Fish and Wildlife Service, Interior.
Proposed rule; revision and reopening of the comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on our August 2, 2013, proposed rule to designate critical habitat for
We will consider comments received or postmarked on or before March 17, 2014. Comments submitted electronically using the Federal eRulemaking Portal (see
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(2)
We request that you send comments only by the methods described above. We will post all comments on
Edward D. Koch, State Supervisor, U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502; by telephone 775–861–6300; or by facsimile 775–861–6301. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for
(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(2) Specific information on:
(a) The amount and distribution of
(b) The areas that are currently occupied and contain features essential to the conservation of the species that we should include in the designation and why;
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) The areas not occupied at the time of listing that are essential for the conservation of the species and why.
(3) Land use designations and current or planned activities in the subject areas and their probable impacts on proposed critical habitat.
(4) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, we seek information on the benefits of including or excluding areas that exhibit these impacts.
(5) Information on the extent to which the description of economic impacts in the DEA is a reasonable estimate of the likely economic impacts.
(6) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the associated documents of the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
(7) Whether any areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
(8) 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.
If you submitted comments or information on the proposed rule (78 FR 46862) during the initial comment period from August 2, 2013, to October 1, 2013, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. Accordingly, the final decision may differ from the proposed rule, as revised by this document.
You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed listing, proposed critical habitat, and DEA, will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the proposed designation of critical habitat for
On August 2, 2013, we published a proposed rule to designate critical habitat for
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 must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
On August 2, 2013, we proposed as critical habitat for
We are now proposing to increase the designation by approximately 159 ac (65 ha) to a total of approximately 2,170 ac (879 ha). We propose this increase based on new information received from the U.S. Forest Service (Forest Service) that better defines the physical and biological features along the boundaries of these five proposed units, resulting in changes to the acreages for those units. The revised units include: Unit 9 (Stateline Road 1), Unit 10 (Stateline Road 2), Unit 12 (Black Springs), Unit 13 (Raleigh Heights), and Unit 14 (Dutch Louie Flat) (see Table 1). Apart from the acreages and ownership percentages provided in the unit descriptions in the August 2, 2013, proposed rule, the information in the unit descriptions in that proposal remains unchanged.
Section 4(b)(2) of the Act requires that we designate or revise 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 habitat, provided such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider among other factors, the additional regulatory benefits that an area would receive through the analysis under section 7 of the Act addressing the destruction or adverse modification of critical habitat as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of identifying areas containing essential features that aid in the recovery of the listed species, and any ancillary benefits triggered by existing local, State or Federal laws as a result of the critical habitat designation.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to incentivize or result in conservation; the continuation, strengthening, or encouragement of partnerships; and the implementation of a management plan. In the case of
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat 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 would not be expected without 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 use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct an optional 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from the proposed designation of critical habitat (Service 2013). The information contained in our IEM was then used to develop a screening analysis (Industrial Economics, Incorporated (IEc) 2013, 2014) of the probable effects of the designation of critical habitat for
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O.s' regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. We assess, to the extent practicable, the probable impacts, if sufficient data are available, to both directly and indirectly impacted entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for
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
In our IEM, we attempted to clarify the distinction between the effects that will result from the species being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for
The proposed critical habitat designation for
Our DEA determined that the section 7-related costs of designating critical habitat for
(1) All proposed units are considered occupied, providing baseline protection resulting from the listing of the species as threatened under the Act.
(2) Activities occurring within designated critical habitat with a potential to affect the species' habitat are also likely to adversely affect the species, either directly or indirectly.
(3) Project modifications requested to avoid adverse modification are likely to be the same as those needed to avoid jeopardy in occupied habitat.
(4) Federal agencies operating in proposed critical habitat areas are already aware of the presence of
The incremental administrative burden resulting from the designation is unlikely to reach $100 million in a given year based on the small number of anticipated consultations (i.e., less than two consultations per year) and per-consultation costs. Furthermore, it
The results of our analysis also suggest approximately 114 ac (46 ha) of private, vacant land is available for future development in the proposed critical habitat area (specifically, the Reno/Sparks metropolitan area in Washoe County); however, we note that after our analysis was completed and based on comments during the first open comment period, our revised proposed critical habitat has resulted in a total of approximately 138 ac (55 ha) of private, vacant land that may be available for future development. If public perception causes the value of critical habitat acres to be diminished, these acres are those most likely to be affected. Due to existing data limitations regarding the probability that such effects will occur, and the likely degree to which property values will be affected, we are unable to estimate the magnitude of perception-related costs that could result from the designation if finalized. However, the cost cannot exceed the total value of affected properties. Based on our analysis, the value of potentially affected parcels is unlikely to exceed $100 million.
Additional information and discussion regarding our economic analysis is available in our DEA available on the Internet at
As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule 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.
In our August 2, 2013, proposed rule (78 FR 46862), we indicated that we would defer our determination of compliance with several statutes and executive orders until we had evaluated the probable effects on landowners and stakeholders and the resulting probable economic impacts of the designation. Following our evaluation of the probable incremental economic impacts resulting from the designation of critical habitat for
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
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.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the agency is not likely to adversely modify critical habitat. Therefore, under these circumstances only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, it is our position that only Federal action agencies will be directly regulated by this designation. Federal agencies are not small entities and to this end, there is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business
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 critical habitat for
The primary authors of this notice are the staff members of the Pacific Southwest Regional Office (Region 8), with assistance from staff of the Nevada Fish and Wildlife Office, U.S. Fish and Wildlife Service.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
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 on August 2, 2013, at 78 FR 46862, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; 4201–4245, unless otherwise noted.
(a)
(5) Index map follows:
(10) Unit 6, White Lake Overlook, Sierra County, California; Unit 7, Subunit 7a, Mules Ear Flat, Sierra County, California; Unit 7, Subunit 7b, Three Pine Flat and Jeffery Pine Saddle, Washoe County, Nevada; Unit 8, Ivesia Flat, Washoe County, Nevada; Unit 9, Stateline Road 1, Washoe County, Nevada; and Unit 10, Stateline Road 2, Washoe County, Nevada: Critical habitat for
(i) Unit 6 includes 109 ac (44 ha), Subunit 7a includes 65 ac (27 ha), Subunit 7b includes 68 ac (27 ha), Unit 8 includes 62 ac (25 ha), Unit 9 includes 193 ac (78 ha), and Unit 10 includes 66 ac (27 ha).
(ii) Map of Units 6 through 10 follows:
(12) Unit 12, Black Springs and Unit 13, Raleigh Heights: Critical habitat for
(i) Unit 12 includes 163 ac (66 ha), and Unit 13 includes 253 ac (103 ha).
(ii) Map of Units 12 and 13 follows:
(13) Unit 14, Dutch Louie Flat and Unit 15, The Pines Powerline: Critical habitat for
(i) Unit 14 includes 54 ac (22 ha), and Unit 15 includes 32 ac (13 ha).
(ii) Map of Units 14 and 15 follows: