E9-22801. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Oregon Chub

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; reopening of comment period, availability of draft economic analysis, amendment of required determinations, and announcement of public hearing.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the proposed designation of critical habitat for the Oregon chub (Oregonichthys crameri) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis (DEA) 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 proposed designation of critical habitat for the Oregon chub, 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. We also announce a public hearing; the public is invited to review and comment on any of the above actions associated with the proposed critical habitat designation at the public hearing or in writing.

DATES:

Written Comments: We will consider public comments received or postmarked on or before October 22, 2009.

Public Hearing: We will hold a public hearing on Monday, October 5, 2009, from 6:30 p.m. to 8:00 p.m. Pacific Time.

ADDRESSES:

Written Comments: You may submit comments by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-R1-ES-2009-0010.

U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R1-ES-2009-0010; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

Public Hearing: We will hold the public hearing at Benton Plaza, Plaza Meeting Room, 408 SW Monroe Ave., Corvallis OR 97330.

Availability of Comments: We will post all comments and the public hearing transcript 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:

Paul Henson, State Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR 97266, by telephone [phone]) or by facsimile (503-231-6195). 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 will accept written comments and information during this reopened comment period on the proposed designation of critical habitat for the Oregon chub that was published in the Federal Register on March 10, 2009 (74 FR 10412), the DEA of the proposed designation of critical habitat for the Oregon chub, and the amended required determinations provided in this document. Verbal testimony or written comments may also be presented during the public hearing (see the Public Hearing section below for more information). We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) The reasons why we should or should not designate certain habitat as critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the Oregon chub from human activity, the type of human activity causing these threats, and whether the benefit of designation would outweigh the threats to the species due to the designation, such that the designation is prudent.

(2) Specific information on:

• The current amount and distribution of Oregon chub habitat.
• What physical and biological factors are essential to the conservation of the Oregon chub and why. Please include information as to the distribution of these essential factors and what special management considerations or protections may be required to maintain or enhance them.
• What areas occupied at the time of listing contain features essential for the conservation of the species which we should include in the designation and why.
• What areas not occupied at the time of listing are essential to 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 the species and the proposed critical habitat.

(4) Any foreseeable economic, national security, or other relevant impacts that may result from the proposed designation and, in particular, any impacts to small entities, and the benefits of including or excluding areas from the proposed designation that exhibit these impacts.

(5) Special management considerations or protections that the essential physical and biological features identified in the proposed critical habitat may require.

(6) Information on the extent to which the description of potential economic impacts in the DEA is complete and accurate.

(7) The likelihood of adverse social reactions to the designation of critical habitat, and how the consequences of such reactions, if they occur, would relate to the conservation of the species and regulatory benefits of the proposed critical habitat designation.

(8) Whether our approach to designating critical habitat could be improved or modified in any way to provide an opportunity for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

You may submit your comments and materials concerning our proposed rule, the associated DEA, and our 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 website. 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, Oregon Fish and Wildlife Office (see the FOR FURTHER INFORMATION CONTACT section). You may obtain copies of the proposed rule and DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R1-ES-2009-0010, from our Web site at http://www.fws.gov/​oregonfwo/​Species/​Data/​OregonChub/​, or by mail from the Oregon Fish and Wildlife Office (see the FOR FURTHER INFORMATION CONTACT section).

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Public Hearing

We are holding a public hearing on the date listed in the DATES section at the address listed in the ADDRESSES section. We are holding this public hearing to provide interested parties an opportunity to provide verbal testimony (formal, oral comments) or written comments regarding the proposed critical habitat designation, the associated DEA, and the amended required determinations section. An informational session will precede the hearing from 4:30 p.m. to 5:30 p.m. Pacific Time. During this session, Service biologists will be available to provide information and address questions on the proposed rule in advance of the formal hearing.

People needing reasonable accommodations in order to attend and participate in the public hearings should contact Paul Henson, Oregon Fish and Wildlife Office, at 503-231-6179, as soon as possible (see FOR FURTHER INFORMATION CONTACT section). 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.

Background

It is our intent to discuss only those topics directly relevant to the proposed designation of critical habitat for the Oregon chub in this notice. For more information on previous Federal actions concerning the Oregon chub, refer to the proposed designation of critical habitat published in the Federal Register on March 10, 2009 (74 FR 10412). For more information on the Oregon chub or its habitat, refer to the final listing rule published in the Federal Register on October 18, 1993 (58 FR 53800), or contact the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

On March 9, 2007, the Institute for Wildlife Protection filed suit against the Service for failure to designate critical habitat for the Oregon chub within the statutory timeframe, and for failure to conduct a 5-year status review (Institute for Wildlife Protection v. U.S. Fish and Wildlife Service). In a settlement agreement with the Plaintiff, we agreed to complete a status review by March 1, 2008, submit a proposed critical habitat rule for the Oregon chub to the Federal Register by March 1, 2009, and to submit a final critical habitat determination to the Federal Register by March 1, 2010.

On March 8, 2007, we published a notice that we would begin a status review of the Oregon chub (72 FR 10547). We completed the Oregon chub's 5-year review on February 11, 2008. We published the proposed designation of critical habitat in the Federal Register on March 10, 2009 (74 FR 10412).

