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Proposed Rule

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat and Taxonomic Revision for the Pacific Coast Population of the Western Snowy Plover

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ACTION:

Proposed rule; reopening of comment period.

SUMMARY:

We, the U.S. Fish and Wildlife Service, announce the reopening of the public comment period on the March 22, 2011, proposed revised designation of critical habitat for the Pacific Coast population of the western snowy plover (Pacific Coast WSP) (Charadrius alexandrinus nivosus) under the Endangered Species Act of 1973, as amended (Act). We are also recognizing the recent change to the taxonomy of the currently threatened taxon in which the species was split into two distinct species. We also announce the availability of a draft economic analysis (DEA) of the proposed revised designation of critical habitat for Pacific Coast WSP and an amended required determinations section of the proposal and reopening of the comment period to allow all interested parties an opportunity to comment simultaneously on the revised proposed rule, the associated DEA, and the amended required determinations section. We are also seeking comment on additional proposed revisions to Unit CA 46 in Orange County, California. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

DATES:

We will consider comments received on or before February 16, 2012. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date.

ADDRESSES:

You may submit written comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2010-0070, which is the docket number for this rulemaking.

(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2010-0070; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

We request that you send comments only by the methods described above. 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:

Nancy Finley, Field Supervisor or Jim Watkins, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; telephone (707) 822-7201; facsimile (707) 822-8411. 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 our proposed revised designation of critical habitat for the Pacific Coast WSP that was published in the Federal Register on March 22, 2011 (76 FR 16046), our DEA of the proposed revised designation, 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 revise the designation of “critical habitat” under section 4 of the 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:

(a) Areas that provide habitat for the Pacific Coast WSP that we did not discuss in the proposed revised critical habitat rule, and

(b) Areas within the geographical area occupied by the species at the time of listing that contain elements of the physical or biological features essential to the conservation of the species which may require special management considerations or protection and that we should include in the designation, and reason(s) why.

(3) Specific information on our proposed revised designation of back-dune systems and other habitats in an attempt to offset the anticipated effects of sea-level rise associated with climate change.

(4) Specific information on the Pacific Coast WSP, habitat conditions, and the presence of physical or biological features essential to the conservation of the species at any of the critical habitat units proposed in this revised rule (see Critical Habitat Units section and previous rules (64 FR 68508, December 7, 1999; 70 FR 56970, September 29, 2005; 76 FR 16046, March 22, 2011)).

(5) How the proposed revised critical habitat boundaries could be refined to more closely circumscribe the areas identified as containing the features essential to the species' conservation or how we mapped the water's edge and whether any alternative methods could be used to better determine the critical habitat boundaries.

(6) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed revised designation that are subject to these impacts.

(7) Any information regarding the areas exempted from the proposed revised rule or whether any specific areas being proposed as revised critical habitat should be excluded under section 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, including Tribal lands, within the proposed revised designation.

(8) Information on any quantifiable economic costs or benefits of the proposed revised designation of critical habitat.

(9) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed revised critical habitat.

(10) 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.

(11) Information on the extent to which the description of economic impacts in the DEA is complete and accurate.

(12) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed revised critical habitat designation.

If you submitted comments or information on the proposed rule (76 FR 16046) during the initial comment period from March 22, 2011, to May 23, 2011, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. 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.

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0070, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arcata 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 No. FWS-R8-ES-2010-0070, or by mail from the Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

Background

It is our intent to discuss only those topics directly relevant to the taxonomic name change and designation of critical habitat for Pacific Coast WSP in this document. For more background information concerning the Pacific Coast WSP, refer to the proposed revised designation of critical habitat published in the Federal Register on March 22, 2011 (76 FR 16046). For more information on the Pacific Coast WSP or its habitat, refer to the final listing rule published in the Federal Register on March 5, 1993 (58 FR 12864), which is available online at http://www.regulations.gov (at Docket Number FWS-R8-ES-2010-0070) or the Recovery Plan for the Pacific Coast WSP (Service 2007), which is online at http://ecos.fws.gov or from the Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

On March 22, 2011, we published a proposed rule to revise the designation of critical habitat for the Pacific Coast WSP (76 FR 16046). We proposed to designate approximately 28,261 acres (ac) (11,436 hectares (ha)) in 68 units located in Washington, Oregon, and California as critical habitat. That proposal opened a 60-day comment period, ending May 23, 2011. In this document we are proposing to revise the boundaries to Unit CA 46 based on new information (see Changes to Proposed Revised Critical Habitat below). We will submit for publication in the Federal Register a final critical habitat designation for the Pacific Coast WSP on or before June 12, 2012.

