[Federal Register Volume 76, Number 11 (Tuesday, January 18, 2011)]
[Proposed Rules]
[Pages 2863-2871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-843]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0044; MO 92210-0-0009]
RIN 1018-AW86


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Sonoma County Distinct Population Segment of 
the California Tiger Salamander (Ambystoma californiense)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the comment period on our August 18, 2009, proposed designation of 
critical habitat for the Sonoma County Distinct Population Segment of 
the California tiger salamander (Ambystoma californiense) under the 
Endangered Species Act of 1973, as amended. We also announce revisions 
to the proposed critical habitat unit, as it was described in the 
proposed rule published in the Federal Register on August 18, 2009 (74 
FR 41662), and announce the availability of the draft economic analysis 
for the revised proposed critical habitat designation and an amended 
required determinations section of the proposal. We are reopening the 
comment period for an additional 30 days to allow all interested 
parties an opportunity to comment simultaneously on the revised 
proposed critical habitat, the associated draft economic analysis, and 
the amended required determinations section. Comments previously 
submitted need not be resubmitted and will be fully considered in 
preparation of the final rule.

DATES: We will consider public comments received on or before February 
17, 2011. Comments must be received by 11:59 p.m. Eastern Time on the 
closing date. Any comments that we receive after the closing date may 
not be considered in the final decision on this action.

ADDRESSES: You may submit comments by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R8-
ES-2009-0044.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2009-0044; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, or 
Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, 
Sacramento, CA 95825; telephone 916-414-6600; facsimile 916-414-6713. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this revised 
proposed rule will be based on the best scientific data available and 
will be as accurate and as effective as possible. We will accept 
written comments and information during this reopened comment period on 
our amended proposed designation of critical habitat for the Sonoma 
County Distinct Population Segment of the California tiger salamander 
that was published in the Federal Register on August 18, 2009 (74 FR 
41662), our draft economic analysis (DEA) of the proposed designation, 
and the amended required determinations provided in this document. We 
will consider information and recommendations from all interested 
parties.
    Therefore, during this reopened comment period we request comments 
or information from the public, other concerned government agencies, 
the scientific community, industry, or other interested party on: (1) 
The proposed rule to designate critical habitat for the Sonoma County 
Distinct Population Segment (DPS) of the California tiger salamander 
that was published in the Federal Register on August 18, 2009 (74 FR 
41662), the revisions to proposed critical habitat described herein 
(see Revisions to Proposed Critical Habitat section), and the DEA of 
the revised proposed designation; (2) the considered exclusion of 
critical habitat; and (3) the amended Required Determinations section 
provided in this document. We are particularly interested in comments 
concerning:
    (1) The proposed critical habitat designation (which comprises a 
single critical habitat unit), as revised in this

