<br><font size=2 face="sans-serif">Comments accepted through: June 30,
2006. See questions, below.</font>
<br>
<br><font size=2 face="sans-serif">For full notice, see: </font><font size=2><tt>http://epa.gov/EPA-SPECIES/2006/June/Day-15/
<br>
=======================================================================<br>
<br>
<br>
[Federal Register: June 15, 2006 (Volume 71, Number 115)]<br>
[Proposed Rules]<br>
[Page 34566-34570]<br>
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]<br>
[DOCID:fr15jn06-16]<br>
<br>
=======================================================================<br>
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<br>
DEPARTMENT OF THE INTERIOR<br>
Fish and Wildlife Service<br>
50 CFR Part 17<br>
RIN 1018-AT91<br>
<br>
Endangered and Threatened Wildlife and Plants; Proposed <br>
Designation of Critical Habitat for the Fender's Blue Butterfly <br>
(Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii <br>
(Kincaid's Lupine), and Erigeron decumbens var. decumbens (Willamette <br>
Daisy)<br>
<br>
AGENCY: Fish and Wildlife Service, Interior.<br>
ACTION: Proposed rule; reopening of comment period and notice of <br>
availability of draft economic analysis.<br>
<br>
-----------------------------------------------------------------------<br>
<br>
SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
<br>
of the public comment period on the proposal to designate critical <br>
habitat for the Fender's blue butterfly (Icaricia icarioides fenderi, <br>
Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), and Erigeron <br>
decumbens var. decumbens (Willamette daisy) and the availability of the
<br>
draft economic analysis of the proposed designation of critical <br>
habitat. The draft economic analysis has been completed and we are <br>
publishing a notice of availability in the Federal Register and <br>
requesting comments. The economic analysis for the prairie species <br>
concluded that the potential future costs associated with conservation
<br>
activities for the species are estimated to range from $25.3 to $52.7 <br>
million over 20 years in undiscounted 2006 dollars. Costs are estimated
<br>
to range from $19.1 to $40.3 million over 20 years, or $1.3 to 2.7 <br>
million annually using a three percent discount rate. Costs are <br>
estimated to range from $15.3 to $32.6 million over 20 years, or $1.4 <br>
to $3.1 annually using a seven percent discount rate. The<br>
<br>
[[Page 34567]]<br>
<br>
activities affected by species conservation efforts may include <br>
development, management of public and conservancy lands <br>
(``conservation''), transportation operations, and the Benton County <br>
Habitat Conservation Plan (HCP). We are reopening the comment period to
<br>
allow all interested parties to comment simultaneously on the proposed
<br>
rule and the associated draft economic analysis. Comments previously <br>
submitted need not be resubmitted as they will be incorporated into the
<br>
public record as part of this comment period, and will be fully <br>
considered in preparation of the final rule.<br>
<br>
DATES: We will accept public comments until June 30, 2006.<br>
<br>
ADDRESSES: Written comments and materials may be submitted to us by any
<br>
one of the following methods:<br>
(1) Mail: You may submit written comments and information
to Kemper <br>
McMaster, Field Supervisor, U.S. Fish and Wildlife Service, Oregon Fish
<br>
and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR <br>
97266.<br>
(2) Delivery: You may hand-deliver written comments to our
Oregon <br>
Fish and Wildlife Office, at the above address.<br>
(3) Fax: You may fax your comments to 503/231-6195.<br>
(4) E-mail: You may send comments by electronic mail (e-mail)
to <A HREF="mailto:<br>
fw1willamettech@fws.gov"><br>
fw1willamettech@fws.gov</A>. Please see the Public Comments Solicited
<br>
section below for file format and other information about electronic <br>
filing.<br>
(5) Federal eRulemaking portal: <A HREF="http://www.regulations.gov">http://www.regulations.gov</A>.