Taxonomic and Nomenclatural Changes Affecting Charadrius alexandrinus nivosus

We are making a technical correction to the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to reflect our acceptance of a taxonomic and nomenclatural change of western snowy plover to Charadrius nivosus nivosus from C. alexandrinus nivosus. We listed the Pacific Coast WSP as threatened under the then-recognized name of Charadrius alexandrinus nivosus (58 FR 12864; March 5, 1993), which is a subspecies of the Eurasian Kentish plover (Charadrius alexandrinus (Linnaeus 1758)). We accepted this taxonomy and have used this name in all Service documents up to and including our proposed revision to the critical habitat for the Pacific Coast WSP (76 FR 16046; March 22, 2011).

In 2009, Clemens Küpper (Department of Biology and Biochemistry, University of Bath, Bath, UK); Tamás Székely (Department of Biology and Biochemistry, University of Bath, Bath, UK); and Terry Burke (Department of Animal and Plant Sciences, University of Sheffield, Sheffield, UK), submitted a proposal to the American Ornithologist's Union (AOU)—the recognized body on ornithological naming and scientific nomenclature (AOU 2010A, pp. 145-146). The proposal presented information to split the Kentish plover from the snowy plover and adopt Kentish plover for Palaearctic populations (zoogeographical region consisting of Europe, Africa north of the Sahara, and most of Asia north of the Himalayas) and change the scientific name of the snowy plover in Central and North America to Charadrius nivosus (Cassin 1858) with three subspecies: C. nivosus nivosus (currently C. alexandrinus nivosus) (range to include all of the continental United States and portions of Mexico), C. nivosus tenuirostris (currently C. alexandrinus nivosus) (range to include Cuba, Puerto Rico, the Caribbean and the Yucatan Peninsula) and C. nivosus occidentalis (currently C. alexandrinus occidentalis) (range to include South America). The proposal cited genetic, morphological, and behavioral differences between C. alexandrinus and C. nivosus (Funk et al. 2007; Küpper et al. 2009). The proposal was adopted by the AOU (AOU 2010B, pp. 1-5; Chesser et al. 2011, pp. 603-604). We are within this proposed rule accepting the taxonomic change for the Pacific Coast WSP and recognize the listed entity as C. nivosus nivosus and will make changes to the Code of Federal Regulations in the final designation (see Proposed Regulation Promulgation section). We also make the necessary changes to the historical range of C. nivosus nivosus at 50 CFR 17.11(h) to include the entire continental United States. These technical corrections do not affect the description, distribution, or listing status of the Pacific Coast WSP. However, the complete range of C. nivosus nivosus now includes the Florida occurrences of the subspecies.

Critical Habitat

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 by the Secretary that such areas are essential for the conservation of the species. If the proposed revised 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 funding, authorizing, permitting, or proposing actions affecting critical habitat must consult with us on the effects of their actions, under section 7(a)(2) of the Act.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act requires that the Secretary shall designate and revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary of the Interior may exclude an area from critical habitat if he determines that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.

When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of the Pacific Coast WSP, the benefits of critical habitat include public awareness of the presence of the Pacific Coast WSP and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for Pacific Coast WSP due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken, authorized, or otherwise permitted by Federal agencies.

The final decision on whether to exclude any areas will be based on the best scientific and commercial 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 DEA concerning the proposed revised critical habitat designation, which is available for review and comment (see ADDRESSES section).

Draft Economic Analysis

The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed revised critical habitat designation for the Pacific Coast WSP. The DEA separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the Pacific Coast WSP (e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for the species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the DEA, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts). 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 weighing the benefits of inclusion and exclusion of particular areas under section 4(b)(2) of the Act. For a further description of the methodology of the analysis, see Chapter 2, “Framework for the Analysis,” of the DEA (Industrial Economics Incorporated (IEc) 2011).

The DEA evaluates the potential economic impacts associated with the proposed revised designation of critical habitat for the Pacific Coast WSP. The analysis focuses on reasonably foreseeable incremental impacts of the critical habitat designation, or those impacts not expected to occur absent critical habitat designation. Forecasted impacts are based on the planning periods for potentially affected projects and look out over a 20-year time horizon (through 2031). The DEA considers economic impacts of Pacific Coast WSP conservation efforts on the following activities: (1) Recreation; (2) development; (3) gravel mining; (4) military activities; and (5) habitat and species management.

Due to strong existing protections (include symbolic fencing, nest exclosures, signage, driving restrictions, and mechanized beach cleaning restrictions) for the Pacific Coast WSP, the direct incremental impacts quantified in the DEA are limited to the administrative cost of considering adverse modification during section 7 consultation with the Service as well as the additional effort necessary to include analysis of critical habitat in three future Habitat Conservation Plans and one Integrated Natural Resources Management Plan (INRMP) for Vandenberg Air Force Base (VAFB). These incremental impacts of the proposed revised critical habitat designation over the 20-year timeframe (2012 through 2031) are estimated to be $261,000 ($24,700 on an annualized basis), assuming a seven percent discount rate. Impacts to military activities represent the greatest percentage of these overall cost estimates—approximately 72 percent. Impacts to development activities represent approximately 17 percent, habitat and species management 6 percent, and mining 4 percent of the overall impacts (percentages do not sum due to rounding). Incremental impacts to recreational activities are not expected due to lack of a Federal nexus compelling section 7 consultation with the Service and significant protection already provided by existing regulations and programs (IEc 2011, pp. 4-9-4-12).

