[Federal Register: December 30, 2008 (Volume 73, Number 250)]
[Proposed Rules]
[Page 79770-79773]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de08-37]
[[Page 79770]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AV51
[FWS-R4-ES-2008-0058; 92210-1117-0000-FY08-B4]
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Alabama Sturgeon (Scaphirhyncus suttkusi)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of comment period, notice of
availability of draft economic analysis, announcement of public
hearing, and amended required determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period and the scheduling of a public
hearing on the proposed revised designation of critical habitat for the
Alabama sturgeon (Scaphirhyncus suttkusi) under the Endangered Species
Act of 1973, as amended (Act). We also announce the availability for
public comment of a draft economic analysis (DEA) and an amended
required determinations section of the proposal. We also seek comment
on our proposal to change the first primary constituent element (PCE)
from its original description because we have determined that the
original wording failed to indicate that the flow needs of the species
are relative to the season of the year. We are reopening the comment
period to allow all interested parties an opportunity to comment
simultaneously on the revised proposed rule, the associated DEA, and
the amended required determinations section. If you submitted comments
previously, you do not need to resubmit them because we have already
incorporated them into the public record and will fully consider them
in preparation of the final rule.
DATES: Written Comments: We will consider comments received on or
before January 29, 2009.
Public Hearings: We announce a public hearing to be held on January
28, 2009, at the Nettles Auditorium at Alabama Southern Community
College, 2800 South Alabama Avenue, Monroeville, AL 36460. The hearing
is open to all who wish to provide formal, oral comments regarding the
proposed revised critical habitat and will be held from 7 p.m. to 9
p.m, central time, with an open house from 5:30 p.m. to 6:30 p.m.,
central time.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R4-ES-2008-0058; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
Public Hearing: A public hearing will be held (see DATES)
at the Nettles Auditorium at Alabama Southern Community College, 2800
South Alabama Avenue, Monroeville, AL 36460.
We will not accept e-mail or faxes. 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: Jeff Powell, Aquatic Species
Biologist, U.S. Fish and Wildlife Service, Alabama Field Office, 1208
Main Street, Daphne, AL 36526; telephone: 251-441-5858; facsimile: 251-
441-6222. If you use a telecommunications device for the deaf (TDD),
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed designation of critical habitat
for the Alabama sturgeon that was published in the Federal Register on
May 27, 2008 (73 FR 30361), our draft economic analysis of the proposed
designation, and the amended required determinations provided in this
document. We will consider information and recommendations from all
interested parties. We are particularly interested in comments
concerning:
(1) The reasons we should or should not designate habitat as
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.).
(2) Specific information on:
(a) The distribution of the Alabama sturgeon;
(b) The amount and distribution of Alabama sturgeon habitat; and
(c) Which habitat contains the features essential for the
conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any foreseeable economic, national security, or other impacts
that may result from the proposed designation and, in particular, any
impacts on small entities, and the benefits of including or excluding
areas that exhibit these impacts.
(5) Whether we can improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to assist us in accommodating public concerns and
comments;
(6) Whether the benefits of excluding any particular area from
critical habitat outweigh the benefits of including that area as
critical habitat under section 4(b)(2) of the Act, after considering
the potential impacts and benefits of the proposed critical habitat
designation.
(7) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the DEA, and how the consequences
of such reactions, if likely to occur, would relate to the conservation
and regulatory benefits of the proposed critical habitat designation.
(9) Information on flow requirements (magnitude, seasonality,
duration, and frequency) of the sturgeon.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
will not consider comments sent by e-mail or fax or to an address not
listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment 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
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule and draft
economic analysis, will be available for public inspection on http://
www.regulations.gov, or by appointment, during normal business hours,
at the U.S. Fish and Wildlife Service, Alabama Field Office (see FOR
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed
rule and the DEA on the Internet at http://www.regulations.gov at
Docket Number FWS-R4-ES-2008-0058, or by mail from the Alabama Field
Office (see FOR FURTHER INFORMATION CONTACT section).
[[Page 79771]]
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat. For more information on previous
Federal actions concerning the Alabama sturgeon, refer to the proposed
designation of critical habitat published in the Federal Register on
May 27, 2008 (73 FR 30361). That proposal had a 60-day comment period,
ending July 28, 2008.
For more information on the threatened Alabama sturgeon or its
habitat, refer to the proposed and final listing rules published in the
Federal Register on March 26, 1999 (64 FR 14676), and on May 5, 2000
(65 FR 26438), or from the Alabama Field Office (see FOR FURTHER
INFORMATION CONTACT).
