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Designation of Critical Habitat for Astragalus Brauntonii and Pentachaeta Lyonii; Final Rule

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Designation of Critical Habitat for Astragalus Brauntonii and Pentachaeta Lyonii; Final Rule Tuesday, November 14, 2006 Part II Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus brauntonii and Pentachaeta lyonii; Final Rule VerDate Aug<31>2005 20:04 Nov 13, 2006 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\14NOR2.SGM 14NOR2 rwilkins on PROD1PC63 with RULES_2 66374 Federal Register / Vol. 71, No. 219 / Tuesday, November 14, 2006 / Rules and Regulations DEPARTMENT OF THE INTERIOR protecting habitat of listed species, analysis has been conducted that is however, is often misunderstood. As informed by the Director’s guidance. Fish and Wildlife Service discussed in more detail below in the On the other hand, to the extent that discussion of exclusions under section designation of critical habitat provides 50 CFR Part 17 4(b)(2) of the Act, there are significant protection, that protection can come at RIN 1018–AU51 limitations on the regulatory effect of significant social and economic cost. In designation under section 7(a)(2) of the addition, the mere administrative Endangered and Threatened Wildlife Act. In brief, (1) designation provides process of designation of critical habitat and Plants; Designation of Critical additional protection to habitat only is expensive, time-consuming, and Habitat for Astragalus brauntonii and where there is a federal nexus; (2) the controversial. The current statutory Pentachaeta lyonii protection is relevant only when, in the framework of critical habitat, combined absence of designation, destruction or with past judicial interpretations of the AGENCY: Fish and Wildlife Service, adverse modification of the critical statute, make critical habitat the subject Interior. habitat would in fact take place (in other of excessive litigation. As a result, ACTION: Final rule. words, other statutory or regulatory critical habitat designations are driven protections, policies, or other factors by litigation and courts rather than SUMMARY: We, the U.S. Fish and relevant to agency decision-making biology, and made at a time and under Wildlife Service (Service), are would not prevent the destruction or a time frame that limits our ability to designating critical habitat for the adverse modification); and (3) obtain and evaluate the scientific and Astragalus brauntonii (Braunton’s milk- designation of critical habitat triggers other information required to make the vetch) and Pentachaeta lyonii (Lyon’s the prohibition of destruction or adverse designation most meaningful. pentachaeta) pursuant to the modification of that habitat, but it does In light of these circumstances, the Endangered Species Act of 1973, as not require specific actions to restore or Service believes that additional agency amended (Act). For A. brauntonii, improve habitat. discretion would allow our focus to approximately 3,300 acres (ac) (1,337 return to those actions that provide the Currently, only 476 species, or 36 hectares (ha)) fall within the boundaries greatest benefit to the species most in percent of the 1,311 listed species in the of the critical habitat designation. The need of protection. United States under the jurisdiction of critical habitat for A. brauntonii is the Service, have designated critical Procedural and Resource Difficulties in located in Ventura, Los Angeles, and habitat. We address the habitat needs of Designating Critical Habitat Orange Counties, California. For P. all 1,311 listed species through lyonii, approximately 3,396 ac (1,372 We have been inundated with conservation mechanisms such as ha) fall within the boundaries of the lawsuits for our failure to designate listing, section 7 consultations, the critical habitat designation. The critical critical habitat, and we face a growing section 4 recovery planning process, the habitat for P. lyonii is located in Ventura number of lawsuits challenging critical section 9 protective prohibitions of and Los Angeles Counties, California. habitat determinations once they are unauthorized take, section 6 funding to made. These lawsuits have subjected the DATES: This rule becomes effective on the States, the section 10 incidental take December 14, 2006. Service to an ever-increasing series of permit process, and cooperative, court orders and court-approved ADDRESSES: Comments and materials nonregulatory efforts with private settlement agreements, compliance with received, as well as supporting landowners. The Service believes that it which now consumes nearly the entire documentation used in the preparation is these measures that may make the listing program budget. This leaves the of this final rule, are available for public difference between extinction