Section 3 of the Act defines critical habitat as “the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with” the Act, “on which are found those physical or biological features (I) essential to the conservation of the species and (II) 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” (16 USC 1532(5)(A)(i and ii)). 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 that affect critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Draft Economic Analysis

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 have prepared a Draft Economic Analysis (DEA), which identifies and analyzes the potential economic impacts associated with the proposed designation of critical habitat for the Oregon chub that we published in the Federal Register on March 10, 2009 (74 FR 10412). The DEA quantifies the economic impacts of all potential conservation efforts for the Oregon chub; some of these costs will likely be incurred regardless of whether or not we designate critical habitat. 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 designation.

The DEA estimates impacts based on activities that are reasonably foreseeable, including, but not limited to, activities that are currently authorized, permitted, or funded, or for which proposed plans are currently available to the public. The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the Oregon chub over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to reasonably forecast activity levels for projects beyond a 20-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 quantifies economic impacts of conservation efforts for the Oregon chub associated with the following categories of activity: (1) Transportation; (2) habitat management; (3) agriculture; (4) water management; and (5) forestry.

Total future (2010-2029) baseline impacts are estimated to be $3.74 million to $12.9 million using a 3 percent discount rate, and $2.74 million to $11.1 million using a 7 percent discount rate. Impacts to mitigation banking for anticipated transportation projects in Unit 2B(1) (Ankeny Willow Marsh) are expected to bear the majority of the total future baseline impacts ($4.59 million), using a 7 percent discount rate. Under the low-end scenario (3 percent discount rate), Unit 3H (Hospital Pond) has the highest levels of impacts ($525,000), stemming primarily from habitat management activities.

The DEA estimates that total potential incremental economic impacts in areas proposed as critical habitat over the next 20 years will be $146,000 using a 3 percent discount rate, and $108,000 using a 7 percent discount rate. Approximately 67 percent of the incremental impacts attributed to the proposed designation of critical habitat are expected to be related to section 7 consultations with Federal agencies for habitat management activities, followed by water management consultations (20.5 percent), transportation consultations (8.3 percent), and forestry consultations (4.5 percent). We do not anticipate section 7 consultations related to agricultural activities during the DEA timeframe.

As stated earlier, we are seeking 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, including information received during or in response to the public hearing. 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 exclusion will not result in the extinction of the species.

Required Determinations — Amended

In our March 10, 2009, proposed rule (74 FR 10412), 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.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), 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 are amending our required determinations concerning E.O. 12866 (Regulatory Planning and Review) and the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply, Distribution, or Use), E.O. 12630 (Takings), and the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

Regulatory Planning and Review (E.O. 12866)

The Office of Management and Budget (OMB) has determined that this proposed rule is not significant and has not reviewed this proposed rule under E.O. 12866. The OMB based its determination upon the following four criteria:

(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(b) Whether the rule will create inconsistencies with other Federal agencies' actions.

(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(d) Whether the rule raises novel legal or policy issues.

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), 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 of the proposed designation, we provide our analysis 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 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. 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 Oregon chub would affect a substantial number of small entities, we considered the number of small entities affected within 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.

If we finalize this proposed critical habitat designation, 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 due to the chub's current status under the Act as an endangered species.

In the DEA, we evaluated the potential economic effects on small business entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the Oregon chub. The DEA identified the estimated incremental impacts associated with the proposed designation of critical habitat as described in sections 3 through 7, and evaluated the potential for economic impacts related to activity categories including water management, agriculture, forestry, transportation, and habitat management.

As discussed in Appendix A of the DEA, of the activities addressed in the analysis, only forestry activities are expected to experience incremental, administrative consultation costs that may be borne by small businesses. These costs may arise when the U.S. Forest Service consults on Federal timber sales, with small logging and timber tract companies as third parties. In Lane and Benton Counties, there are 178 logging operations and 98 timber tract operations that are considered small, representing between 98 and 100 percent of all businesses in the affected industry sector within these two counties. These small businesses may bear a total of $1,440 in incremental impacts related to these consultations through 2029. 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. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed designation of critical habitat for the Oregon chub 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, and Use

On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The OMB'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 Appendix A, the DEA finds that none of these criteria are relevant to this analysis. The DEA concludes that no incremental impacts are forecast associated specifically with this rulemaking on the production, distribution, or use of energy. All forecast impacts are expected to occur associated with the listing of the Oregon chub, regardless of the designation of critical habitat. Therefore, 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 Statement of Energy Effects is not required.

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

In accordance with the Unfunded Mandates Reform Act, the Service makes the following findings:

(a) This rulemaking 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. First, it excludes “a condition of federal assistance.” Second, it 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. “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.”

Critical habitat designation 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. Designation of critical habitat may indirectly impact non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action. 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 DEA of the proposed designation of critical habitat for the Oregon chub, we do not believe that this rule would significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The DEA concludes that incremental impacts may occur due to project modifications that may need to be made for agricultural and development activities; however, these are not expected to affect small governments. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

Executive Order 12630—Takings

In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the Oregon chub in a takings implications assessment. 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. The proposed critical habitat for the Oregon chub does not pose significant takings implications for the above reasons.

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 Oregon Fish and Wildlife Office (see the FOR FURTHER INFORMATION CONTACT section).

Authors

The primary authors of this rulemaking are the staff members of the Oregon Fish and Wildlife Office.

Authority

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

Dated: August 24, 2009

Will Shafroth

Acting Assistant Secretary for Fish and Wildlife and Parks