The analysis also identifies three activities that may experience indirect incremental impacts of the proposed revised critical habitat designation: Recreation at Oceano Dunes State Vehicular Recreation Area (SVRA) (Unit CA 31), development of the Sterling/McDonald site (Unit CA 22), and development of the Security National Guaranty (SNG) site (Unit CA 22). Indirect impacts resulting from future litigation or increased scrutiny from State agencies may include prohibiting off-highway-vehicle use at Oceano Dunes SVRA and denial of development permits for the Sterling/McDonald and SNG sites. Due to uncertainty surrounding the likelihood and extent of such indirect impacts, the data necessary to quantify these impacts are unavailable. Therefore, these indirect incremental impacts are discussed qualitatively in the DEA (IEc 2011, p. 4-2).

Vandenberg Air Force Base INRMP

In the March 22, 2011, proposed revised designation of critical habitat (76 FR 16046), we did not consider Vandenberg Air Force Base for exemption under section 4(a)(3) of the Act because they had not yet completed a Service-approved INRMP. On April 14, 2011, VAFB completed and we approved the INRMP for VAFB as part of the requirements of the Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) (for a full discussion of the Sikes Act, see the Exemptions section of the March 22, 2011, proposed revision to critical habitat (76 FR 16046)). The VAFB INRMP provides for the conservation, management, and stewardship of the natural resources found on the base. The INRMP includes:

(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;

(2) A statement of goals and priorities;

(3) A detailed description of management actions to be implemented to provide for these ecological needs; and

(4) A monitoring and adaptive management plan.

Because the INRMP was not finalized and approved prior to the March 22, 2011, proposed revised critical habitat designation for the Pacific Coast WSP (76 FR 16046), we did not exempt these areas prior to their proposal. We will review the INRMP and will determine in our final designation of critical habitat if the plan provides a benefit to the Pacific Coast WSP in those areas covered by the INRMP that we had determined to be essential to and for the conservation of the Pacific Coast WSP. If it does, we will exempt those areas covered by the INRMP from the final designation under the requirements of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) and section 4(a)(3)(B)(i) of the Act.

As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed revised designation, the changes contained in this NOA, and our amended required determinations. We may revise the proposed revised designation or supporting documents to incorporate or address information we receive during the public comment period. In particular, 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, provided the exclusion will not result in the extinction of this species.

Changes to Proposed Revised Critical Habitat

In this document, we are making revisions to the proposed revised critical habitat as identified and described in the proposed rule that we published in the Federal Register on March 22, 2011 (76 FR 16046) and are seeking comment on the revisions. The changes occur in what was proposed as subunits CA 46A-D (Bolsa Chica Ecological Reserve) and subunit CA 46E (Bolsa Chica State Beach) of Unit CA 46. We are also adding one subunit (subunit CA 46F) to Unit CA 46. During the public comment period for the March 22, 2011, proposed revised critical habitat (76 FR 16046), we received comments from a species expert indicating that we should reevaluate the proposed boundaries at the Bolsa Chica Ecological Reserve because certain areas included in Unit CA 46 are not utilized for nesting or foraging by the Pacific Coast WSP, whereas other areas that were not included in proposed revised critical habitat within Bolsa Chica Ecological Reserve are used for nesting and foraging (P. Knapp, pers. comm. 2011).

We also received comments and new information from California State Parks and a species expert indicating that we should reevaluate the proposed boundaries of subunit CA 46E at Bolsa Chica State Beach because the area no longer contains the physical or biological features essential to the conservation of the species, and is no longer being used for wintering by the Pacific Coast WSP and has not been used in the last 4 years (D. Prior, California State Parks, pers. comm. 2011; P. Knapp, pers. comm. 2011). The information provided indicated that areas north of the proposal in subunit CA 46E at Bolsa Chica State Beach are being used by the Pacific Coast WSP as a wintering habitat and that we should reevaluate the proposed boundaries of beach areas in Unit CA 46 (Prior, pers. comm. 2011; Knapp, pers. comm. 2011). We have reviewed the new information and have determined it appropriate to adjust our proposed revised designation of Unit CA 46.

The purpose of the revisions described below is to better delineate the areas that meet the definition of critical habitat for the Pacific Coast WSP and to ensure that all areas proposed are consistent with the criteria outlined in the proposed revised rule (see “Criteria Used To Identify Critical Habitat” section in the proposed revised critical habitat designation (76 FR 16046; March 22, 2011)). The areas added to the proposed unit are within the geographical area that was occupied by the species at the time it was listed and contain the physical or biological features essential to the conservation of the species. A revised map is included in the Proposed Regulation Promulgation section of this document. Below, we briefly describe the changes made to Unit CA 46. As a result of these revisions, the naming convention for the subunits CA 46A-E will change and an additional subunit (CA 46F) will be added. Also as a result of these revisions, the total area proposed for designation as critical habitat in Unit CA 46 is 568 ac (230 ha), an increase of 50 ac (20 ha). The change increases the total amount of proposed revised critical habitat to 30,497 ac (12,342 ha) (see Table 3 below).