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notice (see the Revisions to Proposed Critical Habitat section, below).
    (2) The reasons we should or should not designate the revised 
proposed habitat as ``critical habitat'' under section 4 of the 
Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree to which such threats can be expected to increase 
due to designation, and whether that increase in threat outweighs the 
benefit of designation such that the designation of critical habitat is 
not prudent.
    (3) Specific information on:
    (a) The amount and distribution of California tiger salamander 
habitat, including areas that provide habitat for the Sonoma County DPS 
of the California tiger salamander that we did not discuss in this 
revised proposed critical habitat rule;
    (b) Areas within the geographical area occupied by the species at 
the time of listing that contain the physical and biological features 
essential to the conservation of the species which may require special 
management considerations or protection, that we should include in the 
designation and reason(s) why (see Primary Constituent Elements (PCEs) 
section of the revised proposed rule for further discussion); and
    (c) Areas outside the geographical area occupied by the species at 
the time of listing that are essential for the conservation of the 
species, why the areas are essential, and whether they should be 
included in the designation.
    (4) Additional information concerning the range, distribution, and 
population size of this species, including the locations of any 
additional populations of the Sonoma County DPS of the California tiger 
salamander that would help us further refine the boundaries of critical 
habitat.
    (5) Information that may assist us in clarifying the primary 
constituent elements.
    (6) Land-use designations and current or planned activities in the 
area proposed as critical habitat, as well as their possible effects on 
the revised proposed critical habitat.
    (7) How the revised proposed critical habitat boundaries could be 
refined to more closely circumscribe the areas identified as containing 
the features essential to the species' conservation. In particular, we 
are interested in specific information on the southeasterly portion of 
the revised critical habitat that is east of Petaluma Hill Road and 
south of Martinez Drive, and that is delineated as a ``no effect'' area 
in Enclosure 1 (California Department of Fish and Game 2008) of the 
``Programmatic Biological Opinion for the U.S. Army Corps of Engineers 
Permitted Projects that May Affect California Tiger Salamander and 
Three Endangered Plant Species on the Santa Rosa Plain, California'' 
(Corps File Number 223420N) (Service 2007). To date, there have been no 
known detections of the salamander in this area. However, satellite 
imagery of the area suggests that PCEs are present within the area. In 
addition, the area is contiguous with other portions of the revised 
proposed critical habitat where breeding salamanders have been located 
since the development of the Santa Rosa Plain Conservation Strategy 
(Conservation Strategy).
    (8) Any probable economic, national security, or other impacts of 
designating particular areas as critical habitat, and, in particular, 
any impacts on small entities (e.g., small businesses or small 
governments), and the benefits of including or excluding areas that 
exhibit these impacts.
    (9) Whether any specific areas being proposed as critical habitat 
should be excluded under section 4(b)(2) of the Act, and whether the 
benefits of potentially excluding any particular area outweigh the 
benefits of including that area under section 4(b)(2) of the Act. See 
the Areas Previously Considered For Exclusion Under Section 4(b)(2) of 
the Act section below and the Exclusions section of the proposed rule 
(74 FR 41662; August 18, 2009) for further discussion.
    (10) Information on any Tribal lands that occur in areas being 
proposed as critical habitat, including whether these lands are held in 
fee or trust.
    (11) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding or to better accommodate public concerns and 
comments.
    (12) Information on any quantifiable economic costs or benefits of 
the proposed designation of critical habitat.
    (13) Information on the extent to which the description of 
potential economic impacts in the DEA is complete and accurate.
    If you submitted comments or information on the proposed rule (74 
FR 41662; August 18, 2009) during the initial comment period from 
August 18, 2009, to October 19, 2009, please do not resubmit them. 
These comments are included in the public record for this rulemaking 
and we will fully consider them in the preparation of our final 
determination. Our final determination concerning the designation of 
critical habitat for the Sonoma County DPS of the California tiger 
salamander will take into consideration all written comments and any 
additional information we receive during both comment periods. On the 
basis of public comments, we may, during the development of our final 
determination, find that areas within the proposed critical habitat 
designation do not meet the definition of critical habitat, that some 
modifications to the described boundaries are appropriate, or that 
areas may or may not be appropriate for exclusion under section 4(b)(2) 
of the Act.
    You may submit your comments and materials concerning this revised 
proposed rule, the DEA associated with this revised proposed critical 
habitat designation, and the amended required determinations by one of 
the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
submission--including any personal identifying information--will be 
posted on the Web site. If your submission is made via a hard copy that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hard copy comments on http://www.regulations.gov. Please 
include sufficient information with your comments to allow us to verify 
any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation used to prepare this notice, will be available for public 
inspection at http://www.regulations.gov, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service (Service), 
Sacramento Fish and Wildlife Office (see the FOR FURTHER INFORMATION 
CONTACT section). You may obtain copies of the proposed designation of 
critical habitat (74 FR 41662) and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0044, or by mail from 
the Sacramento Fish and Wildlife Office (see the FOR FURTHER 
INFORMATION CONTACT section).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this revised proposed rule. 
Information on the taxonomy, distribution, life history, biology, and 
other information about the California tiger salamander is included in 
the Background section of the final rule to list the California tiger 
salamander as a threatened species,

[[Page 2865]]

published in the Federal Register on August 4, 2004 (69 FR 47212). 
Additional relevant information may be found in the final rules to list 
the Santa Barbara County DPS (65 FR 57242; September 21, 2000) and the 
Sonoma County DPS of the California tiger salamander (68 FR 13498; 
March 19, 2003); the proposed rules to designate critical habitat for 
the California tiger salamander in Santa Barbara County (69 FR 3064; 
January 22, 2004) and the Central population of the species' range (69 
FR 48570; August 10, 2004); and the final rules to designate critical 
habitat for the California tiger salamander in Santa Barbara County (69 
FR 68568; November 24, 2004) and the Central population (70 FR 49380; 
August 23, 2005). The information contained in the previous Federal 
Register documents was used in developing this revised proposed rule.
    We now propose revisions to the proposed critical habitat unit for 
the Sonoma County DPS of the California tiger salamander (see Revisions 
to Proposed Critical Habitat section); accordingly, approximately 
50,855 acres (ac) (20,580 hectares (ha)) in Sonoma County, California, 
meet the definition of critical habitat and comprise this single 
revised proposed critical habitat unit.

Previous Federal Actions

    On August 4, 2004, we listed the Central California population of 
the California tiger salamander as a threatened DPS (69 FR 47211). At 
that time, we reclassified the California tiger salamander as 
threatened throughout its range, removing the Santa Barbara County and 
Sonoma County populations as separately listed DPSs (69 FR 47241).
    On August 18, 2005, as a result of litigation regarding the August 
4, 2004, final rule (69 FR 47211) on the reclassification of the 
California tiger salamander DPSs (Center for Biological Diversity et 
al. v. United States Fish and Wildlife Service et al. (Case No. C-04-
4324-WHA (N.D. Cal. 2005))), the District Court of Northern California 
sustained the portion of the 2004 final rule pertaining to listing the 
Central California tiger salamander as threatened, with a special rule, 
and vacated the 2004 rule with regard to the Santa Barbara County and 
Sonoma County DPSs, reinstating their prior listing as endangered. We 
are making the necessary changes to the information included in the 
Code of Federal Regulations in the regulatory section of this rule, and 
we will finalize the changes in the final critical habitat for the 
Sonoma County DPS of the California tiger salamander.
    With respect to critical habitat, on October 13, 2004, a complaint 
was filed in the U.S. District Court for the Northern District of 
California (Center for Biological Diversity et al. v. U.S. Fish and 
Wildlife Service et al. (Case No. C-04-4324-FMS (N.D. Cal. 2005))), 
which in part challenged the failure of designating critical habitat 
for the California tiger salamander in Sonoma County. On February 3, 
2005, the District Court approved a settlement agreement that required 
the Service to submit a final determination on the proposed critical 
habitat designation for publication in the Federal Register on or 
before December 1, 2005. On August 2, 2005 (70 FR 44301), the Service 
published a proposed rule to designate approximately 74,223 ac (30,037 
ha) of critical habitat, and on November 17, 2005, we published a 
revised proposed rule indicating we were considering approximately 
21,298 ac for the final designation (70 FR 69717). In the 2005 revised 
proposed rule, we proposed critical habitat in areas within the range 
where, at that time, we had credible records of breeding, as reported 
by biologists that were permitted by the Service to survey for the 
salamander. On December 14, 2005, the Service published a final rule in 
the Federal Register (70 FR 74138), which identified four subunits of 
critical habitat, consisting of 17,418 ac (7,049 ha) located mostly 
west of the developed portions of Santa Rosa, Rohnert Park, and Cotati, 
in Sonoma County. Each one of the subunits represented a breeding 
center for the species. In the final rule, the Service excluded all 
proposed critical habitat, resulting in a designation of zero (0) acres 
of critical habitat.
    On February 29, 2008, we received a notice of intent to sue from 
the Center for Biological Diversity that challenged the Service's final 
designation of critical habitat, claiming that it was not based on the 
best available scientific information. On May 5, 2009, the Court 
approved a stipulated settlement agreement where the Service agreed to 
publish a revised proposed rule within 90 days that encompassed the 
same geographic area as the August 2005 proposal. The proposed rule, 
published on August 18, 2009 (74 FR 41662), complies with the May 5, 
2009, stipulated agreement.
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species that 
may require special management considerations or protection, and 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. If the 
proposed rule is made final, section 7 of the Act will prohibit 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency. Federal 
agencies proposing actions affecting critical habitat must consult with 
us on the effects of their proposed actions, under section 7(a)(2) of 
the Act.

Revisions to Proposed Critical Habitat

    In this notice, we are revising the proposed Unit 1 (Santa Rosa 
Plain Unit), as described in the August 2, 2005 (70 FR 44301), and 
August 18, 2009 (74 FR 41662), proposed rules. In the August 2, 2005, 
proposed critical habitat rule, we identified the historic and 
potential range of the species in Sonoma County, utilizing historic 
information and all known breeding and adult locality data available at 
that time. Subsequently, the November 17, 2005, proposed revised rule 
(70 FR 69717) limited the proposed critical habitat to areas containing 
essential physical and biological features that were located within 0.7 
mile (mi) (1.1 kilometers (km)) of known breeding sites, thereby 
focusing the proposed critical habitat designation on providing 
sufficient breeding habitat and upland habitat to maintain and sustain 
existing salamanders in documented breeding sites. The November 2005 
proposed revision did not include other areas within the Santa Rosa 
Plain that contained the essential physical and biological features. 
Based on the May 5, 2009, stipulated settlement described above, we 
published a proposed critical habitat rule on August 18, 2009 (74 FR 
41662), that encompassed the same geographic areas as the original 
August 2, 2005, proposed rule (70 FR 44301).
    The purpose of this revision to the proposed critical habitat is to 
better delineate the areas that contain the physical or biological 
features essential to the conservation of the species and that meet the 
definition of critical habitat for the California tiger salamander in 
Sonoma County. In general, this revision involves adjusting the 
boundaries of the proposed critical habitat Unit 1 to better reflect 
the occupied and potential range of the species as reflected in the 
Conservation Strategy mapping criteria (Conservation Strategy Team 
2005a, Appendix E), that was developed subsequent to the

[[Page 2866]]

August 2, 2005, proposed rule (74 FR 41662). In addition, this revision 
considers recent documentation of adult salamanders with potential 
breeding habitat in additional areas within the proposed critical 
habitat, including the areas in the vicinity of Lichau Creek and 
Railroad Avenue (WRA Environmental Consultants 2005, pp. 3-8), and 
recent findings of California tiger salamanders at the Horn wetland 
mitigation bank (Monk 2010, pers. com.).
    As a result of this revision, the area proposed for critical 
habitat in Unit 1 is 50,855 ac (20,580 ha), rather than the 74,223 ac 
(30,037 ha) identified in the August 18, 2009, proposed rule. The 
revised unit is now bordered on the west by the generalized eastern 
boundary of the 100-year Laguna de Santa Rosa floodplain, on the south 
by Pepper Road (northwest of Petaluma), on the east by the foothills of 
the Sonoma Mountains, and on the north by Windsor Creek. The northern 
boundary of the revised proposed critical habitat and the non-developed 
portions of the eastern boundary remain very close to the previously 
proposed boundaries. Other boundary adjustments are described below. A 
small addition to the southeastern edge of Unit 1 is within the 
geographic range occupied by the species at the time of listing and 
contains the physical or biological features essential to the 
conservation of the species. A revised map for the proposed critical 
habitat unit in Sonoma County is included in this notice.
    The framers of the Conservation Strategy generally did not consider 
areas within the Federal Emergency Management Agency (FEMA) 100-year 
floodplain as areas suitable to support salamander breeding because 
seasonal pools within the 100-year floodplain are subject to flooding 
from perennial sources (such as the Laguna de Santa Rosa), and provide 
a high likelihood of supporting salamander predators in pools within 
the floodplain. In the Conservation Strategy, periodically flooded 
uplands within the 100-year floodplain may be considered salamander 
habitat if located near predator-free breeding pools (Conservation 
Strategy Team 2005a, Appendix E). Occurrence information from the 
California Natural Diversity Database (CNDDB) (2010) indicates that, 
despite intensive focus on the salamander within the Santa Rosa Plain, 
to date no occurrences have been identified within the 100-year 
floodplain. The fact that this species has not been located within the 
floodplain may be due to the lack of suitable upland habitat within the 
floodplain during the wet season (Conservation Strategy Team 2005b, 
Appendix L). The Service, therefore, has determined that most of the 
100-year floodplain lacks the physical and biological features and is 
not essential for the conservation of the California tiger salamander.
    To revise the proposed critical habitat boundary along the 
floodplain, we used a process that generalizes the floodplain boundary 
in order to smooth complex lines, removing the bulk of the floodplain 
from proposed critical habitat while retaining smaller areas along the 
eastern border of the floodplain. A segment of the 100-year floodplain 
that is located between the Stony Point Conservation Area (near Wilfred 
Avenue) and the Northwest Cotati Conservation Area (near Nahmens Road) 
is retained within the revised proposed critical habitat to reduce 
fragmentation of the northern and southern breeding concentrations 
within the unit by allowing for potential dispersal and genetic 
exchange. This retained segment is further bounded by Llano Road on the 
west and the western edge of the urban growth boundary of Cotati, 
California (near the northern terminus of Helman Lane), on the east.
    Additionally, this revised proposed critical habitat unit no longer 
includes several areas of small remnant open parcels that occur between 
the eastern periphery of suburban Sebastopol and the western edge of 
the 100-year floodplain. We do not consider these areas essential for 
the conservation of the species because the undeveloped lands are small 
in size, are isolated from each other by development, are isolated by 
the 100-year floodplain and the Laguna de Santa Rosa from breeding 
habitat on the eastern side of the floodplain, are not known to be 
occupied, and do not contain the PCEs in the correct quantity and 
spatial arrangement to provide for the conservation of the species.
    This revised proposed critical habitat designation no longer 
includes the urbanized centers of Santa Rosa, Bennett Valley, Rohnert 
Park, and Cotati. These urban centers consist almost exclusively of 
hardened, developed landscapes. The remnant natural habitat within 
these areas is limited to small, isolated parcels within a matrix of 
urban development. These areas have been removed in this revised 
proposal because developed areas (lands covered by buildings, pavement, 
and other structures) lack the physical or biological features 
essential to the conservation of the species according to section 
3(5)(A) of the Act. We also do not consider the remnant natural habitat 
within these city centers as essential for the conservation of the 
salamander. However, areas on the periphery of urban areas remain 
within the revised proposed critical habitat boundary. The scale of the 
map we prepared under the parameters for publication within the Code of 
Federal Regulations is not sufficient to reflect the exclusion of 
developed lands, while retaining open lands that provide the features 
essential to the conservation of the species.
    Any such developed lands that have been left inside critical 
habitat boundaries shown on the maps of this revised proposed rule are 
excluded by text and are not proposed for designation as critical 
habitat because they either do not contain the physical or biological 
features essential to the species or are not considered essential for 
the species. Therefore, when the critical habitat is finalized, a 
Federal action involving these undesignated lands would not trigger a 
section 7 consultation, nor, with respect to critical habitat, would it 
require an analysis to determine adverse modification in these 
undesignated areas, unless the specific action would affect the 
physical or biological features essential to the conservation of the 
species in the adjacent designated critical habitat.
    In the southernmost region of the Santa Rosa Plain, the critical 
habitat unit boundary has been revised as follows. In the vicinity of 
Lichau Creek and Railroad Avenue, additional acreage reflects new 
information on the presence of salamander breeding within the area. The 
area south of Pepper Road, along both sides of U.S. Highway 101, is not 
included in the revised proposed critical habitat because we do not 
currently consider this area to be essential to the conservation of the 
species. This area has been fragmented by industrial and residential 
development and roadways, including the major north-south interstate 
highway, U.S. Highway 101. More than 20 percent of the open land 
generally south of Pepper Road and west of U.S. Highway 101 is 
delineated as 100-year floodplain for the Petaluma River. As discussed 
above, we generally do not consider lands within the 100-year 
floodplain to contain suitable breeding habitat for the salamander. 
Suitable upland habitat may also be lacking during the wet season 
(Conservation Strategy Team 2005b, Appendix L). The floodplain 
fragments the remaining undeveloped land in this area. Although there 
is an anecdotal report from the 1990s of a California tiger salamander 
observation along Rainsville Road, we are not aware of confirmed 
observations of the California tiger salamander within this area.

