[PCA] Proposed Designation of Critical Habitat for Navarretia fossalis (spreading navarretia)

[Patricia_DeAngelis at fws.gov]

http://epa.gov/EPA-SPECIES/2005/August/Day-31/
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[Federal Register: August 31, 2005 (Volume 70, Number 168)]
[Proposed Rules]
[Page 51742-51746]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au05-40]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT86

Endangered and Threatened Wildlife and Plants; Proposed Designation of
Critical Habitat for Navarretia fossalis (spreading navarretia)

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of public comment period and notice of
availability of draft economic analysis.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the proposed designation of
critical habitat for Navarretia fossalis, and the availability of a
draft economic analysis of the proposed designation of critical
habitat. We are reopening the comment period to allow all interested
parties an opportunity to comment simultaneously on the proposed rule
and the associated draft economic analysis. Comments previously
submitted on this proposed rule need not be resubmitted as they have
already been incorporated into the public record and will be fully
considered in our final determination.

DATES: We will accept public comments and information until September
14, 2005.

ADDRESSES: Written comments and materials may be submitted to us by any
one of the following methods:
    1. You may submit written comments and information to Jim Bartel,
Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, CA 92011;
    2. You may hand-deliver written comments and information to our
Carlsbad Fish and Wildlife Office at the above address, or fax your
comments to 760/431-9624; or
    3. You may send your comments by electronic mail (e-mail) to <A HREF="
mailto:fw1cfwo_nafo at fws.gov">
fw1cfwo_nafo at fws.gov</A>. For directions on how to submit electronic
comments, see the ``Public Comments Solicited'' section. In the event
that our internet connection is not functional, please submit your
comments by the alternate methods mentioned above.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, at the above address (telephone 760/431-9440;
facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We will accept written comments and information during this
reopened comment period. We solicit comments on the original proposed
critical habitat designation, published in the Federal Register on
October 7, 2004 (69 FR 60110), and on our draft economic analysis of
the proposed designation. We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
    (1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act),
including whether the benefits of exclusion outweigh the benefits of
specifying such area as part of the critical habitat;
    (2) Specific information on the amount and distribution of
Navarretia fossalis and its habitat, and which habitat features and
geographic areas essential to the conservation of this species and why;
    (3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
    (4) Information on how many of the State and local environmental
protection measures referenced in the draft economic analysis were
adopted largely as a result of the listing of Navarretia fossalis, and
how many were either already in place or enacted for other reasons;
    (5) Any foreseeable economic, environmental, or other impacts
resulting from the proposed designation or coextensively from the
proposed listing;
    (6) Whether the draft economic analysis identifies all State and
local costs attributable to the proposed critical habitat designation,
and information on any costs that have been inadvertently overlooked;
    (7) Whether the draft economic analysis makes appropriate
assumptions regarding current practices and likely

[[Page 51743]]

regulatory changes imposed as a result of the designation of critical
habitat;
    (8) Whether the draft economic analysis correctly assesses the
effect on regional costs associated with land use controls that derive
from the designation of critical habitat;
    (9) Whether the economic analysis appropriately identifies all
costs that could result from the designation, in particular, any
impacts on small entities or families;
    (10) Whether the designation would result in disproportionate
economic impacts to specific areas that should be evaluated for
possible exclusion under 4(b)(2) of the Act from the final designation;
    (11) Whether it is appropriate that the analysis does not include
the costs of project modification that are the result of informal
consultation only;
    (12) Whether there is information about areas that could be used as
substitutes for the economic activities planned in critical habitat
areas that would offset the costs and allow for the conservation of
critical habitat areas; and
    (13) How our approach to critical habitat designation could be
improved or modified to provide for greater public participation and
understanding, or to assist us in accommodating public concern and
comments.
    All previous comments and information submitted during the initial
comment period on the proposed rule need not be resubmitted. If you
wish to comment, you may submit your comments and materials concerning
the draft economic analysis and the proposed rule by any one of several
methods (see ADDRESSES section). Our final determination regarding
designation of critical habitat for Navarretia fossalis will take into
consideration all comments and any additional information received
during both comment periods. On the basis of public comment on this
analysis and on the critical habitat proposal, and on the final
economic analysis, 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.
    Please submit electronic comments in an ASCII file and avoid the
use of any special characters or any form of encryption. Also, please
include ``Attn: Navarretia fossalis'' and your name and return address
in your e-mail message regarding the Navarretia fossalis proposed rule
or the draft economic analysis. If you do not receive a confirmation
from the system that we have received your e-mail message, please
submit your comments in writing using one of the alternate methods
described in the ADDRESSES section.
    Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address, which we will honor to the extent allowable by law.
There also may be circumstances in which we would withhold a
respondent's identity, as allowable by law. If you wish us to withhold
your name and/or address, you must state this prominently at the
beginning of your comments. However, we will not consider anonymous
comments. We will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety.
    Comments and materials received, as well as supporting
documentation used in preparation of the proposal to designate critical
habitat, will be available for public inspection, by appointment,
during normal business hours at the Carlsbad Fish and Wildlife Office
at the address listed under ADDRESSES. Copies of the proposed critical
habitat rule for Navarretia fossalis and the draft economic analysis
are also available on the Internet at <A HREF="
http://www.fws.gov/pacific/carlsbad/NAFO.htm
">http://www.fws.gov/pacific/
carlsbad/NAFO.htm</A>. In the event that our internet connection
is not functional, please obtain copies of documents directly from the
Carlsbad Fish and Wildlife Office.

