 289036, 3906012; 
289029, 3906057; 289016, 3906107; 289006, 3906162; 288994, 3906200; 
288973, 3906236; 288940, 3906273; 288835, 3906369; 288791, 3906415; 
288729, 3906457; 288672, 3906513; 288656, 3906561; 288651, 3906608; 
288641, 3906669; 288619, 3906723; 288598, 3906761; 288545, 3906827; 
288415, 3906958; 288351, 3907026; 288255, 3907123; 288204, 3907179; 
288155, 3907233; 288109, 3907278; 288080, 3907311; 288060, 3907340; 
288028, 3907386; 287992, 3907412; 287960, 3907420; 287893, 3907455; 
287829, 3907486; 287774, 3907509; 287709, 3907532; 287645, 3907569; 
287613, 3907589; 287570, 3907640; 287558, 3907682; 287537, 3907740; 
287491, 3907756; 287471, 3907781; 287449, 3907839; 287435, 3907900; 
287419, 3907959; 287365, 3908021; returning to 287308, 3908077.
    (ii)Note: Map 5 (Unit 4) follows:

[[Page 54015]]

[GRAPHIC] [TIFF OMITTED] TP21OC09.027

    (12) Unit 5: 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): 312996, 
3887027; 312953, 3887034; 312911, 3887047; 312886, 3887054; 312657, 
3887298; 313456, 3887299; 313458, 3887806; 313823, 3887799; 313823, 
3887314; 313786, 3887267; 313696, 3887224; 313618, 3887189; 313491, 
3887139; 313363, 3887112; 313298, 3887107; 313231, 3887112; 313193, 
3887142; 313168, 3887157; 313136, 3887152;

[[Page 54016]]

313091, 3887112; 313056, 3887072; returning to 312996, 3887027.
    (ii) Note: Map 6 (Unit 5) follows:
    [GRAPHIC] [TIFF OMITTED] TP21OC09.028
    

[[Page 54017]]


* * * * *

    Dated: October 7, 2009
Thomas L. Strickland
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E9-25242 Filed 10-20-09; 8:45 am]
BILLING CODE 4310-55-C