Changes to Critical Habitat Unit Descriptions

Unit CA 46: Bolsa Chica State Beach and Bolsa Chica Ecological Reserve

Through this notice, we propose to exchange the naming conventions between subunits CA 46A and 46E so that the Bolsa Chica State Beach will now be part of subunit CA 46A and the Bolsa Chica Ecological Reserve will include subunits CA 46B-F. As revised here, the subunits in Bolsa Chica State Beach and Bolsa Chica Ecological Reserve are located east of the Pacific Coast Highway, in Orange County, California. As a result of this revision, the total area proposed for designation as critical habitat at Bolsa Chica State Beach (now designated as subunit CA 46A) is 93 ac (38 ha); and the total area for the Bolsa Chica Ecological Reserve subunits (now designated as subunits CA 46B-46F) is 475 ac (192 ha). These subunits are entirely owned by the State of California.

Bolsa Chica Ecological Reserve contains significant nesting and foraging areas. This location supported 47 breeding adult Pacific Coast WSP in 2009 (Knapp and Peterson 2009, p. 8). All subunits at Bolsa Chica Ecological Reserve were occupied at the time of listing and are currently occupied and annually support one of the largest breeding populations of Pacific Coast WSP in the region. The Recovery Plan for Pacific Coast WSP states that this location contributes to the conservation goal for the region by providing a management potential of 70 breeding birds (Service 2007, Appendix B). This location also supported an average wintering flock of 14 Pacific Coast WSP from 2003 through 2010 (Service unpublished data). In the proposed revised rule, we incorrectly stated that this reserve is an abandoned oil field. This reserve is in fact an active oil field that underwent significant reconstruction and restoration between 2004 and 2006, including the addition of three new nest sites and a new ocean inlet that allows the water level to rise and fall resembling the irregular semi-diurnal tidal range of southern California's ocean waters (Knapp and Peterson 2009, p. 1). Including these occupied areas for breeding, foraging, and dispersal is consistent with our criteria used to identify critical habitat, as outlined in the proposed rule (76 FR 16046; March 22, 2011). No changes were made to subunits CA 46B or CA 46D. Please see the proposed revised critical habitat for a description of these subunits (76 FR 16046; March 22, 2011).

Subunit CA 46A: Bolsa Chica State Beach

Through this notice, the proposed revised designation's subunit CA 46E is renamed as subunit CA 46A. After further analysis and review of comments received on the proposed revised designation, we have adjusted the boundary of the 8 ac (3 ha) of beach that was included in the proposed rule because the area no longer contains the physical or biological features essential to the conservation of the species, and has not supported Pacific Coast WSP for the past 4 years (Prior, pers. comm. 2011). The subunit as revised here consists of sandy beach habitat north of the critical habitat unit proposed in March 2011, and extends to just south of the Sunset Beach area near Warner Avenue adjacent to the Bolsa Chica Ecological Reserve. As a result of the revision reflected here, the area proposed for designation as critical habitat in subunit CA 46A is 93 ac (38 ha), an increase of 85 ac (35 ha) from what was proposed for Bolsa Chica State Beach in the proposed revised designation. This subunit is owned entirely by the State of California. The revised subunit CA 46A was occupied at the time of listing and is currently occupied and contains the physical or biological features that are essential to the conservation of the species, including a wide sandy beach with occasional surf-cast wrack supporting small invertebrates for foraging, and because it supports an average wintering flock of 27 Pacific Coast WSP (Service unpublished data 2003-2010) in a location with high-quality breeding habitat. Subunit CA 46A may require special management considerations or protection to address threats from recreational disturbance and beach raking as discussed for this subunit in the March 2011 proposed revised rule. Additionally, adding occupied areas for wintering, foraging, and dispersal is consistent with our criteria used to identify critical habitat, as outlined in the proposed revised rule (76 FR 16046; March 22, 2011).

Unit CA46: Bolsa Chica Ecological Reserve; Subunits CA 46C, 46E, 46F

Subunit CA 46C

We revised subunit CA 46C to include additional areas containing the physical or biological features essential to the conservation of the species for breeding, foraging, and dispersal that were not captured in the proposed revised rule. This addition is based on information received during the public comment period that indicates that these areas include year-round foraging habitat in extensive mudflats and additional nesting areas for Pacific Coast WSP to expand into. This unit was occupied at the time of listing. This location contains the physical and biological features essential to the conservation of the species, including tidally influenced estuarine mud flats supporting small invertebrates, and seasonally dry ponds that provide nesting and foraging habitat for Pacific Coast WSP. As a result of this revision, the area proposed for designation as critical habitat in subunit CA 46C is 222 ac (90 ha), an increase of 201 ac (81 ha) from the proposed rule. This location contains tidally influenced estuarine mud flats supporting small invertebrates, and seasonally dry ponds and nesting islands that provide nesting and foraging habitat for Pacific Coast WSP. The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from vegetation encroachment in nesting and foraging areas and predation of chicks and eggs.