[[Page 2867]]

Areas Previously Considered for Exclusion Under Section 4(b)(2) of the 
Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan.
    In the December 14, 2005, final rule (70 FR 74138), we evaluated 
those lands determined to have essential features, in order to 
ascertain if any specific areas were appropriate for exemption or 
exclusion from critical habitat under sections 4(a)(3) and 4(b)(2) of 
the Act. On the basis of that evaluation, we determined that the 
benefits of excluding lands under appropriate management for the Sonoma 
County DPS of the California tiger salamander outweighed the benefits 
of their inclusion within critical habitat. Consequently, we excluded 
the entire proposed critical habitat for the Sonoma County DPS of the 
California tiger salamander under section 4(b)(2) of the Act, based in 
part on the expectation that the Conservation Strategy would be 
implemented. We determined that the Conservation Strategy would provide 
conservation benefits that would be superior to a critical habitat 
designation. We also determined that critical habitat designation might 
hinder the progress of the Conservation Strategy by discouraging the 
involvement of local jurisdictions and private landowners, without 
providing any counterbalancing, proactive conservation benefit. 
However, at that time, we acknowledged the potential for revisiting the 
critical habitat designation should changed circumstances occur, such 
as unsuccessful finalization or implementation of the Conservation 
Strategy.
    The Conservation Strategy Implementation Plan has not been 
developed or implemented by local agencies during the period since the 
publication of the December 14, 2005, final critical habitat rule (70 
FR 74138). Therefore, at this time, we do not believe that the 
Conservation Strategy provides a sufficient basis for exclusion of the 
unit from critical habitat designation. Any exclusion of critical 
habitat based on potential economic costs will be presented in the 
final rule.
    We are not proposing to exclude any areas from critical habitat at 
this time. In the final rule, we may consider exclusion of all or some 
of the Federated Indians of Graton Rancheria of California's 254-ac 
(103-ha) parcel of Tribal trust land that currently overlaps with 
proposed critical habitat. This potential exclusion would occur under 
section 4(b)(2) of the Act and by taking into consideration Secretarial 
Order 3206 involving American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act. However, the 
final decision on whether to exclude any areas will be based on the 
best scientific data available at the time of the final designation, 
including information obtained during the comment period and 
information about the economic impact of designation.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat based upon the best scientific data available, after taking 
into consideration the economic impact, impact on national security, or 
any other relevant impact of specifying any particular area as critical 
habitat. We prepared a DEA (IEC 2010) to identify and analyze the 
potential economic impacts associated with this revised proposed 
critical habitat for the Sonoma County DPS of the California tiger 
salamander.
    The DEA (made available with the publication of this notice) 
estimates the foreseeable economic impacts of this revised proposed 
critical habitat (IEC 2010). The economic analysis presented in the DEA 
uses the historical record to inform its assessment of potential future 
impacts of critical habitat. The analysis forecasts both baseline and 
incremental impacts likely to occur after the revised proposed rule is 
finalized. The DEA identifies economic impacts to the following 
activities as a result of the designation of critical habitat for the 
Sonoma County DPS of the California tiger salamander: (1) Commercial 
and residential development, (2) transportation projects, and (3) 
utility and pipeline construction and maintenance activities. In 
addition, the DEA identifies potential economic impacts to agriculture 
and mitigation banks, but concludes that these activities are not 
likely to incur measurable economic impacts due to the designation of 
critical habitat. To provide an understanding of the potential economic 
impacts, this analysis determines the scope and scale of economic 
activities within the revised proposed critical habitat; identifies 
threats to California tiger salamander habitat associated with these 
economic activities; identifies conservation measures that may be 
implemented to avoid or minimize these threats; and to the extent 
feasible, quantifies the economic costs of these measures.
    The DEA describes the economic impacts of all potential 
conservation efforts for the Sonoma County DPS of the California tiger 
salamander; some of these costs will likely be incurred regardless of 
whether we designate critical habitat. The economic impact of the 
revised proposed critical habitat designation is analyzed by comparing 
scenarios both ``with critical habitat'' and ``without critical 
habitat.'' The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections that are already in 
place for the species (such as protections under the Act and other 
Federal, State, and local regulations). The baseline, therefore, 
represents the costs incurred regardless of whether critical habitat is 
designated. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
critical habitat designation for the Sonoma County DPS of the 
California tiger salamander. In other words, the incremental costs are 
those attributable solely to the designation of critical habitat above 
and beyond the baseline costs; these are the costs we may consider in 
the final designation of critical habitat when evaluating the benefits 
of excluding particular areas under section 4(b)(2) of the Act. The 
analysis looks retrospectively at