and Service with little ability to prioritize its inspection, by appointment, during survival for many species. activities to direct scarce listing normal business hours, in the branch of In considering exclusions of areas resources to the listing program actions Endangered Species, at the Ventura Fish originally proposed for designation, we with the most biologically urgent and Wildlife Office, 2493 Portola Road, evaluated the benefits of designation in species conservation needs. Suite B, Ventura, CA 93003. The final light of Gifford Pinchot Task Force v. The consequence of the critical rule, economic analysis, and map are United States Fish and Wildlife Service, habitat litigation activity is that limited also available on the Internet at http:// 378 F.3d 1059 (9th Cir 2004) listing funds are used to defend active www.fws.gov/ventura. (hereinafter Gifford Pinchot). In that lawsuits, to respond to Notices of Intent FOR FURTHER INFORMATION CONTACT: case, the Ninth Circuit invalidated the (NOIs) to sue relative to critical habitat, Diane Noda, Field Supervisor, Ventura Service’s regulation defining and to comply with the growing number Fish and Wildlife Office, at the address ‘‘destruction or adverse modification of of adverse court orders. As a result, in ADDRESSES (telephone 805/644–1766; critical habitat.’’ In response, on listing petition responses, the Service’s facsimile 805/644–3958). Persons who December 9, 2004, the Director issued own proposals to list critically use a telecommunications device for the guidance to be considered in making imperiled species, and final listing deaf (TDD) may call the Federal section 7 adverse modification determinations on existing proposals are Information Relay Service (FIRS) at determinations. This critical habitat all significantly delayed. 800–877–8339, 7 days a week and 24 designation does not use the invalidated The accelerated schedules of court- hours a day. regulation in our consideration of the ordered designations have left the SUPPLEMENTARY INFORMATION: benefits of including areas in this final Service with limited ability to provide designation. The Service will carefully for public participation or to ensure a Role of Critical Habitat in Actual manage future consultations that defect-free rulemaking process before Practice of Administering and analyze impacts to designated critical making decisions on listing and critical Implementing the Act habitat, particularly those that appear to habitat proposals, due to the risks Attention to and protection of habitat be resulting in an adverse modification associated with noncompliance with are paramount to successful determination. Such consultations will judicially imposed deadlines. This in conservation actions. The role that be reviewed by the Regional Office prior turn fosters a second round of litigation designation of critical habitat plays in to finalizing to ensure that an adequate in which those who fear adverse VerDate Aug<31>2005 20:04 Nov 13, 2006 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\14NOR2.SGM 14NOR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 71, No. 219 / Tuesday, November 14, 2006 / Rules and Regulations 66375 impacts from critical habitat This comment period closed on August reviewers generally concurred with our designations challenge those 21, 2006. methods and conclusions and provided designations. The cycle of litigation additional information, clarifications, Summary of Comments and appears endless, and is expensive, thus and suggestions to improve the final Recommendations diverting resources from conservation critical habitat rule. Peer reviewer actions that may provide relatively more We requested written comments from comments are addressed in the benefit to imperiled species. the public on the proposed designation following summary and incorporated The costs resulting from the of critical habitat for Astragalus into the final rule as appropriate. designation include legal costs, the cost brauntonii and Pentachaeta lyonii in the We reviewed all comments received of preparation and publication of the proposed rule published on November from the peer reviewers and the public designation, the analysis of the 10, 2005 (70 FR 68982). We also for substantive issues and new economic effects and the cost of contacted appropriate Federal, State, information regarding critical habitat for requesting and responding to public and local agencies; scientific Astragalus brauntonii and Pentachaeta comment, and in some cases the costs organizations; and other interested lyonii, and address them in the of compliance with the National parties and invited them to comment on following summary. Environmental Policy Act (NEPA; the proposed rule. The initial comment Peer Reviewer Comments U.S.C. 4371 et seq.). These costs, which period ended January
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