Follow <br>
the instructions found there for submitting comments.<br>
<br>
FOR FURTHER INFORMATION CONTACT: Kemper McMaster, Field Supervisor, <br>
U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 <br>
SE 98th Avenue, Suite 100, Portland, OR 97266 (telephone 503/231-6179;
<br>
facsimile 503/231-6195).<br>
<br>
SUPPLEMENTARY INFORMATION:<br>
<br>
Public Comments Solicited<br>
<br>
We are soliciting comments on the original proposed critical
<br>
habitat designation that was published in the Federal Register on <br>
November 2, 2005 (70 FR 66492) and on our draft economic analysis of <br>
the proposed designation. Copies of the proposed rule to designate <br>
critical habitat and the draft economic analysis are available on the <br>
Internet at: <A HREF="http://www.fws.gov/oregonfwo/Species/ESA-Actions/WillValleyPage.asp">http://www.fws.gov/oregonfwo/Species/ESA-Actions/WillValleyPage.asp</A><br>
or from our Oregon Fish and Wildlife Office at the <br>
address and contact numbers above. We are particularly interested in <br>
comments concerning:<br>
(1) The reasons any habitat should or should not be determined
to <br>
be critical habitat as provided by section 4 of the Endangered Species
<br>
Act of 1973, as amended (Act) (16 U.S.C. 1531 et al.), including <br>
whether it is prudent to designate critical habitat.<br>
(2) Specific information on the Fender's blue butterfly,
Lupinus <br>
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens and <br>
their habitat, and which habitat or habitat components (i.e., physical
<br>
and biological features) are essential to their conservation, such as <br>
soil moisture gradient, microsite preferences, and light requirements;<br>
(3) Specific information on: the amount and distribution
of the <br>
Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, and <br>
Erigeron decumbens var. decumbens habitat; what areas should be <br>
included in the designations that were occupied at the time of listing
<br>
and contain the features that are essential to the conservation of the
<br>
species and why; what areas were not occupied at the time of listing <br>
but are essential to the conservation of the species and why;<br>
(4) Land use designations and current or planned activities
in the <br>
subject areas and their possible impacts on proposed critical habitat;
<br>
we specifically solicit information including:<br>
(a) The benefits provided by a management plan; specifically
<br>
describe how the plan addresses each primary constituent element (PCE)
<br>
in the absence of designated critical habitat; describe conservation <br>
benefits to Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii,
<br>
or Erigeron decumbens var. decumbens; include citations that point to <br>
the certainty of implementation of those aspects of the management <br>
plans;<br>
(b) The benefits of excluding from the critical habitat designation
<br>
the areas covered by the management plan; we are especially interested
<br>
in knowing how partnerships may be positively or negatively affected by
<br>
a designation, or through exclusion from critical habitat, and costs <br>
associated with designation; and<br>
(c) With specific reference to section 4(a)(3) of the Act,
we <br>
request information from the Department of Defense to assist the <br>
Secretary of the Interior in making a determination as to whether any <br>
proposed critical habitat overlaps with lands, administered by or under
<br>
the control of the Department of Defense, covered by an Integrated <br>
Natural Resources Management Plan (INRMP) that benefits the <br>
conservation of the species;<br>
(5) Any foreseeable economic, national security, or other
potential <br>
impacts resulting from the proposed designation and, in particular, any
<br>
impacts on small entities;<br>
(6) Whether our approach to designating critical habitat
could be <br>
improved or modified in any way to provide for greater public <br>
participation and understanding, or to assist us in accommodating <br>
public concerns and comments;<br>
(7) Whether the economic analysis adequately addresses the
likely <br>
effects and resulting costs arising from State laws as a result of the
<br>
proposed critical habitat designation;<br>
(8) Whether the analysis adequately addresses the indirect
effects;<br>
(9) Whether the analysis accurately defines and captures
<br>
opportunity costs;<br>
(10) Whether the economic analysis correctly assesses the
effect on <br>
regional costs (e.g., housing costs) associated with land use controls
<br>
that could arise from the designation of critical habitat for these <br>
three species;<br>
(11) Whether the designation of critical habitat will result
in <br>
disproportionate economic or other impacts to specific areas that <br>
should be evaluated for possible exclusion from the final designation;<br>
(12) Whether the economic analysis is consistent with the
Service's <br>
listing regulations because this analysis should identify all costs <br>
related to the designation of critical habitat for these three species;
<br>
and,<br>
(13) Whether the benefits of exclusion in any particular
area <br>
outweigh the benefits of inclusion under Section 4(b)(2) of the Act.<br>
All previous comments and information submitted during the
initial <br>
comment period need not be resubmitted. Our final determination on the
<br>
proposed critical habitat will take into consideration all comments and
<br>
any additional information received. However, we will not consider <br>
