![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Alameda Whipsnake
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 4, 2006 (Volume 71, Number 86)]
[Proposed Rules]
[Page 26311-26315]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my06-30]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT93
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Alameda Whipsnake
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period and notice of
availability of draft economic analysis.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the comment period on the proposed designation of critical habitat
for the Alameda whipsnake (Masticophis lateralis euryxanthus) and the
availability of the draft economic analysis of the proposed designation
of critical habitat. The draft economic analysis identifies potential
costs of approximately $532 million over a 20-year period, or
approximately $47 million per year, as a result of the proposed
designation of critical habitat, including those costs coextensive with
listing. If this cost is annualized (adjusted for inflation and value
over the time period to equate to an annual cost) over the 20 year
period, the potential costs are predicted to be approximately $47
million per year. 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 need not be resubmitted as they will be
incorporated into the public record as part of this comment period, and
will be fully considered in preparation of the final rule.
DATES: We will accept public comments until June 5, 2006.
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 the Field
Supervisor, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-
2605, Sacramento, CA 95825;
2. You may hand-deliver written comments and information to our
Sacramento Fish and Wildlife Office, at the above address.
3. You may fax your comments to 916/414-6712; or
http://www.regulations.gov 
. For directions on how to file
comments electronically, see the ``Public Comments Solicited'' section. In
the event that our Internet connection is not functional, please submit
your comments by one of the alternate methods mentioned above.
Copies of the draft economic analysis and the proposed rule for
critical habitat designation are available on the Internet at
http://www.fws.gov/sacramento or from the Sacramento Fish
and Wildlife Office at the address and contact numbers above.
FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Sacramento Fish and
Wildlife Office, at the address listed in ADDRESSES (telephone 916/414-
6600; facsimile 916/414-6712).
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 (70 FR 60608; October 18, 2005) 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 (Act) (16 U.S.C. 1531 et seq.),
including whether the benefits of exclusion outweigh the benefits of
including such area as part of critical habitat;
(2) Specific information on the amount and distribution of Alameda
whipsnake, and what habitat is essential to the conservation of this
species and why;
(3) Land use designations and current or planned activities in the
subject area and their possible impacts on proposed habitat;
(4) Information on whether, and, if so, 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
the Alameda whipsnake, and how many were either already in place or
enacted for other reasons;
(5) Information on 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;
(6) Information on whether the draft economic analysis makes
appropriate assumptions regarding current practices and likely regulatory
changes imposed as a result of the designation of critical habitat;
(7) Information on whether the draft economic analysis correctly
assesses the effect on regional costs associated with any land use
controls that may derive from the designation of critical habitat;
(8) Information on areas that could potentially be
disproportionately impacted by an Alameda whipsnake critical habitat
designation. The draft economic analysis indicates potentially
disproportionate impacts to areas within Contra Costa, Alameda, San
Joaquin, and Santa Clara counties. Based on this information, we are
considering excluding portions of these areas from the final
designation per our discretion under section 4(b)(2) of the Act;
(9) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, and in particular, any
impacts on small entities or families; the reasons why our conclusion
that the proposed designation of critical habitat will not result in a
disproportionate effect to small businesses should or should not
warrant further consideration; and other information that would
indicate that the designation of critical habitat would or would not
have any impacts on small entities or families;
(10) Information on whether the draft economic analysis
appropriately identifies all costs that could result from the
designation; and
(11) Information on whether our approach to critical habitat
designation could be improved or modified in any way to provide for
greater public participation and understanding, or to assist us in
accommodating public concern and comments.
An area may be excluded from critical habitat if it is determined
that the benefits of such exclusion outweigh the benefits of including
a particular area as critical habitat, unless the failure to designate
such area as critical habitat will result in the extinction of the
species. We may exclude an area from designated critical habitat based
on economic impacts, national security, or any other relevant impact.