Subunit CA 46E

Here, we rename the Bolsa Chica Ecological Reserve areas that were proposed as subunit CA 46A in the proposed revised rule to subunit CA 46E and remove the areas that do not contain the physical or biological features essential to the conservation of the species. This area was occupied at the time of listing. This revised subunit CA 46E is reduced in size to more accurately represent the nesting and foraging areas used by Pacific Coast WSP. We removed almost all of the Muted Tidal Basin area from subunit 46E because this area does not contain the physical or biological features essential to the conservation of Pacific Coast WSP. We have adjusted the boundary in the Future Full Tidal Basin to represent areas used for nesting and foraging. As a result of this revision, the area proposed for designation as critical habitat in subunit CA 46E is 247 ac (100 ha), a decrease of 237 ac (96 ha) from what was proposed as subunit CA 46A in the proposed rule. This revised location contains tidally influenced estuarine mud flats supporting small invertebrates, and seasonally dry ponds and nesting islands that provide nesting and foraging habitat for Pacific Coast WSP. The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from vegetation encroachment in nesting and foraging areas and predation of chicks and eggs.

Subunit 46F

We add one subunit (CA 46F) to represent the single nesting and foraging area utilized by Pacific Coast WSP in the Muted Tidal Basin (Nest Site 2). This area was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. This location contains tidally influenced estuarine mud flats supporting small invertebrates, and seasonally dry ponds and nesting islands that provide nesting and foraging habitat for Pacific Coast WSP. The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from vegetation encroachment in nesting and foraging areas and predation of chicks and eggs. As a result of this addition, the area proposed for designation as critical habitat in subunit CA 46F is 2 ac (1 ha).

In addition to the unit changes outlined above, we are also correcting land ownership acreage numbers identified in Table 3 of the March 22, 2011, proposed revised rule (76 FR 16046). The corrected Table 3 with changes to Unit CA-46 is below. Also, in the proposed revised rule we incorrectly stated that no Department of Defense lands were within the proposed revised designation. Approximately 1,084 ac (439 ha) have been identified on VAFB in units CA-32 and CA-33. On April 14, 2011, we approved the INRMP for VAFB and have determined that the plan provides a benefit to the species for which critical habitat is proposed for designation. We have now reviewed and approved the VAFB INRMP and will recommend that the Secretary exempt the areas determined to be essential to and for the conservation of the Pacific Coast WSP from the final designation under the requirements of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) and section 4(a)(3)(B)(i) of the Act.

Table 3—Proposed Revised Critical Habitat for the Pacific Coast WSP Showing Federal, State, Tribal, and Other (Private and Local Government) Land Ownership