anonymous comments.<br>
Please submit electronic comments in an ASCII file format
and avoid <br>
the use of special characters and encryption. Please also include ``RIN
<br>
1018-AT91'' and your name and return address in your e-mail message. If
<br>
you do not receive a confirmation from the system that we have received
<br>
your e-mail message, please contact us directly (see ADDRESSES <br>
section). Please note that the Internet address <A HREF="mailto:fw1willamettech@fws.gov">fw1willamettech@fws.gov</A>
<br>
will be unavailable at the termination of the public comment period.<br>
Our practice is to make comments, including names and home
<br>
addresses of respondents, available for public review<br>
<br>
[[Page 34568]]<br>
<br>
during regular business hours. We will not consider anonymous comments
<br>
and we will make all comments available for public inspection in their
<br>
entirety. Comments and materials received will be available for public
<br>
inspection, by appointment, during normal business hours in the U.S. <br>
Fish and Wildlife Service Office at the above address.<br>
<br>
Background<br>
<br>
On November 2, 2005, we published a proposed rule in the
Federal <br>
Register (70 FR 66492) to designate approximately 3,089 acres (1,250 <br>
hectares (ha)) as critical habitat for Fender's blue butterfly, 724 <br>
acres (293 ha) as critical habitat for Lupinus sulphureus ssp. <br>
kincaidii, and 718 acres (291 ha) as critical habitat for Erigeron <br>
decumbens var. decumbens. The proposed critical habitat is located in <br>
Polk, Benton, Yamhill, Lane, Marion, Linn, and Douglas Counties, <br>
Oregon, and Lewis County, Washington. The original comment period on <br>
the proposed critical habitat rule closed on January 3, 2006. On April
<br>
21, 2006, we published a notice in the Federal Register (71 FR 20636) <br>
to reopen the comment period and provide notice of a public hearing; <br>
the comment period closed on May 19, 2006.<br>
Critical habitat is defined in section 3 of the Act as the
specific <br>
areas within the geographic area occupied by a species, at the time it
<br>
is listed in accordance with the Act, on which are found those physical
<br>
or biological features essential to the conservation of the species and
<br>
that may require special management considerations or protection; and <br>
specific areas outside the geographic area occupied by a species at the
<br>
time it is listed, upon a determination that such areas are essential <br>
for the conservation of the species. If the proposed rule is made <br>
final, section 7 of the Act will prohibit destruction or adverse <br>
modification of critical habitat by any activity funded, authorized, or
<br>
carried out by any Federal agency. Federal agencies proposing actions <br>
affecting areas designated as critical habitat must consult with us on
<br>
the effects of their proposed actions, pursuant to section 7(a)(2) of <br>
the Act.<br>
Section 4(b)(2) of the Act requires that we designate or
revise <br>
critical habitat based upon the best scientific and commercial data <br>
available, after taking into consideration the economic or any other <br>
relevant impact of specifying any particular area as critical habitat.
<br>
Based upon the previously published proposal to designate critical <br>
habitat for the Fender's blue butterfly, Lupinus sulphureus ssp. <br>
kincaidii, and Erigeron decumbens var. decumbens, we have prepared a <br>
draft economic analysis of the proposed critical habitat designation.<br>
The draft economic analysis addresses the impacts of conservation
<br>
efforts for these three species on activities occurring on lands <br>
proposed for designation as well as those proposed for exclusion. The <br>
analysis measures lost economic efficiency associated with land <br>
development activities, transportation operations, conservation-<br>
oriented land management on public and private lands, development of <br>
the Benton County Habitat Conservation Plan, and administrative costs <br>
related to the section 7 consultation process.<br>
The draft economic analysis considers the potential economic
<br>
effects of actions relating to the conservation of the Fender's blue <br>
butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens <br>
var. decumbens, including costs associated with sections 4, 7, and 10 <br>
of the Act, and including those attributable to designating critical <br>
habitat. It further considers the economic effects of protective <br>
measures taken as a result of other Federal, State, and local laws that
<br>
aid habitat conservation for the Fender's blue butterfly, Lupinus <br>
sulphureus ssp. kincaidii and Erigeron decumbens var. decumbens in <br>
essential habitat areas. The analysis considers both economic <br>
efficiency and distributional effects. In the case of habitat <br>
conservation, efficiency effects generally reflect the ``opportunity <br>
costs'' associated with the commitment of resources to comply with <br>
habitat protection measures (e.g., lost economic opportunities <br>
associated with restrictions on land use). The study also analyzes <br>
whether a particular group or economic sector bears an undue proportion
<br>
of the impacts, with specific analysis of the impacts to small entities
<br>
and potential impacts on energy availability. Finally, this analysis <br>
estimates economic impacts to activities from 2000 (the year of the <br>
final listing for the species) to 2026 (20 years from the year of final
<br>
