[Federal Register Volume 75, Number 124 (Tuesday, June 29, 2010)]
[Proposed Rules]
[Pages 37350-37353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15452]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0079]
[MO92210-0-0009-B4]
RIN 1018-AW52


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Vermilion Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, availability of 
draft economic analysis, and amended required determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the 
availability of the draft economic analysis (DEA) for the proposed 
designation of critical habitat for the vermilion darter (Etheostoma 
chermocki) under the Endangered Species Act of 1973, as amended. We 
also announce the reopening of the comment period and an amended 
required determinations section of the proposal. The comment period is 
reopened for an additional 30 days to allow interested parties an 
opportunity to comment simultaneously on the proposed critical habitat 
designation, the associated DEA, and the amended required 
determinations section. Comments previously submitted need not be 
resubmitted and will be fully considered in preparation of the final 
rule.

DATES: Written Comments: We will consider public comments received or 
postmarked on or before July 29, 2010. Please note that if you are 
using the Federal eRulemaking Portal (see ADDRESSES section, below) the 
deadline for submitting an electronic comment is 11:59 p.m. Eastern 
Daylight Savings Time on this date.

ADDRESSES: Written Comments:You may submit comments by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R4-
ES-2009-0079.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R4-ES-2009-0079; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    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: Stephen Ricks, Field Supervisor, 
Mississippi Fish and Wildlife Office, 6578 Dogwood View Parkway, 
Jackson, MS 39213; by telephone (601-321-1122); or by facsimile (601-
965-4340). Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on the proposed designation of critical habitat 
for the vermilion darter that was published in the Federal Register on 
December 3, 2009 (74 FR 63366), the draft economic analysis (DEA) of 
the proposed designation of critical habitat for the vermilion darter, 
and the amended required determinations provided in this document. We 
will consider information and recommendations from all interested 
parties. We are particularly interested in comments concerning:
    (1) The reasons why we should or should not designate areas as 
``critical habitat'' under section 4 of the Endangered Species Act 
(Act) (16 U.S.C. 1531 et seq.), including whether there are threats to 
the vermilion darter from human activity, the degree of which can be 
expected to increase due to the designation, and whether the benefit of 
designation would outweigh threats to the species caused by the 
designation, such that the designation of critical habitat is prudent.
    (2) Specific information on:
     The amount and distribution of vermilion darter habitat;
     What areas containing physical and biological features 
essential to the conservation of the species should be included in the 
designation and why;

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     Special management considerations or protections for the 
physical and biological features essential to vermilion darter 
conservation that have been identified in the proposed rule that may be 
needed, including managing for the potential effects of climate change; 
and
     What areas not currently occupied by the species are 
essential to the conservation of the species and why.
    (3) Specific information on the vermilion darter and the physical 
and biological features essential to the conservation of the species.
    (4) Any information on the biological or ecological requirements of 
the species.
    (5) Land-use designations and current or planned activities in 
areas occupied by the species, and their possible impacts on the 
species and the proposed critical habitat.
    (6) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities and the benefits of including or excluding 
areas that are subject to these impacts.
    (7) Whether the benefits of excluding any particular area from 
critical habitat outweigh the benefits of including that area as 
critical habitat under section 4(b)(2) of the Act, after considering 
the potential impacts and benefits of the proposed critical habitat 
designation.
    (8) 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.
    You may submit your comments and materials concerning this proposed 
rule or DEA by one of the methods listed in the ADDRESSES section.
    If you submitted comments or information on the proposed critical 
habitat rule for the vermilion darter, previously published on December 
3, 2009 (74 FR 63366), you do not have to resubmit them. These comments 
are included in the public record for this rulemaking, and we will 
fully consider them in the preparation of our final determination.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including your personal identifying information--will be 
posted on the website. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so. Please 
include sufficient information with your comments to allow us to verify 
any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service's Mississippi Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed 
rule and the DEA on the Internet at http://www.regulations.gov at 
Docket Number FWS-R4-ES-2009-0079 or by mail from the Mississippi Field 
Office (see FOR FURTHER INFORMATION CONTACT section).