Background

    On October 7, 2004, we published a proposed rule in the Federal
Register (69 FR 60110) to designate critical habitat for Navarretia
fossalis pursuant to the Act. We proposed to designate a total of
approximately 4,301 acres (ac) (1,741 hectares (ha)) of critical
habitat in San Diego and Los Angeles Counties, California. The first
comment period for the Navarretia fossalis proposed critical habitat
rule closed on December 6, 2004. For more information on this species,
refer to the final rule listing this species as threatened, published
in the Federal Register on October 13, 1998 (63 FR 54975), and the
Recovery Plan for the Vernal Pools of Southern California (Recovery
Plan) finalized on September 3, 1998 (Service 1998).
    Critical habitat is defined in section 3 of the Act as the specific
areas within the geographic 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 geographic 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 areas designated as critical habitat must consult with us on
the effects of their proposed actions, pursuant to section 7(a)(2) of
the Act.
    Section 4(b)(2) of the Act requires that we designate or revise
critical habitat on the basis of the best scientific and commercial
data available, after taking into consideration the economic impact,
impact to national security, and any other relevant impacts of
specifying any particular area as critical habitat. We have prepared a
draft economic analysis of the October 7, 2004 (69 FR 60110), proposed
designation of critical habitat for Navarretia fossalis.
    The draft economic analysis considers the potential economic
effects of actions relating to the conservation of Navarretia fossalis,
including costs associated with sections 4, 7, and 10 of the Act, and
including those attributable to designating critical habitat. It
further considers the economic effects of protective measures taken as
a result of other Federal, State, and local laws that aid habitat
conservation for Navarretia fossalis in habitat areas with features
essential to the conservation of this taxon. The analysis considers
both economic efficiency and distributional effects. In the case of
habitat conservation, efficiency effects generally reflect the
``opportunity costs'' associated with the commitment of resources to
comply with habitat protection measures (e.g., lost economic
opportunities associated with restrictions on land use). This analysis
also addresses how potential economic impacts are likely to be
distributed, including an assessment of any local or regional impacts
of habitat conservation and the potential effects of conservation
activities on small entities and the energy industry. This information
can be used by decision-makers to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
Finally, this analysis looks retrospectively at costs that have been
incurred since the date the species was listed as an endangered

[[Page 51744]]

species and considers those costs that may occur in the 20 years
following the designation of critical habitat.
    This analysis determined that costs involving conservation measures
for Navarretia fossalis would be incurred for activities involving
residential, industrial, and commercial development; water supply;
flood control; transportation; agriculture; the development of HCPs;
and the management of military bases, other Federal lands, and other
public or conservation lands.
    Pre-designation costs include those Navarretia fossalis-related
conservation activities associated with sections 4, 7, and 10 of the
Act that have accrued since the time that Navarretia fossalis was
listed as threatened (63 FR 54975; October 13, 1998), but prior to the
final designation of critical habitat. The total pre-designation costs
are estimated at $7.9 million.
    Post-designation effects would include likely future costs
associated with Navarretia fossalis conservation efforts in the 20-year
period following the final designation of critical habitat in October
2005 (effectively 2006 through 2025). If critical habitat is designated
as proposed, total costs would be expected to range between $13.9 and
$32.1 million over the next 20 years (an annualized cost of $1.3 to
$3.0 million). However, if all habitat with features essential to the
conservation of the taxon were designated critical habitat in a final
rule, total costs would be expected to range between $48.6 and $129.0
million over the next 20 years (an annualized cost of $4.6 to $12.2
million).