[[Page 2868]]

baseline impacts incurred since the species was listed, and forecasts 
both baseline and incremental impacts likely to occur if we finalize 
the revised proposed critical habitat designation. For a further 
description of the methodology of the analysis, see Chapter 2, 
``Framework for the Analysis,'' of the DEA (IEC 2010).
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
Sonoma County DPS of the California tiger salamander over the next 25 
years, which was determined to be the appropriate period for analysis 
because limited planning information is available for most activities 
to forecast activity levels for projects beyond a 25-year timeframe. 
The DEA identifies potential incremental costs as a result of the 
proposed critical habitat designation; these are those costs attributed 
to critical habitat over and above those baseline costs attributed to 
listing.
    The DEA 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 required to accomplish species and habitat 
protection. The DEA 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 government agencies, private businesses, and 
individuals. The DEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on agriculture and transportation 
projects, Federal lands, small entities, and the energy industry. 
Decision-makers can use this information to assess whether the effects 
of the critical habitat designation might unduly burden a particular 
group or economic sector.
    Baseline economic impacts are those impacts that result from 
listing and other conservation efforts for the California tiger 
salamander. The DEA quantifies baseline costs due to the administrative 
cost of section 7 consultations. Additional baseline impacts stem from 
conservation measures applied to avoid jeopardy and take of California 
tiger salamanders as well as other conservation measures unrelated to 
the designation of critical habitat. Potential baseline impacts to 
development stem from two main sources: (1) Minimization and mitigation 
measures applied as part of the section 404 permit process pursuant to 
the Clean Water Act; and (2) measures taken to avoid jeopardy of the 
California tiger salamander as part of section 7 consultation. 
Mitigation requirements are defined by the Service in its Programmatic 
consultation with the Corps (Service 2007) and are considered baseline 
costs. Approximately 80 percent of future development projects are 
expected to require mitigation. Mitigation credits sold recently range 
from $100,000 to $130,000 per acre in this area.
    The DEA revealed that all incremental impacts stem entirely from 
the administrative costs of section 7 consultation on commercial and 
residential development projects, and on transportation and utility 
activities. Significant uncertainty exists regarding whether the 
Service will require additional conservation measures specifically to 
avoid adverse modification of critical habitat in future section 7 
consultations, and what such measures might entail. As a result, the 
analysis does not forecast incremental impacts due to such measures. 
The DEA estimates total potential incremental economic impacts in areas 
proposed as critical habitat over the next 25 years (2011 to 2035) to 
be approximately $465,000 ($39,900 annualized) in present value terms 
applying a 7 percent discount rate (IEC 2010, p. ES-4), and $685,000 
($39,300 annualized) in present value terms applying a 3 percent 
discount rate (IEC 2010, Appendix B). Impacts associated with section 7 
consultations on development projects total $441,000 ($37,900 
annualized), applying a 7 percent discount rate, and make up the 
largest portion of post-designation incremental impacts, accounting for 
95 percent of the forecast incremental impacts. Incremental impacts to 
transportation represent the next largest source of incremental 
impacts, and total $22,500 (applying a 7 percent discount rate), which 
represents 5 percent of total incremental impacts. The present value 
administrative cost of impacts associated with utility activities is 
$1,290 (applying a 7 percent discount rate), and represents less than 1 
percent of the overall incremental impacts.
    The greatest incremental impacts are forecast to occur within the 
Santa Rosa Urban Growth Boundary (UGB) ($209,000 present value impacts 
discounted at 7 percent), and make up 45 percent of the overall 
incremental impacts. The second largest incremental impacts are 
predicted to occur within the Windsor UGB, with present value impacts 
at $136,000 (applying a 7 percent discount rate) comprising 29 percent 
of the overall incremental impacts. Incremental impacts to Petaluma, 
which are forecast to incur the least amount of incremental impacts, 
are estimated at $10,100 of present value impacts (discounted at 7 
percent), and make up 2 percent of the overall incremental impacts. 
Only a small portion of the Petaluma UGB intersects with the revised 
proposed critical habitat. The DEA concerning the proposed critical 
habitat designation is available for review and comment (see ADDRESSES 
section).