All previous comments and information submitted during the initial
comment period on the October 18, 2005, proposed rule (70 FR 60608) need
[[Page 26312]]
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 designation of critical habitat will take into consideration
all comments and any additional information we received during both
comment periods. On the basis of public comment on this analysis, the
critical habitat proposal, and 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 not appropriate for exclusion.
Please submit electronic comments in an ASCII file format and avoid
the use of special characters and encryption. Please also include
``Attn: RIN 1018-AT93'' and your name and return address in your e-mail
message. If you do not receive a confirmation from the system that we
have received your e-mail message, please contact the person listed
under FOR FURTHER INFORMATION CONTACT.
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 addresses from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record 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
comment, but you should be aware that the Service may be required to
disclose your name and address pursuant to the Freedom of Information
Act. 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 inspection, by appointment, during
normal business hours, at the Sacramento Fish and Wildlife Office at
the address listed under ADDRESSES.
Copies of the proposed rule and draft economic analysis are
available on the Internet at: http://www.fws.gov/sacramento/ .
You may also obtain copies of the proposed rule and economic analysis from
the Sacramento Fish and Wildlife Office (see ADDRESSES), or by calling
916/414-6600.
Background
We published a proposed rule to designate critical habitat for the
Alameda whipsnake on October 18, 2005 (70 FR 60608). The proposed
critical habitat totaled approximately 203,342 acres (ac) (82,289
hectares (ha)) in Contra Costa, Alameda, San Joaquin, and Santa Clara
counties, California. Per settlement agreement, we will submit for
publication in the Federal Register a final critical habitat
designation for the Alameda whipsnake on or before October 1, 2006.
Critical habitat is defined in section 3 of the Act 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 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 based upon the best scientific and commercial 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. Based on the October 18, 2005,
proposed rule to designate critical habitat for the Alameda whipsnake
(70 FR 60608), we have prepared a draft economic analysis of the
proposed critical habitat designation.
The current draft economic analysis estimates the foreseeable
economic impacts of the proposed critical habitat designation on
government agencies and private businesses and individuals. The
economic analysis identifies potential costs of approximately $532
million over a 20-year period, or approximately $47 million per year,
as a result of the proposed critical habitat designation, including
those costs coextensive with listing. If this cost is annualized
(adjusted for inflation and value over the time period to equate to an
annual cost) over the 20 year period, the potential costs are predicted
to be approximately $47 million per year. The analysis measures lost
economic efficiency associated with residential and commercial
development, and public projects and activities, such as economic
impacts on transportation projects, the energy industry, and Federal lands.
The draft economic analysis considers the potential economic
effects of actions relating to the conservation of the Alameda
whipsnake, 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 the Alameda whipsnake in essential habitat areas. The
draft 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 draft analysis looks retrospectively at
costs that have been incurred since the date the species was listed as
a threatened species (December 5, 1997; 62 FR 64306) and considers
those costs that may occur in the 20 years following a designation of
critical habitat.
As stated earlier, we solicit data and comments from the public on
this draft economic analysis, as well as on all aspects of the
proposal. We may revise the proposal, or its supporting documents, to
incorporate or address new information received during the 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 as critical habitat, provided such
exclusion will not result in the extinction of the species.
Costs related to conservation activities for the proposed Alameda
whipsnake
[[Page 26313]]
critical habitat pursuant to sections 4, 7, and 10 of the Act are
estimated to be approximately $532 million from 2006 to 2026. Overall,
the residential and commercial industry is anticipated to experience
the highest estimated costs. The draft analysis was conducted at the
census tract level. Of the 49 census tracts that are part of this
current proposal, 17 are identified as census tracts responsible for
over 80 percent of the most economically impacted areas. Annualized
impacts of costs attributable to the proposed critical habitat
designation are projected to be approximately $47 million.