Background

    The vermilion darter (Etheostoma chermocki) was listed as 
endangered under the Act on November 28, 2001 (66 FR 59367). At the 
time of listing, the Service found that designation of critical habitat 
was prudent. However, due to budgetary constraints, we did not 
designate critical habitat at that time. On November 27, 2007, the 
Center for Biological Diversity filed a lawsuit against the Secretary 
of the Interior alleging that the Service failed to timely designate 
critical habitat for the vermilion darter (Center for Biological 
Diversity v. Kempthore (07-CV-2928)). In settlement agreement approved 
by the court on April 25, 2008, the Service agreed to submit to the 
Federal Register a new prudency determination, and if designation was 
found to be prudent, a proposed designation of critical habitat, by 
November 30, 2009, and a final designation by November 30, 2010. The 
Service determined that critical habitat was prudent for the vermilion 
darter and published a proposed critical habitat designation on 
December 3, 2009 (74 FR 63366).
    The vermilion darter is a narrowly endemic fish species, occurring 
in sparse, fragmented, and isolated populations. The species is only 
known in parts of the upper mainstem reach of Turkey Creek and four 
tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden 
2004, p. 520). Suitable streams have pools of moderate current 
alternating with riffles of moderately swift current, and low water 
turbidity.
    The primary threats to the species and its habitat are degradation 
of water quality and substrate components due to sedimentation and 
other pollutants, and altered flow regimes from activities such as 
construction and maintenance activities; impoundments (five within the 
Turkey Creek and Dry Creek system); instream gravel extractions; off-
road vehicle usage; road, culvert, bridge, gas, and water easement 
construction; and stormwater management (Drennen personal observation 
1999-2009; Blanco and Mayden 1999, pp. 18-20). These activities lead to 
water quality degradation and the production of pollutants (sediments, 
nutrients from sewage, pesticides, fertilizers, and industrial and 
stormwater effluents), stream channel instability, fragmentation, and 
reduced connectivity of the habitat by altering the stream banks and 
bottoms; degrading the riffles, runs, and pools; and producing changes 
in the water quantity and flow that are necessary for spawning, 
feeding, resting, and other life history functions of the species.
    We propose to designate approximately 21 kilometers (13 miles) of 
streams in 5 units as critical habitat for the vermilion darter. The 
proposed critical habitat is located within the Turkey Creek watershed 
in Jefferson County, Alabama.
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat are required to consult with us on the 
effects of their proposed actions, under section 7(a)(2) of the Act.

Possible Exclusions from Critical Habitat and Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat based upon the best scientific data available, after taking 
into consideration the economic impact, impact on national security, or 
any other relevant impact of specifying any particular area as critical 
habitat. We may exclude an area from critical habitat if we determine 
that the benefits of excluding the area outweigh the benefits of 
including the area as critical