Required Determinations--Amended

    In our proposed rule published in the Federal Register on August 
18, 2009 (74 FR 41662), we indicated that we would defer our 
determination of compliance with several statutes and Executive Orders 
until the information concerning potential economic impacts of the 
designation and potential effects on landowners and stakeholders became 
available in the DEA. We have now made use of the DEA to make these 
determinations. In this document, we affirm the information in our 
proposed rule concerning the Unfunded Mandates Reform Act (2 U.S.C. 
1501 et seq.), Executive Order (E.O.) 12866 (Regulatory Planning and 
Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), 
E.O. 12630 (Takings), the Paperwork Reduction Act, the National 
Environmental Policy Act, and the President's memorandum of April 29, 
1994, ``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on the DEA, we are amending 
our required determinations concerning the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), and E.O. 13211 (Energy Supply, Distribution, or 
Use).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) (5 U.S.C. 802(2))), 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), 
as described below. 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. 
Based on our DEA for the revised proposed critical habitat, we provide 
our analysis for determining

[[Page 2869]]

whether the revised proposed designation would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments we receive during the public comment period, we may revise 
this determination as part of a final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. Private developers may be considered 
small entities if their annual income is not greater than $33.5 
million. 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 operations.
    To determine if the revised proposed critical habitat for the 
Sonoma County DPS of the California tiger salamander would affect a 
substantial number of small entities, we consider the number of small 
entities affected by particular types of economic activities, such as 
residential and commercial development. In order to determine whether 
it is appropriate for our agency to certify that this rule would not 
have a significant economic impact on a substantial number of small 
entities, we considered each industry or category individually. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat only 
affects activities conducted, funded, permitted, or authorized by 
Federal agencies. In areas where the Sonoma County DPS of the 
California tiger salamander is present, Federal agencies already are 
required to consult with us under section 7 of the Act on activities 
they fund, permit, or implement that may affect the species. 
Additionally, even in the absence of a Federal nexus, indirect 
incremental impacts may result if, for example, a city requests project 
modifications via the city's review under the California Environmental 
Quality Act (CEQA), due to the designation of critical habitat. If we 
finalize this proposed critical habitat designation, consultations to 
avoid the destruction or adverse modification of critical habitat would 
be incorporated into the existing consultation process on the Sonoma 
County DPS of the California tiger salamander, because it is listed as 
endangered under the Act.
    In the DEA, we evaluate the potential economic effects on small 
business entities resulting from the implementation of conservation 
actions related to the revised proposed critical habitat for the Sonoma 
County DPS of the California tiger salamander. This analysis is based 
on the estimated incremental impacts associated with the proposed 
rulemaking as described in Chapters 2 through 4 of the DEA. The SBREFA 
analysis evaluates the potential for economic impacts related to 
several categories, including: (1) Residential and commercial 
development, (2) transportation activities, (3) utility activities, and 
(4) incremental administrative costs (IEC 2010, Appendix A). The DEA 
concludes that the proposed rulemaking may affect small entities (IEC 
2010, Appendix A).
    Incremental impacts from the administrative costs of section 7 
consultations on critical habitat associated with residential and 
commercial development are expected for small entities. There are 1,911 
businesses involved in development activities within Sonoma County and, 
of these, 1,896 are considered small businesses. Therefore, 
approximately 99 percent of all building construction companies in 
Sonoma County qualify as small entities. Because information on 
specific third parties that may be involved in future development 
consultations is lacking, the analysis conservatively assumes that all 
of the entities involved in future consultation efforts are small land 
subdivision companies. Because the DEA calculates impacts to small 
businesses at the County-wide scale, it likely overestimates the 
impacts associated with this revised proposed critical habitat, which 
only covers a portion of the County.
    The DEA assumes annual revenues of up to $33.5 million per small 
entity, and annualized impacts may be borne by all small land 
subdivision companies. Annualized impacts to the construction industry 
($6,630 applying a 7 percent discount rate) are estimated to be 
significantly less than the annual revenues that could be generated by 
a single small building construction entity. If all impacts are borne 
by one single small construction company, the estimated annualized 
impact would represent less than 0.1 percent of the maximum total 
annual revenues (IEC 2010, Appendix A). No other incremental impacts 
attributed to transportation or utility activities are expected to be 
borne by entities that meet the definition of small entities (IEC 2010, 
Appendix A). Please refer to the DEA of the proposed critical habitat 
designation for a more detailed discussion of potential economic 
impacts.
    In summary, we have considered whether the revised proposed 
critical habitat would result in a significant economic impact on a 
substantial number of small entities. For the above reasons and based 
on currently available information, we certify that, if promulgated, 
the revised proposed critical habitat for the Sonoma County DPS of the 
California tiger salamander would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Executive Order 13211--Energy Supply, Distribution, or Use