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues.
However, because the draft economic analysis indicates the potential
economic impact associated with a designation of all habitat with
features essential to the conservation of this species would total no
more than $12.2 million per year, we do not anticipate that this rule
would have an annual effect on the economy of $100 million or more or
affect the economy in a material way. Due to the time line for
publication in the Federal Register, the Office of Management and
Budget (OMB) did not formally review the proposed rule.

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 effects 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
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. In our proposed rule,
we withheld our determination of whether this designation would result
in a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as 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 this proposed designation of critical habitat for
Navarretia fossalis would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities (e.g., residential, industrial,
and commercial development). We considered each industry or category
individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by the designation of critical habitat.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies; non-Federal
activities are not affected by the designation.
    If this proposed critical habitat designation is made final,
Federal agencies must consult with us if their activities may affect
designated critical habitat. Consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
existing consultation process. Our analysis determined that costs
involving conservation measures for Navarretia fossalis would be
incurred for activities involving residential, industrial, and
commercial development; water supply; flood control; transportation;
agriculture; the development of HCPs; and the management of military
bases, other Federal lands, and other public or conservation lands.
    In our economic analysis of this proposed designation, we evaluated
the potential economic effects on small business entities resulting
from conservation actions related to the listing of this species and
proposed designation of its critical habitat. Critical habitat
designation is expected to result in additional costs to real estate
development projects due to mitigation and other conservation costs
that may be required. The affected land is located within Riverside,
San Diego, and Los Angeles Counties (although the proposed designation
is contained in only Los Angeles and San Diego Counties), and under
private ownership by individuals who will either undertake a
development project on their own or sell the land to developers for
development. For businesses involved with land development, the
relevant threshold for ``small'' is annual revenues of $6 million or
less. The North American Industry Classification System (NAICS) code
237210 is comprised of establishments primarily engaged in servicing
land (e.g., excavation, installing roads and utilities) and subdividing
real property into lots for subsequent sale to builders. Land
subdivision precedes actual construction, and typically includes
residential properties, but may also include industrial and commercial
properties.

[[Page 51745]]