Unit numberUnit nameTotalFederalTribalStateOther
achaachaachaachaacha
Washington:
WA 1Copalis Spit407165000040716500
WA 2Damon Point67327200006482622510
WA 3AMidway Beach697282000069728200
WA 3B *Shoalwater/Graveyard1,12145400336136505204280113
Unit WA-3 Totals1,818736003361361,202486280113
WA 4ALeadbetter Spit2,4639972,0268200043717700
WA 4BGunpowder Sands Island904366904366000000
Unit WA-4 Totals3,3671,3632,9301,1860043717700
WASHINGTON STATE TOTALS6,2652,5352,9301,1863361362,6941,090305123
Oregon:
OR 1Columbia River Spit1696816968000000
OR 2Necanicum River Spit211850000161655020
OR 3Nehalem River Spit299121000029912100
OR 4Bayocean Spit36714927911300008836
OR 5Netarts Spit541219000054121900
OR 6Sand Lake South2008100000020081
OR 7Sutton/Baker Beaches372151372151000000
OR 8ASiltcoos Breach156156000000
OR 8BSiltcoos River Spit2419824198000000
OR 8CDunes Overlook Tahkenitch Creek Spit716290716290000000
OR 8DNorth Umpqua River Spit236961516100853400
Unit OR-8 Totals1,2084891,12345400853400
OR 9Tenmile Creek Spit2449924499000000
OR 10Coos Bay North Spit308125308125000000
OR 11Bandon to New River1,01641145918600267108290117
OR 12 *Elk River Spit1676800000016768
OR 13Euchre Creek1164700000011647
OREGON STATE TOTALS5,2182,1122,9541,195001,353548911369
California:
CA 1Lake Earl743000002295221
CA 2Gold Bluffs Beach2359500002359500
CA 3AHumboldt Lagoons—Stone Lagoon55220000552200
CA 3BHumboldt Lagoons—Big Lagoon2711100000270109<1<1
Unit CA-3 Totals326132000032513200
CA 4AClam Beach/Little River34013800002269111446
CA 4BMad River456185000014960307124
Unit CA-4 Totals7963220000375152421170
CA 5AHumboldt Bay South Spit57723420800541219166
CA 5BEel River North Spit/Beach467189000046018673
CA 5CEel River South Spit/Beach34013800001767116466
Unit CA-5 Totals1,384560208001,17747618776
CA 6Eel River Gravel Bars2,6991,09200005912392,108853
CA 7MacKerricher Beach1,17647600001,1024467430
CA 8Manchester Beach482195682800402163125
CA 9Dillon Beach39160000003916
CA 10APt Reyes460186460186000000
CA 10BLimantour1566315663000000
Unit CA-10 Totals616249616249000000
CA 11Napa618250000061825000
CA 12Hayward1000000010
CA 13AEden Landing2379600002289283
CA 13BEden Landing1716900001716900
CA 13CEden Landing609246000060224473
Unit CA-13 Totals1,01741200001,001405156
CA 14Ravenswood89360000008936
CA 15Warm Springs1696816968000000
CA 16Half Moon Bay36150000361500
CA 17Waddell Creek Beach2510000019873
CA 18Scott Creek Beach239000015683
CA 19Wilder Creek Beach156000015600
CA 20Jetty Road to Aptos40016200003701503012
CA 21Elkhorn Slough Mudflats281114000028111400
CA 22Monterey to Moss Landing97139342417200286116261106
CA 23Point Sur Beach7229000038153414
CA 24San Carpoforo Creek2410420018731
CA 25Arroyo Laguna Creek28110000187104
CA 26San Simeon State Beach24100000241000
CA 27Villa Creek Beach208000020800
CA 28Toro Creek34140000114239
CA 29Atascadero Beach/Morro Strand SB214870000652614960
CA 30Morro Bay Beach1,078436000094938412952
CA 31Pismo Beach/Nipomo Dunes1,6556702429800553224860348
CA 32Vandenberg North711288711288000000
CA 33Vandenberg South42417237415100005020
CA 34Devereaux Beach52210000431794
CA 35Santa Barbara Beaches6526000030123514
CA 36Santa Rosa Island Beaches586237586237000000
CA 37San Buenaventura Beach69280000692800
CA 38Mandalay to Santa Clara River671272000045818521386
CA 39Ormond Beach31912900001596416065
CA 43Zuma Beach73300000107229
CA 44Malibu Beach135000013500
CA 45ASanta Monica Beach481900002912198
CA 45BDockweiler North34140000341400
CA 45CDockweiler South652600005422114
CA 45DHermosa State Beach2711000083198
Unit CA-45 Totals174700000125514920
CA 46ABolsa Chica State Beach93380000933800
CA 46BBolsa Chica Reserve2100002100
CA 46CBolsa Chica Reserve2229000002229000
CA 46DBolsa Chica Reserve2100002100
CA 46EBolsa Chica Reserve247100000024710000
CA 46FBolsa Chica Reserve2100002100
Unit CA-46 Totals568230000056823000
CA 47Santa Ana River Mouth198000018710
CA 48Balboa Beach25100000002510
CA 50ABatiquitos Lagoon2410000018762
CA 50BBatiquitos Lagoon239000015683
CA 50CBatiquitos Lagoon198000000198
Unit CA-50 Totals6627000033133313
CA 51ASan Elijo Lagoon Ecological Reserve3100003100
CA 51BSan Elijo Lagoon Ecological Reserve5200001042
CA 51CSan Elijo Lagoon Ecological Reserve7300007300
Unit CA-51 Totals156000011442
CA 52ASan Dieguito Lagoon4200000042
CA 52BSan Dieguito Lagoon3100000031
CA 52CSan Dieguito Lagoon4200004200
Unit CA-52 Totals11400004273
CA 53Los Penasquitos Lagoon32130000321310
CA 54AFiesta Island2100001010
CA 54BMariner's Point7300001062
CA 54CSouth Mission Beach38150000833012
CA 54DSan Diego River Channel512100003815135
Unit CA-54 Totals9840000048195020
CA 55BCoronado Beach74300000743000
CA 55ESweetwater Marsh National Wildlife Refuge and D Street Fill13253773100105422
CA 55FSilver Strand State Beach82337430008300
CA 55GChula Vista Wildlife Reserve104000010400
CA 55ISan Diego National Wildlife Refuge, South Bay Unit5200000052
CA 55JTijuana Estuary and Beach150617129005823218
Unit CA-55 Totals (does not include exempt sub-units)4531832229000151618032
CALIFORNIA TOTALS19,0147,6953,4361,3900010,2794,1605,3012,145
WASHINGTON, OREGON, CALIFORNIA GRAND TOTALS30,49712,3429,3203,77233613614,3265,7986,5172,637
Note: Area sizes may not sum due to rounding.

Required Determinations—Amended

In our March 22, 2011, proposed rule (76 FR 16046), 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 to make these determinations. In this document, we affirm the information in our proposed revised rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are amending our required determination 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 (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), 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). 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. The SBREFA amended the 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. Based on our DEA of the proposed revised designation, we provide our analysis for determining whether the proposed revised designation 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 our 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 impact” is meant to apply to a typical small business firm's business operations.

To determine if the proposed revised designation of critical habitat for the Pacific Coast WSP would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as development, recreation, habitat management or restoration activities (IEc 2011, p. A-5). In order to determine whether it is appropriate for our agency to certify that this proposed 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. In areas where the Pacific Coast WSP is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed revised critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed revised designation of critical habitat for the Pacific Coast WSP. The Service and the action agency are the only entities with direct compliance costs associated with this proposed revised critical habitat designation, although small entities may participate in section 7 consultation as a third party. It is, therefore, possible that the small entities may spend additional time considering critical habitat during section 7 consultation for the Pacific Coast WSP. The DEA indicates that the incremental impacts potentially incurred by small entities are limited to two private developers working through the Sand City Redevelopment Agency at the Sterling-McDonald site (Unit CA 22) and Security National Guaranty (SNG) (Unit CA 22). The indirect incremental impacts resulting from development of the Sterling-McDonald and the Security National Guaranty (SNG) site (Unit CA 22) result from potential denial of development permits for the Sterling-McDonald and SNG sites by the California Coastal Commission (CCC). Both projects have been in planning for numerous years, and previous applications for development permits from the CCC have been denied due to being in noncompliance with the California Coastal Act of 1976. The projects have been subsequently modified to decrease impacts to coastal resources, and proponents are again seeking CCC approval. Because the project modifications have not yet been reviewed by the CCC, there is still some uncertainty as to whether the projects will be allowed to move forward at this time and thus result in the potential incremental impacts identified in the DEA.

The Sterling-McDonald site plan calls for a 342 unit coastal resort. The project has been in planning since the 1990s and an Environmental Impact Report (EIR) under the California Environmental Quality Act (CEQA) is currently under development on the project's current design. Project proponents expect the EIR to be completed in 2012.

The 39-ac (16-ha) SNG site is also planned for a mixed-use resort and will include up to 341 units. The proposed project has completed an EIR under CEQA and as part of local and State permitting processes, SNG has prepared a detailed habitat protection plan (HPP) for the site. The HPP evaluates and proposes mitigation for potential impacts to biological resources, including the Pacific Coast WSP and its habitat. Two other federally listed species occur at the project site including the endangered Smith's blue butterfly (Euphilotes enoptes smithi) (with proposed critical habitat: 42 FR 7972; February 8, 1977) and threatened Monterey spineflower (Chorizanthe pungens var. pungens) with final critical habitat (73 FR 1525; January 9, 2008). The HPP also includes proposed mitigation for these two species. The HPP has been reviewed by the local jurisdictions and has been subject to public review as part of the CCC hearing process in December 2009. Project proponents anticipate that the CCC will conditionally approve the final resort design on adoption and implementation of the HPP. Final approval of the HPP by CCC is anticipated prior to the issuance of the final revised critical habitat designation for the Pacific Coast WSP.

The process for the CCC to issue permits for coastal development projects involves the development of Local Coastal Programs (LCPs) by cities and counties. LCPs are basic planning tools used by local governments to guide development in the coastal zone, in partnership with the CCC. After an LCP has been certified by the CCC to be in compliance with the Coastal Act requirements, the coastal permitting authority over most new development is transferred to the local government. As of 2008, approximately 72 percent of the LCPs have been certified by the CCC, representing close to 90 percent of the geographic area of the coastal zone. Unit CA-22 for the Pacific Coast WSP falls within the City of Sand City LCP which includes the coastal areas near the City of Sand City south to Bay Avenue in Monterey County, California. Since 2004, when the City of Sand City LCP was approved by the CCC, the City of Sand City issued a total of 107 permits for development projects or other construction activity affecting coastal resources within the LCP (CCC 2010, pp. Part 3 16-17). The two small businesses represent less than 2 percent of the total number of actions permitted regionally by the City of Sand City and certified by the CCC.

Due to the uncertainty of the status of the two projects, the extent of their indirect impacts, and the unavailability of data necessary to quantify impacts, the DEA does not quantify, but qualitatively discusses, these potential indirect impacts (IEc 2011, p. A-5). Please refer to the DEA of the proposed revised critical habitat designation for a more detailed discussion of potential economic impacts.