designation of critical habitat). Forecasts of economic conditions and
<br>
other factors beyond the next 20 years would be speculative.<br>
We solicit data and comments from the public on the draft
economic <br>
analysis, as well as on all aspects of the proposal to designate <br>
critical habitat. We may revise the proposal, or its supporting <br>
documents, to incorporate or address new information received during <br>
the comment period. In particular, we may exclude an area from critical
<br>
habitat if we determine that the benefits of excluding the area <br>
outweigh the benefits of including the area as critical habitat, <br>
provided such exclusion will not result in the extinction of the <br>
species.<br>
Costs related to conservation activities for the proposed
<br>
designation of critical habitat for Fender's blue butterfly, Lupinus <br>
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens <br>
pursuant to sections 4, 7, and 10 of the Act are estimated to be <br>
approximately $25.3 to $52.7 million over 20 years in undiscounted 2006
<br>
dollars. Costs are estimated to range from $19.1 to $40.3 million over
<br>
20 years, or $1.3 to 2.7 million annually using a three percent <br>
discount rate. Cost estimates using a seven percent discount rate range
<br>
from $15.3 to $32.6 million over 20 years, or $1.4 to $3.1 annually.<br>
<br>
Required Determinations--Amended<br>
<br>
Regulatory Planning and Review<br>
<br>
In accordance with Executive Order 12866, this document is
a <br>
significant rule because it may raise novel legal and policy issues. On
<br>
the basis of our draft economic analysis, the designation of critical <br>
habitat for these species is not anticipated to have an annual effect <br>
on the economy of $100 million or more or affect the economy in a <br>
material way. Due to the timeline for publication in the Federal <br>
Register, the Office of Management and Budget (OMB) has not formally <br>
reviewed the proposed rule.<br>
Further, Executive Order 12866 directs Federal Agencies <br>
promulgating regulations to evaluate regulatory alternatives (Office of
<br>
Management and Budget, Circular A-4, September 17, 2003). Pursuant to <br>
Circular A-4, once it has been determined that the Federal regulatory <br>
action is appropriate, the agency will then need to consider <br>
alternative regulatory approaches. Since the determination of critical
<br>
habitat is a statutory requirement pursuant to the Endangered Species <br>
Act of 1973, as amended, we must then evaluate alternative regulatory <br>
approaches, where feasible, when promulgating a designation of critical
<br>
habitat.<br>
In developing our designations of critical habitat, we consider
<br>
economic impacts, impacts to national security, and other relevant <br>
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
<br>
allowable under this provision, we may exclude any particular area from
<br>
the designation of critical habitat providing that the benefits of such
<br>
exclusion outweigh the benefits of specifying the area as critical <br>
habitat and that such exclusion would not result in the extinction of <br>
the species. As such, we believe that the evaluation of the inclusion <br>
or exclusion of particular areas, or combination<br>
<br>
[[Page 34569]]<br>
<br>
thereof, in a designation constitutes our regulatory alternative <br>
analysis.<br>
<br>
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)<br>
<br>
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as <br>
amended by the Small Business Regulatory Enforcement Fairness Act <br>
(SBREFA) of 1996), whenever an agency is required to publish a notice <br>
of rulemaking for any proposed or final rule, it must prepare and make
<br>
available for public comment a regulatory flexibility analysis that <br>
describes the effect of the rule on small entities (i.e., small <br>
businesses, small organizations, and small government jurisdictions). <br>
However, no regulatory flexibility analysis is required if the head of
<br>
an agency certifies the rule will not have a significant economic <br>
impact on a substantial number of small entities. In our proposed rule,
<br>
we withheld our determination of whether this designation would result
<br>
in a significant effect as defined under SBREFA until we completed our
<br>
draft economic analysis of the proposed designation so that we would <br>
have the factual basis for our determination.<br>
According to the Small Business Administration (SBA), small
<br>
entities include small organizations, such as independent nonprofit <br>
organizations, and small governmental jurisdictions, including school <br>
boards and city and town governments that serve fewer than 50,000 <br>
residents, as well as small businesses (13 CFR 121.201). Small <br>
businesses include manufacturing and mining concerns with fewer than <br>
500 employees, wholesale trade entities with fewer than 100 employees,
<br>
retail and service businesses with less than $5 million in annual <br>
sales, general and heavy construction businesses with less than $27.5 <br>
million in annual business, special trade contractors doing less than <br>
$11.5 million in annual business, and agricultural businesses with <br>
annual sales less than $750,000. To determine if potential economic <br>
impacts to these small entities are significant, we considered the <br>
types of activities that might trigger regulatory impacts under this <br>
designation as well as types of project modifications that may result.