    Executive Order 13211 requires Federal agencies to prepare 
Statements of Energy Effects when undertaking certain actions. The 
Office of Management and Budget's guidance for implementing this 
Executive Order outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to no regulatory action. As 
discussed in Chapter 4 and Appendix A, the DEA finds that none of these 
criteria are relevant to this analysis (IEC 2010, Appendix A). The DEA 
concludes that incremental impacts to utilities are limited to the 
administrative cost of intra-Service consultation associated with a 
habitat conservation plan (HCP), which does not involve third parties. 
Any other impacts are expected to occur as a result of the listing of 
the California tiger salamander, regardless of the designation of 
critical habitat. Therefore, the rule will not affect energy supply, 
distribution, or use. Designation of critical habitat is not expected 
to lead to any adverse outcomes (such as a reduction in electricity 
production or an increase in the cost of energy production or 
distribution), and a

[[Page 2870]]

Statement of Energy Effects is not required.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes.
    The Federated Indians of Graton Rancheria in California is the only 
Tribe that may be affected by this proposed revised critical habitat 
rule. Approximately 254 ac (103 ha) of Tribal lands could be 
designated. The Sacramento Fish and Wildlife Office has entered into 
discussion with the Tribe regarding the proposed revised designation in 
preparation of this revised rule. We will be contacting the Federated 
Indians of Graton Rancheria and requesting comments regarding the 
status of the California tiger salamander on lands under Tribal 
ownership and management.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the Internet at http://www.regulations.gov, or by contacting the Sacramento Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT section).

Author(s)

    The primary authors of this notice are the staff members of the 
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 74 FR 41662, August 18, 2009, as follows:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. The entry for ``Salamander, California tiger'' under 
``AMPHIBIANS'' in the List of Endangered and Threatened Wildlife at 
Sec.  17.11(h) is revised to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
                                                                       AMPHIBIANS
 
                                                                      * * * * * * *
Salamander, California tiger.....  Ambystoma             U.S.A. (CA)........  U.S.A. (CA--Santa    E                 677E, 702     17.95(d)           NA
                                    californiense.                             Barbara County).
Salamander, California tiger.....  Ambystoma             U.S.A. (CA)........  U.S.A. (CA--Central  T                       744     17.95(d)     17.43(c)
                                    californiense.                             California).
Salamander, California tiger.....  Ambystoma             U.S.A. (CA)........  U.S.A. (CA--Sonoma   E                 729E, 734     17.95(d)           NA
                                    californiense.                             County).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Critical habitat for the California tiger salamander (Ambystoma 
californiense) in Sonoma County at Sec.  17.95(d) is proposed to be 
amended by revising the heading, paragraph (53)(i), and the map at 
paragraph (56) to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
    California Tiger Salamander (Ambystoma californiense)
* * * * *
    California Tiger Salamander (Ambystoma californiense) in Sonoma 
County
* * * * *
    (53) * * *
    (i) Standing bodies of fresh water (including natural and manmade 
(e.g., stock)) ponds, vernal pools, and other ephemeral or permanent 
water bodies that typically support inundation during winter and early 
spring and hold water for a minimum of 12 consecutive weeks in a year 
of average rainfall.
* * * * *
    (56) * * *
BILLING CODE 4310-55-P

[[Page 2871]]

[GRAPHIC] [TIFF OMITTED] TP18JA11.002

* * * * *

    Dated: December 30, 2010.
 Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-843 Filed 1-14-11; 8:45 am]
BILLING CODE 4310-55-C