Required Determinations--Amended
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, it is not anticipated to have an annual effect on the economy
of $100 million or more or affect the economy in a material way. Due to
the timeline for publication in the Federal Register, the Office of
Management and Budget (OMB) did not formally review the proposed rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will then need to consider
alternative regulatory approaches. Since the determination of critical
habitat is a statutory requirement pursuant to the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then
evaluate alternative regulatory approaches, where feasible, when
promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
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. 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; 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 designation of critical habitat for
the Alameda whipsnake 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 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 under section 7 of the Act 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.
In our draft economic analysis of the proposed critical habitat
designation, we evaluated the potential economic effects on small
business entities resulting from conservation actions related to the
listing of the Alameda whipsnake and proposed designation of its
critical habitat. We determined from our analysis that the small
business entities that may be affected are firms in the new home
construction sector. We estimated the number of affected small
businesses and calculated the number of houses built per small firm. It
appears that the annual number of affected small firms would be fewer
than four in the affected counties. Note that if one firm closed in the
first year, then this same firm would be affected in subsequent years.
The number of small firms will not decrease every year. These firms may
be affected by activities associated with the conservation of the
Alameda whipsnake, inclusive of activities associated with listing,
recovery, and critical habitat. In the development of our final
designation, we will explore potential alternatives to minimize impacts
to any affected small business entities. These alternatives may include
the exclusion of all or portions of critical habitat units in areas
where the number of small businesses are disproportionately affected.
However, we are seeking comment on potentially excluding areas from the
final critical habitat designation if it is determined that there will
be a substantial and significant impact to small real estate
development businesses in the affected areas.
Critical habitat designation for the Alameda whipsnake is expected
to have the largest impacts on the market for developable land. The
proposed critical habitat designation for Alameda whipsnake occurs in a
number of
[[Page 26314]]
rapidly growing areas. Regulatory requirements to avoid on-site impacts
and mitigate off-site affect the welfare of both producers and
consumers. In the scenario presented here, mitigation requirements
increase the cost of development, and avoidance requirements are
assumed to reduce the construction of new housing. In this scenario,
the proposed critical habitat designation is expected to impose losses
of over $532 million over the 20-year study period.
The economic impacts of the proposed critical habitat designation
vary widely even with the county. That is, the impacts of designation
are frequently localized. This finding is sensible from an economic
point of view and is consistent with the teachings of urban economics.
Housing prices vary over urban areas, typically declining as the
location of the house becomes more remote. Critical habitat is not
evenly distributed across the landscape, and large impacts may result
if a particular area has a large fraction of developable land in
critical habitat. Some areas have few alternate sites for development,
or have highly rationed housing resulting in high prices. Any of these
factors may cause the cost of critical habitat designation to increase.
The precise spatial scale of the analysis permits identification of
specific locations, or parts of individual critical habitat units, that
result in the largest economic impacts. The maps contained at the end
of the draft economic analysis are instructive in this regard. The maps
identify the census tracts within the counties where the impacts are
predicted to occur.
Please refer to our draft economic analysis of the proposed
critical habitat designation for a more detailed discussion of
potential economic impacts.
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.
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, or 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; Aid to
Families with Dependent Children 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.''
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 the Alameda whipsnake, the impacts
on nonprofits and small governments are expected to be small. There is
no record of consultations between the Service and any of these
governments since the Alameda whipsnake was listed as threatened on
December 5, 1997 (62 FR 64306). It is likely that small governments
involved with developments and infrastructure projects will be
interested parties or involved with projects involving section 7
consultations for the Alameda whipsnake within their jurisdictional
areas. Any costs associated with this activity are likely to represent
a small portion of a local government's budget. Consequently, we do not
believe that the designation of critical habitat for the Alameda
whipsnake 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 the Alameda whipsnake. 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 the Alameda
whipsnake does not pose significant takings implications.
Author
The primary author of this notice is the staff of the Sacramento
Fish and Wildlife Office.
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
[[Page 26315]]
Dated: April 26, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-6720 Filed 5-3-06; 8:45 am]
BILLING CODE 4310-55-P