<br>
In general, the term significant economic impact is meant to apply to a
<br>
typical small business firm's business operations.<br>
To determine if this proposed designation of critical habitat
for <br>
Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, and <br>
Erigeron decumbens var. decumbens would affect a substantial number of
<br>
small entities, we considered the number of small entities affected <br>
within particular types of economic activities (e.g., residential and <br>
commercial development, forestry, and agriculture). We considered each
<br>
industry or category individually to determine if certification is <br>
appropriate. In estimating the numbers of small entities potentially <br>
affected, we also considered whether their activities have any Federal
<br>
involvement; some kinds of activities are unlikely to have any Federal
<br>
involvement and so will not be affected by the designation of critical
<br>
habitat. Designation of critical habitat only affects activities <br>
conducted, funded, permitted or authorized by Federal agencies; non-<br>
Federal activities are not affected by the designation.<br>
If this proposed critical habitat designation is made final,
<br>
Federal agencies must consult with us if their activities may affect <br>
designated critical habitat. Consultations to avoid the destruction or
<br>
adverse modification of critical habitat would be incorporated into the
<br>
existing consultation process.<br>
In our economic analysis of this proposed designation, we
evaluated <br>
the potential economic effects on small business entities resulting <br>
from conservation actions related to the listing of these three species
<br>
and proposed designation of critical habitat. We determined from our <br>
analysis that the small business entities that may be affected are <br>
agriculture and forestry. Approximately 85 percent (i.e., 1,794 acres <br>
(726 ha)) of the estimated 2,120 acres (858 ha) of privately owned land
<br>
within the proposed critical habitat designation is classified as <br>
agricultural land. The remaining 327 acres (132 ha) is classified as <br>
various types of forest land, most of which is white oak forest, which
<br>
has no commercial value.<br>
On the basis of our analysis of Fender's blue butterfly,
Lupinus <br>
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens <br>
conservation measures, we determined that approximately 195 small <br>
agriculture operations could be impacted by conservation measures for <br>
these three species. These agriculture operations represent <br>
approximately 1.2 percent of the number of small farms and ranches <br>
operating within the eight counties that encompass the proposed <br>
critical habitat designation. The percent of small agriculture <br>
operations impacted ranges from a low of approximately 0.1 percent in <br>
Marion and Lewis counties to a high of 4.6 percent in Benton County. <br>
The conservation measures for the three species are not expected to <br>
impact the profitability of these small agriculture operations, as the
<br>
existing agricultural use of the privately owned lands that encompass <br>
the proposed critical habitat designation is not likely to be impacted.<br>
Based on the past and existing land use, it appears the <br>
agricultural value of these lands is as grassland/pasture, and <br>
livestock grazing, if not intensive, would not further degrade or <br>
destroy the prairie habitat. While farm profits are not expected to be
<br>
affected by species conservation, impacted small agriculture businesses
<br>
are expected to lose between $383 (Douglas County) and $118,785 <br>
(Yamhill County) in land value per farm due to species conservation. <br>
Considering that the average market value of a farm's assets (i.e., <br>
land, buildings, machinery, and equipment) in the affected counties <br>
ranges from approximately $375,000 (Lewis County) to $650,000 (Marion,
<br>
Polk, Yamhill, and Linn counties), the economic impacts of species <br>
conservation to the small agriculture operator is expected to range <br>
from as little as 0.1 percent (Douglas and Linn counties) of the value
<br>
of an operator's farm assets to as much as 18.2 percent (Yamhill <br>
County) of an operator's farm assets. The 16 small agriculture <br>
operators in Yamhill County are expected to bear the greatest impacts <br>
(1.5 to 18.2 percent of the value of farm assets) followed by the 28 <br>
operators in Polk County (1.0 to 17.1 percent of the value of farm <br>