Our analysis constitutes an evaluation of not only potentially directly affected parties, but those also potentially indirectly affected. Under the RFA and following recent case law, we are only required to evaluate the direct effects of a regulation to determine compliance. Because the regulatory effect of critical habitat is through section 7 of the Act which applies only to Federal agencies, we have determined that only Federal agencies are directly affected by this rulemaking. Other entities, such as small businesses, are only indirectly affected. However, to better understand the potential effects of a designation of critical habitat, we frequently evaluate the potential impact to those entities that may be indirectly affected, as was the case for this rulemaking. In doing so, we focus on the specific areas being designated as critical habitat and compare the number of small business entities potentially affected in that area with other small business entities in the regional area, versus comparing the entities in the area of designation with entities nationally—which is more commonly done. This results in an estimation of a higher proportion of small businesses potentially affected. In this rulemaking, we calculate that the proportion of small businesses potentially affected is less than 2 percent of those regionally. If we were to calculate that value based on the proportion nationally, then our estimate would be significantly lower than 1 percent.

Following our evaluation of potential effects to small business entities from this rulemaking, we do not believe that the two small businesses or less than 2 percent of the small businesses in the affected sector represents a substantial number. However, we recognize that the potential effects to these small businesses may be significant due to not quantifying the potential economic impacts. We will further evaluate the potential effects to these small businesses as we develop our final rulemaking.

In summary, we have considered whether the proposed revised 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. We have identified two small entities that may be impacted by the proposed revised critical habitat designation. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed revised critical habitat 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.

Authors

The primary authors of this notice are the staff members of the Arcata Fish and Wildlife Office, Region 8, U.S. Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17

Proposed Regulation Promulgation

Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 76 FR 16046, March 22, 2011, as follows:

PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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. In § 17.11(h), revise the entry for “Plover, western snowy” under “BIRDS” in the List of Endangered and Threatened Wildlife to read as follows:

Endangered and threatened wildlife.
* * * * *

(h) * * *

SpeciesHistoric rangeVertebrate population where endangered or threatenedStatusWhen listedCritical habitatSpecial rules
Common nameScientific name
*         *         *         *         *         *         *
Birds
*         *         *         *         *         *         *
Plover, western snowyCharadrius nivosus nivosusU.S.A. (AZ, CA, CO, KS, NM, NV, OK, OR, TX, UT, WA), MexicoU.S.A. (CA, OR, WA), Mexico (within 50 miles of Pacific coast).T49317.95(b)NA
*         *         *         *         *         *         *

3. Amend § 17.95(b), in the entry for “Western Snowy Plover (Charadrius nivosus nivosus)—Pacific Coast Population” by redesignating paragraphs (87) through (108) as paragraphs (88) through (109) and revising paragraphs (82) through (86) and adding a new paragraph (87) to read as set forth below:

Critical habitat—fish and wildlife.
* * * * *

(b) Birds.

* * * * *

Western Snowy Plover (Charadrius nivosus nivosus)—Pacific Coast Population.

* * * * *

(82) Subunit CA 46A: Bolsa Chica State Beach, Orange County, California.

(i) [Reserved for textual description of Subunit CA 46A: Bolsa Chica State Beach, Orange County, California]

(ii) Note: Subunit CA 46A: Bolsa Chica Beach, Orange County, California, is depicted on the map in paragraph (87)(ii) of this entry.

(83) Subunit CA 46B: Bolsa Chica Reserve, Orange County, California.

(i) [Reserved for textual description of Subunit CA 46B: Bolsa Chica Reserve, Orange County, California]

(ii) Note: Subunit CA 46B: Bolsa Chica Reserve, Orange County, California, is depicted on the map in paragraph (87)(ii) of this entry.

(84) Subunit CA 46C: Bolsa Chica Reserve, Orange County, California.

(i) [Reserved for textual description of Subunit CA 46C: Bolsa Chica Reserve, Orange County, California]

(ii) Note: Subunit CA 46C: Bolsa Chica Reserve, Orange County, California, is depicted on the map in paragraph (87)(ii) of this entry.

(85) Subunit CA 46D: Bolsa Chica Reserve, Orange County, California.

(i) [Reserved for textual description of Subunit CA 46D: Bolsa Chica Reserve, Orange County, California]

(ii) Note: Subunit CA 46D: Bolsa Chica Reserve, Orange County, California, is depicted on the map in paragraph (87)(ii) of this entry.

(86) Subunit CA 46E: Bolsa Chica Reserve, Orange County, California.

(i) [Reserved for textual description of Subunit CA 46D: Bolsa Chica Reserve, Orange County, California]

(ii) Note: Subunit CA 46E: Bolsa Chica Reserve, Orange County, California, is depicted on the map in paragraph (87)(ii) of this entry.

(87) Subunit CA 46F: Bolsa Chica Reserve, Orange County, California.

(i) [Reserved for textual description of Subunit CA 46F: Bolsa Chica Reserve, Orange County, California]

(ii) Note: Map of Subunits CA 46A-46F: Bolsa Chica State Beach and Bolsa Chica Reserve, Orange County, California, follows:

* * * * *

Dated: January 4, 2012.

Eileen Sobek,

Acting Assistant Secretary for Fish and Wildlife and Parks.

BILLING CODE 4310-55-P

[FR Doc. 2012-521 Filed 1-13-12; 8:45 am]

BILLING CODE 4310-55-C