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed critical
habitat rule is made final, section 7 of the Act will prohibit
destruction or adverse modification of Alabama sturgeon 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.
Public Hearing
Section 4(b)(5)(E) of the Act requires us to hold a public hearing
if any person requests it within 45 days of the publication of a
proposed rule. In response to requests from the public, the Service
will conduct a public hearing for this proposed revision to critical
habitat on the dates and times and at the addresses identified in the
DATES and ADDRESSES sections above.
People wishing to make an oral statement for the record are
encouraged to provide a written copy of their statement and present it
to us at the hearing. In the event there is a large attendance, the
time allotted for oral statements may be limited. Oral and written
statements receive equal consideration. There are no limits on the
length of written comments submitted to us. If you have any questions
concerning the public hearing, please contact the Alabama Field Office
(see FOR FURTHER INFORMATION CONTACT).
People needing reasonable accommodations in order to attend and
participate in the public hearings should contact Jeff Powell, Alabama
Ecological Services Office, at (251) 441-5858, as soon as possible. In
order to allow sufficient time to process requests, please call no
later than one week before the hearing date. Information regarding this
notice is available in alternative formats upon request.
Draft Economic Analysis
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. We have prepared a DEA of our May
27, 2008 (73 FR 30361), proposed rule to designate critical habitat for
the Alabama sturgeon.
The intent of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for the Alabama sturgeon. The DEA quantifies the economic
impacts of all potential conservation efforts for the Alabama sturgeon;
some of these costs will likely be incurred with or without critical
habitat designated. The economic impact of the 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 already in place for the species (e.g., under
the Federal listing 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 designation of critical habitat for the species. In
other words, the incremental costs are those attributable solely to the
designation of critical habitat above and beyond the baseline costs;
these are the costs we may consider in the final designation of
critical habitat. The analysis looks retrospectively at baseline
impacts incurred since the species was listed, and forecasts both
baseline and incremental impacts likely to occur if we finalize the
proposed critical habitat.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
sturgeon over the next 20 years. We determined 20 years is the
appropriate period for analysis because limited planning information
was available for most activities to forecast activity levels for
projects beyond a 20-year timeframe. The DEA quantifies economic
impacts of Alabama sturgeon conservation efforts associated with the
following categories of activity: (1) Potential economic impacts on
activities that depend on water management; (2) potential economic
impacts on activities that affect water quality; (3) potential economic
impacts on dredging activities; and (4) potential impacts on other
activities.
The pre-designation (2000 to 2008) impacts associated with species
conservation activities for the Alabama sturgeon in areas proposed as
critical habitat are approximately $332,000, applying a 3 percent
discount rate, and $367,000, applying a 7 percent discount rate. The
potential post-designation (2009 to 2028) baseline impacts (those
estimated to occur regardless of the critical habitat designation)
associated with species conservation were estimated at $1.33 million
applying a 3 percent discount rate, or $962,000 applying a 7 percent
discount rate. Dredging accounted for 80.1 percent of the potential
post-designation baseline impacts (discounted at 7 percent), followed
by water management (8.3 percent), water quality (7.3 percent), and
other activities (4.4 percent).
We expect incremental impacts attributed to the proposed critical
habitat designation will be associated with water quality, water
management, dredging, and other activities. The DEA estimates the post-
designation incremental economic impacts for the next 20 years from
$93,800 applying a 3 percent discount rate, or $71,200 applying a 7
percent discount rate. Water quality accounted for 32.9 percent
(discounted at 7 percent) of potential incremental impacts, followed by
water management (37.3 percent), other activities (19.7 percent), and
dredging (10.2 percent).
Only the incremental costs that may result from the designation of
critical habitat, over and above the costs associated with species
protection under the Act more generally, may be considered in
evaluating specific areas for potential economic exclusions from
critical habitat; therefore, the methods for distinguishing these two
categories of costs is important. In the absence of
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critical habitat, Federal agencies must ensure that any actions they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered species or threatened species--
costs associated with such actions are considered baseline costs. Once
an area is designated as critical habitat, proposed actions that have a
Federal nexus in this area also will require consultation and potential
modification to ensure that the action does not result in the
destruction or adverse modification of designated critical habitat--
costs associated with these actions are considered incremental costs.