assets), the 41 operators in Benton County (2.0 to 13.4 percent of the
<br>
value of farm assets), the 87 operators in Lane County (1.2 to 6.8 <br>
percent of the value of farm assets), and then the 3 operators in <br>
Marion County (0.4 to 5.8 percent of the value of farm assets). Impacts
<br>
to the remaining 20 small agriculture operators in Douglas, Linn, and <br>
Lewis counties are estimated at less than approximately 2 percent of <br>
the value of an operator's farm assets.<br>
The economic effects to forestry operations of this proposed
<br>
critical habitat designation are expected to be small. Although there <br>
are about 494 forestry and logging businesses that operate in the eight
<br>
counties that encompass the proposed critical habitat designation, only
<br>
one company has lands that fall within a proposed critical habitat <br>
unit. The estimated economic impact of species conservation activities
<br>
to Starker Forests, Inc., a family-owned business that owns, grows, and
<br>
manages about 60,000 acres of forest land in Benton, Lincoln, Lane, and
<br>
Polk counties, Oregon, is about $1,000 to $3,000 annually.<br>
Based on these data, we have determined that this proposed
<br>
designation would not result in a significant economic impact on a <br>
substantial number of small entities, in particular to agricultural and
<br>
forestry<br>
<br>
[[Page 34570]]<br>
<br>
interests. Please refer to Appendix A of our draft economic analysis of
<br>
this designation for a more detailed discussion of potential economic <br>
impacts to small business entities.<br>
<br>
Executive Order 13211<br>
<br>
On May 18, 2001, the President issued Executive Order (E.O.)
13211 <br>
on regulations that significantly affect energy supply, distribution, <br>
and use. E.O. 13211 requires agencies to prepare Statements of Energy <br>
Effects when undertaking certain actions. This proposed rule is <br>
considered a significant regulatory action under E.O. 12866 because it
<br>
raises novel legal and policy issues, but it is not expected to <br>
significantly affect energy supplies, distribution, or use. Therefore,
<br>
this action is not a significant action and no Statement of Energy <br>
Effects is required.<br>
<br>
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)<br>
<br>
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
<br>
1501), the Service makes the following findings:<br>
(a) This rule will not produce a Federal mandate. In general,
a <br>
Federal mandate is a provision in legislation, statute, or regulation <br>
that would impose an enforceable duty upon State, local, or tribal <br>
governments, or the private sector, and includes both ``Federal <br>
intergovernmental mandates'' and ``Federal private sector mandates.'' <br>
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal <br>
intergovernmental mandate'' includes a regulation that ``would impose <br>
an enforceable duty upon State, local, or tribal governments,'' with <br>
two exceptions. It excludes ``a condition of federal assistance.'' It <br>
also excludes ``a duty arising from participation in a voluntary <br>
Federal program,'' unless the regulation ``relates to a then-existing <br>
Federal program under which $500,000,000 or more is provided annually <br>
to State, local, and tribal governments under entitlement authority,''
<br>
if the provision would ``increase the stringency of conditions of <br>
assistance'' or ``place caps upon, or otherwise decrease, the Federal <br>
Government's responsibility to provide funding'' and the State, local,
<br>
or tribal governments ``lack authority'' to adjust accordingly. (At the
<br>
time of enactment, these entitlement programs were: Medicaid; Aid to <br>
Families with Dependent Children work programs; Child Nutrition; Food <br>
Stamps; Social Services Block Grants; Vocational Rehabilitation State <br>
Grants; Foster Care, Adoption Assistance, and Independent Living; <br>
Family Support Welfare Services; and Child Support Enforcement.) <br>
``Federal private sector mandate'' includes a regulation that ``would <br>
impose an enforceable duty upon the private sector, except (i) a <br>
condition of Federal assistance; or (ii) a duty arising from <br>
participation in a voluntary Federal program.''<br>
The designation of critical habitat does not impose a legally
<br>
binding duty on non-Federal government entities or private parties. <br>
Under the Act, the only regulatory effect is that Federal agencies must
<br>
ensure that their actions do not destroy or adversely modify critical <br>