    It is likely that development companies, the entities directly
impacted by the regulation, would not bear the additional cost of
Navarretia fossalis conservation (approximately $2.3 to $6.7 million
annualized) within the essential habitat, but pass these costs to the
landowner through a lower land purchase price. Considering
approximately 65 percent of the developable land within the essential
habitat is classified as agriculture land, it is likely that farmers
will bear some of the costs. The remaining 35 percent of the
potentially developable land is privately owned and classified as
vacant. To comply with the SBA recommendation that Federal agencies
consider impacts to entities that may be indirectly affected by the
proposed regulation, this screening level analysis presents information
on land subdivision and farming businesses for Riverside, San Diego,
and Los Angeles Counties as these are the businesses that would likely
be impacted directly or indirectly by the regulation. The majority of
the land subdivision and farming businesses within the counties are
considered small businesses.
    It is important to note that the identity and number of land
subdivision and farming businesses potentially impacted by the critical
habitat designation is not known. In addition, the identity and number
of affected businesses classified as ``small'' is also not known.
Nevertheless, the county-level information is the smallest region for
which data relevant to this analysis exist (see Table A-1 in the draft
economic analysis). This clearly over-represents the potential number
of small businesses impacted by development-related Navarretia fossalis
conservation efforts as the privately owned developable land within the
essential habitat (approximately 15,084 ac (6,104.5 ha)) comprises less
than two-tenths of one percent of the land area in the counties
(9,908,520 ac (4,009,978 ha)), and only 2,969 ac (1,201.6 ha) of this
private land is forecasted to be developed between 2006 and 2025. The
effects on small businesses in the land development sector would be
concentrated in San Diego County, where more than 65 percent of the
development is expected to take place. Within the proposed critical
habitat designation, the effects on small businesses in the land
development sector would be concentrated in Ramona, where approximately
30 percent of the development in the proposed critical habitat
designation is forecast to take place (Unit 4E).
    While the identity and number of land subdivision and farming
business impacted by the critical habitat designation is not known,
this analysis relates the economic impacts to real estate prices in the
three counties that encompass the essential habitat (see Table A-2 in
the draft economic analysis). Navarretia fossalis-related conservation
efforts are expected to cost between $390 and $11,300 per residential
dwelling unit developed, $0.81 to $5.90 per square foot of commercial
property developed, and $0.53 to $3.82 per square foot of industrial
property developed, depending on residential dwelling unit density, lot
coverage (i.e., the percent of the lot developed), and conservation and
mitigation activities required. The median sales price for single
family residences in the counties ranged from $315,000 to $460,000 in
2004, and the weighted average sales price of commercial and industrial
properties in 2004 ranged from $130 to $293 and $50 to $180 per square
foot, respectively. Thus, the economic impacts of Navarretia fossalis
conservation to the development industry are equal to 0.1 percent to
2.9 percent of the 2004 median price of a single family residence, 0.4
percent to 4.5 percent of the 2004 weighted average sales price of
commercial property, and 0.4 percent to 5.4 percent of the 2004
weighted average sales price of industrial property. These costs may be
borne by the developer or passed on to the landowner through a lower
land purchase price.
    Based on these data, we have determined that this proposed
designation would not result in a significant economic impact on a
substantial number of small entities, in particular to land developers
or farmers in Los Angeles, Riverside, or San Diego Counties. We may
also exclude areas from the final designation if it is determined that
these localized areas have an impact to a substantial number of
businesses and a significant proportion of their annual revenues. As
such, we are certifying that this proposed designation of critical
habitat would not result in a significant economic impact on a
substantial number of small entities. Please refer to Appendix A of our
draft economic analysis of this designation for a more detailed
discussion of potential economic impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is
considered a significant regulatory action under E.O. 12866 because it
raises novel legal and policy issues, but it is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant action, and no Statement of Energy
Effects is required. Please refer to Appendix A of our draft economic
analysis of this proposed designation for a more detailed discussion of
potential effects on energy supply.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''

[[Page 51746]]

    The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
    (b) As discussed in the draft economic analysis of the proposed
designation of critical habitat for Navarretia fossalis, there are 12
city governments are either adjacent to or bisect the essential
habitat: Moreno Valley (population 142,381), Perris (population
36,189), Lakeview (population 1,619), Nuevo (population 4,135),
Winchester (population 2,155), Hemet (population 58,812), Temecula
(population 57,716), San Marcos (population 54,977), Carlsbad
(population 78,247), Ramona (population 15,691), San Diego (population
1,223,400), and Chula Vista (population 173,556). Moreno Valley, Hemet,
Temecula, San Marcos, Carlsbad, San Diego, and Chula Vista exceed the
criteria (service population of 50,000 or less) for small entity.
However, there is no record of consultation between the Service and the
five remaining ``small'' governments, the City of Perris, Lakeview,
Nuevo, Winchester, and Ramona, since the Navarretia fossalis was listed
in 1998. Indeed, it is not likely that these cities would be involved
in a land development project involving a section 7 consultation,
although a city may be involved in land use planning or permitting, and
may play a role as an interested party in infrastructure projects (such
as the City of Perris with the San Jacinto River Flood Control
Project). Any cost associated with this activity/involvement is
anticipated to be a very small portion of the city's budget.
Consequently, we do not believe that the designation of critical
habitat for Navarretia fossalis will significantly or uniquely affect
these small governmental entities. As such, a Small Government Agency
Plan is not required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for Navarretia fossalis. Critical habitat
designation does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward. In
conclusion, the designation of critical habitat for Navarretia fossalis
does not pose significant takings implications.

Author

    The primary authors of this notice are the staff of the Carlsbad
Fish and Wildlife Office (see ADDRESSES section).

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

    Dated: August 23, 2005.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-17452 Filed 8-29-05; 3:05 pm]
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