Incremental consultation that takes place as a result of critical
habitat designation may fall into one of three categories: (1)
Additional effort to address adverse modification in a new
consultation; (2) re-initiation of consultation to address effects to
critical habitat; and (3) incremental consultation resulting entirely
from critical habitat designation (i.e., where a proposed action may
affect unoccupied critical habitat). However, because no unoccupied
habitat is being proposed for designation, no consultations in category
3 are projected.
As stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public comment period. In particular, we may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusions will not result in the extinction of this species.
Revision to Proposed Critical Habitat Designation (73 FR 30361)
We are also proposing to change the first primary constituent
element (PCE) from its original description because we have determined
that the original wording failed to indicate that the water flow needs
of the species are relative to the season of the year. For example,
sturgeon likely need a higher flow in the spring to successfully spawn
than the 4,640 cubic feet per second (cfs) flow indicated in the
original PCE. Also, we have determined that it is more descriptive and
helpful to potential action agencies to describe the habitat needs of
the species in relation to flow seasonality and how seasonal flows
allow for maintenance of all life stages. Lastly, we have determined
that while we believe flows lower than 4,640 cfs may involve adverse
effects to the species (and therefore we will continue to recommend
consultation), depending upon other factors, lower flows may not result
in measurable adverse effects. Therefore, focusing on 4,640 cfs in the
PCE fails to account for the complexity of variables that need to be
analyzed to determine effects to the sturgeon.
Therefore, we have decided to revise the proposed PCE as stated
below:
A flow regime (i.e., the magnitude, frequency, duration,
seasonality of discharge over time) necessary to maintain all life
stages of the species in the riverine environment, including
migration, breeding site selection, resting, larval development, and
protection of cool water refuges (i.e., tributaries).
Required Determinations--Amended
In our May 27, 2008, proposed rule (73 FR 30361), 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 data in making these determinations. In this document, we
affirm the information in our proposed rule concerning Executive Order
(E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings),
E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform
Act, 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 data, we revise our required
determination concerning the Regulatory Flexibility Act.
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. Based on our DEA of
the proposed designation, we provide our analysis below for determining
whether the proposed rule would result in a significant economic impact
on a substantial number of small entities. Based on comments we
receive, we may revise this determination as part of our final
rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the Alabama sturgeon would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as activities that depend
on water management, activities that affect water quality, dredging
activities, and other activities such as construction of bridges and
natural gas pipelines. 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 affects activities
conducted, funded, permitted, or authorized by Federal agencies.
If we finalize this proposed critical habitat designation, Federal
agencies
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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 the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed designation of critical habitat for the Alabama
sturgeon. Based on that analysis, only small business entities that
rely on water management, water quality, dredging, or construction were
identified as entities that could be affected by the incremental
impacts from the proposed rule. Impacts described in Appendix A of the
DEA are predominantly associated with pulp mills, wood pellet
manufacturing, residential, commercial, or industrial development
activities, construction activities, and dredging activities in areas
proposed for final critical habitat for the Alabama sturgeon. These
impacts would be expected to be borne by small businesses that rely on
water management, water quality, dredging, or construction. The average
cost to this type of small business over the next twenty years is
estimated to range from $604 to $5,570, discounted at 7 percent. Please
refer to our Draft Economic Analysis of the proposed critical habitat
designation for a more detailed discussion of potential economic
impacts.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. We have identified small entities that may be
impacted by the proposed critical habitat designation. For the above
reasons and based on currently available information, we certify that,
if promulgated, the proposed designation would not have a significant
economic impact on a substantial number of small business entities.
Therefore, an initial regulatory flexibility analysis is not required.
Authors
The primary authors of this notice are the Alabama Field Office and
Southeast Regional Office, U.S. Fish and Wildlife Service.
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 amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as proposed to be
amended at 73 FR 30361, May 27, 2008, as set forth below:
PART 17--[AMENDED]
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. Critical habitat for Alabama sturgeon (Scaphirhyncus suttkusi)
in Sec. 17.95(e), which was proposed to be added on May 27, 2008, at
73 FR 30373, is proposed to be amended by revising paragraph (2)(i) as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes
* * * * *
Alabama sturgeon (Scaphirhynchus suttkusi)
* * * * *
(2) * * *
(i) A flow regime (i.e., the magnitude, frequency, duration,
seasonality of discharge over time) necessary to maintain all life
stages of the species in the riverine environment, including migration,
breeding site selection, resting, larval development, and protection of
cool water refuges (i.e., tributaries).
* * * * *
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: December 18, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-30750 Filed 12-29-08; 8:45 am]
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