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habitat, provided such exclusion will not result in the extinction of 
the species. We have not proposed to exclude any areas from critical 
habitat. However, the final decision on whether to exclude any areas 
will be based on the best scientific data available at the time of the 
final designation, including information obtained during the comment 
period and information about the economic impact of designation. 
Accordingly, we have prepared a draft economic analysis concerning the 
proposed critical habitat designation (DEA), which is available for 
review and comment (see ADDRESSES section).
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the vermilion darter that we published in the Federal 
Register on December 3, 2009 (74 FR 63366). The DEA describes the 
economic impacts of all potential conservation efforts for the 
vermilion darter, some of which will likely be incurred whether or not 
we designate critical habitat. The economic impact of the proposed 
critical habitat designation is analyzed by comparing scenarios both 
``with critical habitat'' and ``without critical habitat.'' The 
``without critical habitat'' scenario represents the baseline for the 
analysis, considering protections already in place for the species 
(e.g., under the Federal listing and other Federal, State, and local 
regulations). The baseline, therefore, represents the costs incurred 
regardless of whether critical habitat is designated. The ``with 
critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat, 
above and beyond the baseline costs; these are the costs we may 
consider in the final designation of critical habitat when evaluating 
the benefits of excluding particular areas under section 4(b)(2) of the 
Act. The analysis forecasts both baseline and incremental impacts 
likely to occur if we finalize the proposed designation of critical 
habitat.
    The DEA describes economic impacts of vermilion darter conservation 
efforts associated with the following categories of activity: (1) Costs 
associated with economic activities, including future development, road 
construction, wastewater treatment, stream alteration, and water 
withdrawal; and (2) costs associated with conservation activities, 
including actions associated with the Vermilion Darter Recovery Plan 
and activities that aid in preservation of the vermilion darter and the 
Turkey Creek watershed (e.g., preservation of the Turkey Creek Nature 
Preserve and the establishment of undeveloped greenways buffering the 
critical habitat and upstream tributaries). The DEA estimates the 
baseline costs associated with potential future economic activities and 
conservation activities for the vermilion darter to be $283,209 
annually over the next 25 years, assuming a 7 percent discount rate. 
The proposed critical habitat designation for the vermilion darter will 
result in minimal incremental costs because any adverse modification 
decision would likely be coincident to a jeopardy determination for the 
same action due to the species' narrow range. Therefore, the only 
incremental costs are those resulting from the additional 
administrative costs by the Service and action agency to include an 
adverse modification finding within the Biological Opinion and 
Biological Assessment as part of a formal consultation. As a result, 
the total incremental costs associated with this rule are estimated to 
be $39.24 annually over the next 25 years, assuming a 7 percent 
discount rate.
    The DEA also discusses the potential benefits associated with the 
designation of critical habitat. The primary intended benefit of 
critical habitat is to support the conservation of endangered and 
threatened species, such as the vermilion darter; however, these 
efforts preserve ecosystems that provide valuable services to the 
public and may lead to additional social welfare or market-based 
benefits. Depending on the nature of the effect, benefits are 
represented within the DEA either qualitatively, quantitatively, or as 
a monetary value.

Required Determinations--Amended

    In our December 3, 2009, proposed rule (74 FR 63366), we indicated 
that we would defer 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 became available in the DEA. We have now 
made use of the DEA data in making this determination. In this 
document, we affirm the information in our proposed rule concerning: 
E.O. 12866 (Regulatory Planning and Review), the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.), E.O. 12630 (Takings), Executive 
Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the 
Paperwork Reduction Act, the National Environmental Policy Act, the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951), and 
E.O. 13211 (Energy Supply, Distribution, and Use). However, based on 
the DEA data, we are amending our required determinations concerning 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions), 
as described below. However, no regulatory 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. 
Based on our DEA of the proposed designation, we provide our analysis 
for determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments we receive, we may revise this determination as part of a 
final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and 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

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impact is meant to apply to a typical small business firm's business 
operations.
    To determine if the proposed designation of critical habitat for 
the vermilion darter would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as residential and 
commercial development, road construction, wastewater treatment, stream 
alteration, and water withdrawal. In order to determine whether it is 
appropriate for our agency to certify that this rule would not have a 
significant economic impact on a substantial number of small entities, 
we considered each industry or category individually. In estimating the 
numbers of small entities potentially affected, we also considered 
whether their activities have any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies.
    If we finalize this proposed critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect designated critical habitat. In areas where the 
vermilion darter is present, Federal agencies are already required to 
consult with us under section 7 of the Act, due to the endangered 
status of the species. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
same consultation process.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed designation of critical habitat for the vermilion 
darter. Since the Service and action agency are the only entity with 
direct compliance costs associated with the proposed critical habitat 
designation, this rule will not result in a significant impact on small 
entities. Please refer to the DEA of the proposed critical habitat 
designation for a more detailed discussion of potential impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
reasons discussed above, and based on currently available information, 
we certify that if promulgated, the proposed designation would not have 
a significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

Author

    The primary author of this document is the staff of the Mississippi 
Fish and Wildlife Office (see ADDRESSES section).

Authority

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

    Dated: June 8, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-15452 Filed 6-28-10; 8:45 am]
BILLING CODE 4310-55-S