habitat under section 7. Non-Federal entities that receive Federal <br>
funding, assistance, permits, or otherwise require approval or <br>
authorization from a Federal agency for an action, may be indirectly <br>
impacted by the designation of critical habitat. However, the legally <br>
binding duty to avoid destruction or adverse modification of critical <br>
habitat rests squarely on the Federal agency. Furthermore, to the <br>
extent that non-Federal entities are indirectly impacted because they <br>
receive Federal assistance or participate in a voluntary Federal aid <br>
program, the Unfunded Mandates Reform Act would not apply; nor would <br>
critical habitat shift the costs of the large entitlement programs <br>
listed above on to State governments.<br>
(b) The boundaries of five city governments encompass the
proposed <br>
critical habitat designation: Eugene (estimated population in 2005 of <br>
146,160), Corvallis (estimated population in 2005 of 53,165), Dallas <br>
(estimated population in 2005 of 14,040), Philomath (estimated <br>
population in 2005 of 4,400), and Sheridan (estimated population in <br>
2005 of 5,740). Eugene and Corvallis exceed the criteria (service <br>
population of 50,000 or less) for small entity. Of the three small <br>
governments, Dallas is the only small government entity potentially <br>
impacted by Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii,
<br>
and Erigeron decumbens var. decumbens conservation activities. In <br>
fiscal year 2005-06, the City's annual budget is approximately $36 <br>
million. The analysis estimates that potential future Fender's blue <br>
butterfly and Lupinus sulphureus ssp. kincaidii conservation activities
<br>
(related to a planned collector street and the one-time application <br>
costs and annual deferred maintenance and personnel training costs <br>
associated with a Section 10(a)(1)(A) Recovery Permit) may cost the <br>
City between $28,000 (low range assuming a seven percent discount rate)
<br>
and $197,000 (high range assuming a three percent discount rate) on an
<br>
annualized basis. These costs represent approximately 0.08 percent to <br>
0.5 percent of the City's annual expenditures.<br>
Further, there is no record of consultation between the Service
and <br>
any of these governments since the three species were listed in 2000. <br>
It is likely that small governments involved with developments and <br>
infrastructure projects will be interested parties or involved with <br>
projects involving section 7 consultations for Fender's blue butterfly,
<br>
Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens var. <br>
decumbens within their jurisdictional areas. Any costs associated with
<br>
this activity are likely to represent a small portion of a city's <br>
budget. Consequently, we do not believe that the designation of <br>
critical habitat for Fender's blue butterfly, Lupinus sulphureus ssp. <br>
kincaidii, and Erigeron decumbens var. decumbens will significantly or
<br>
uniquely affect these small governmental entities. As such, a Small <br>
Government Agency Plan is not required.<br>
<br>
Takings<br>
<br>
In accordance with Executive Order 12630 (``Government Actions
and <br>
Interference with Constitutionally Protected Private Property <br>
Rights''), we have analyzed the potential takings implications of <br>
proposing critical habitat for Fender's blue butterfly, Lupinus <br>
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens. <br>
Critical habitat designation does not affect landowner actions that do
<br>
not require Federal funding or permits, nor does it preclude <br>
development of habitat conservation programs or issuance of incidental
<br>
take permits to permit actions that do require Federal funding or <br>
permits to go forward. In conclusion, the designation of critical <br>
habitat for Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii,
<br>
and Erigeron decumbens var. decumbens does not pose significant takings
<br>
implications.<br>
<br>
Author<br>
<br>
The primary author of this package is Mikki Collins, Oregon
Fish <br>
and Wildlife Office, U.S. Fish and Wildlife Service.<br>
<br>
Authority<br>
<br>
The authority for this action is the Endangered Species Act
of 1973 <br>
(16 U.S.C. 1531 et seq.).<br>
<br>
Dated: June 6, 2006.<br>
David P. Smith,<br>
Acting Assistant Secretary for Fish and Wildlife and Parks.<br>
[FR Doc. E6-9323 Filed 6-14-06; 8:45 am]<br>
BILLING CODE 4310-55-P<br>
<br>
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