Comment on FR Doc # E8-17054

Please find our comments pasted below as well as attached as a .pdf. Thank You! Ileene Anderson Staff Biologist, Center for Biological Diversity PMB 447, 8033 Sunset Blvd. Los Angeles, CA 90046 323-654-5943 August 13, 2008 Public Comments Processing, Attn: FWS–R8–ES–2007–0008, Division of Policy and Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 222, Arlington, VA 22203 RE: Comments on Draft Critical Habitat and Economic Analysis for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus). 73 FR. 43910 (July 29, 2008) To whom it concerns, These comments on the U.S. Fish and Wildlife Service’s proposed rule revising the designation of critical habitat for the San Bernardino kangaroo rat (Dipodomys merriami parvus) are submitted on behalf of the staff and members of the Center for Biological Diversity (“Center”). The Center is a national, nonprofit organization whose mission is to protect and restore endangered species and wild places through science, policy, education, advocacy, and environmental law. The Center has over 40,000 members, many of whom reside in California, including the inland empire of cismontane Riverside and San Bernardino counties where the San Bernardino kangaroo rat (SBKR) also currently lives. The Center’s members and staff regularly visit the alluvial fan sage scrub, coastal sage scrub and chaparral where the SBKR are known to exist for purposes of research, photography, hiking, and other recreational, scientific, and educational activities. The Center strongly supports designation by the Service of critical habitat for the SBKR. However, we have many specific concerns about the proposed Critical Habitat. One of our largest concerns is proposed reduction and elimination of existing Critical Habitat designation for locations that are known to be occupied by the SBKR. While the most recent proposal (April 16, 2008) adds some areas back in, it does not include all areas where the SBKR are currently living and reproducing successfully and still fails to justify why these areas are not considered “core” areas and are not included in the Critical Habitat designation. Likewise, the proposed designation fails to identify and include all suitable habitat including unoccupied suitable habitat, which is essential for the recovery of the species. These omissions violate basic purposes and principals of the Endangered Species Act (ESA). In these comments, we include by reference the letters that the Center has submitted to the U.S. Fish and Wildlife Service (USFWS) on August 20, 2007 on the Proposed Designation of Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus); 72 Fed. Reg. 33808 (June 19, 2007), on January 24, 2008 on Additional Comments on the Proposed Designation of Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus); 72 Fed. Reg. 70284 (December 11, 2007), and on May 16, 2008 on Comments on the Proposed Critical Habitat and Economic Analysis for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus); 73 Fed. Reg. 20581 (April 16, 2008). This letter addresses the Addendum to the Economic Analysis dated May 21, 2008 and the re-opening of the comment period on the June 19, 2007 proposed rule, on the proposed revised designation, draft economic analysis (DEA), and addendum to the DEA 73 Fed. Reg. 43910. While we support the addition of 1,579 acres of land for critical habitat designation for the SBKR in addition to the 9,079 acres described in the June 2007 Proposed Rule, we oppose the 349 acres proposed for exclusion under section 4(b)(2) of the Act. This acreage is proposed for exemption in two units: 1) the Wooly Star Preserve Area (WSPA) in unit 1 and 2) the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) in unit 5. This exemption violates the ESA for the following reasons: o The WSPA was not originally established for conservation of the SBKR, but instead for the federally endangered Santa Ana River Woolly Star (Eriastrum densiflorum ssp. sanctorum). While the two species, the SBKR and the woolly star are sympatric in some areas, the regime necessary to ensure the persistence of the woolly star requires scouring floods and deposition of alluvium. This regime could cause “take” of the SBKR. Because the current management plan focuses on maintaining the woolly star, the WSPA will not provide assurances that the SBKR will be protected. To confuse management goals further, there are, in fact, two overlapping draft plans for the same piece of property as well. The Draft Multiple Species Habitat Management Plan (MSHMP) is an Army Corps of Engineers plan that is the long-overdue required mitigation for the Seven Oaks Dam. The Upper Santa Ana River Wash Land Management Plan and Environmental Impact Report (the Wash Plan) is a draft Habitat Conservation plan that also covers this same piece of ground, however, it is not final either. Because the WSPA plan does not managed specifically for the SBKR and the neither of the two un-integrated draft plans (MSHMP and the Wash Plan) are finalized, the failure to designate critical habitat in these areas does not comply with the ESA. o The Western Riverside MSHCP (and the Wash Plan), like all habitat conservation plans, do not replace the need for critical habitat. See Natural Resources Defense Council v. United States Dept. of the Interior, 275 F. Supp. 2d 1136, 1152 (C.D. Cal. 2002) (critical habitat offers distinct protections required by ESA over and above multi-species habitat conservation plans; conservation plans not fungible with critical habitat). In fact, habitat conservation plans are mechanisms for “take” of endangered species, like the SBKR. The proposed Section 4(b)(2) exclusion fails to acknowledge that West Riverside MSHCP is not based on a recovery or even a benefit standard and is therefore illegal. With regards to the Draft Addendum to the Economic Analysis of Critical Habitat Designation for San Bernardino Kangaroo Rat - San Bernardino and Riverside Counties, California - May 21, 2008, once again the cost estimates are highly over valued and exaggerated. All of the costs would be required even if critical habitat had not been designated, because the SBKR currently lives in those areas. Additionally the document fails to address any of the economic benefits of designation of critical habitat. This is the same fatal flaw that we raised in our May 16 letter on the original Economic Analysis which addressed the improper methodology and failure to consider economic benefits. Additionally, it appears that the Service has abdicated responsibility of its ESA regulatory authority if it is true as stated that “SBCFCD self-regulates by avoiding projects in critical habitat that the [staff] biologists determine may adversely affect SBKR or its habitat.” Addendum to EA at pg. 11. A proponent agency does not have the legal authority to determine if a project will adversely affect a federally endangered species or its habitat. At a minimum, these determinations are required to have the Service’s concurrence. In conclusion, the whole process for the re-designation of Critical Habitat is critically flawed. Each one of the proposals and Economic Analysis are either scientifically or economically flawed. In order to recover the species, which is the function of the critical habitat designation, all occupied and appropriate unoccupied habitat needs to be identified and designated. These proposals drastically slash existing critical habitat and fail to include all of the currently occupied habitat, all without any scientifically defensible justifications. If you have any questions with regards to our comments, please feel free to contact us at the address and phone number provided in this letter. Sincerely, /s/ /s/ Ileene Anderson John Buse Staff Biologist Senior Attorney Center for Biological Diversity Center for Biological Diversity