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Braun's Rock-Cress Thursday, June 3, 2004 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 Arabis perstellata (Braun’s Rock-cress); Final Rule VerDate jul<14>2003 18:13 Jun 02, 2004 Jkt 203001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\03JNR2.SGM 03JNR2 31460 Federal Register / Vol. 69, No. 107 / Thursday, June 3, 2004 / Rules and Regulations DEPARTMENT OF THE INTERIOR U.S. Fish and Wildlife Service, 3761 Procedural and Resource Difficulties in Georgetown Road, Frankfort, KY 40601. Designating Critical Habitat Fish and Wildlife Service FOR FURTHER INFORMATION CONTACT: We have been inundated with lawsuits for our failure to designate 50 CFR Part 17 Timothy Merritt at the Tennessee Field Office address above (telephone (931) critical habitat, and we face a growing RIN 1018–AI74 528–6481, extension 211; facsimile number of lawsuits challenging critical (931) 528–7075). habitat determinations once they are Endangered and Threatened Wildlife made. These lawsuits have subjected the SUPPLEMENTARY INFORMATION: and Plants; Designation of Critical Service to an ever-increasing series of Habitat for Arabis perstellata (Braun’s Designation of Critical Habitat Provides court orders and court-approved Rock-cress) Little Additional Protection to Species settlement agreements, compliance with which now consumes nearly the entire AGENCY: Fish and Wildlife Service, In 30 years of implementing the Act, Interior. listing program budget. This leaves the the Service has found that the Service with little ability to prioritize its ACTION: Final rule designation of statutory critical habitat activities to direct scarce listing provides little additional protection to SUMMARY: We, the Fish and Wildlife resources to the listing program actions most listed species, while consuming with the most biologically urgent Service (Service), designate critical significant amounts of available habitat for Arabis perstellata (Braun’s species conservation needs. conservation resources. The Service’s The consequence of the critical rock-cress) pursuant to the Endangered present system for designating critical Species Act of 1973, as amended (Act). habitat litigation activity is that limited habitat has evolved since its original listing funds are used to defend active This endangered species is restricted to statutory prescription into a process that two counties (Rutherford and Wilson) in lawsuits, to respond to Notices of Intent provides little real conservation benefit, (NOIs) to sue relative to critical habitat, Tennessee and three counties (Franklin, is driven by litigation and the courts Owen, and Henry) in Kentucky. We are and to comply with the growing number rather than biology, limits our ability to of adverse court orders. As a result, designating 22 specific geographic areas fully evaluate the science involved, (units) in Kentucky (17 units) and listing petition responses, the Service’s consumes enormous agency resources, own proposals to list critically Tennessee (5 units) as critical habitat for and imposes huge social and economic Arabis perstellata. These units imperiled species and final listing costs. The Service believes that determinations on existing proposals are encompass approximately 648 hectares additional agency discretion would (ha) (1,600 acres (ac)) of upland habitat. all significantly delayed. allow our focus to return to those The accelerated schedules of court Kentucky has approximately 328 ha actions that provide the greatest benefit (810 ac) and Tennessee has ordered designations have left the to the species most in need of Service with almost no ability to approximately 320 ha (790 ac) protection. designated as critical habitat for Arabis provide for adequate public perstellata. Role of Critical Habitat in Actual participation or to ensure a defect-free In the development of this final rule, Practice of Administering and rulemaking process before making we solicited and considered data and Implementing the Act decisions on listing and critical habitat comments from the public on all aspects proposals due to the risks associated of this designation, including data on While attention to and protection of with noncompliance with judicially- economic and other impacts of the habitat is paramount to successful imposed deadlines. This in turn fosters designation. This publication also conservation actions, we have a second round of litigation in which provides notice of the availability of the consistently found that, in most those who fear adverse impacts from final economic analysis for this circumstances, the designation of critical habitat designations challenge designation. critical habitat is of little additional those designations. The cycle of value for most listed species, yet it litigation appears endless, is very DATES: This rule becomes effective on consumes large amounts of conservation expensive, and in the final analysis July 6, 2004. resources. Sidle (1987) stated, ‘‘Because provides relatively little additional ADDRESSES: Comments and materials the ESA can protect species with and protection to listed species. received, as well as supporting without critical habitat designation, The costs resulting from the documentation used in preparation of critical habitat designation may be designation include legal costs, the cost this final rule, are available for public redundant to the other consultation of preparation and publication of the inspection, by appointment, during requirements of section 7.’’ Currently, designation, the analysis of the normal business hours at the Tennessee only 36 percent (445 species) of the economic effects and the cost of Field Office, U.S. Fish and Wildlife 1,244 listed species in the U.S. under requesting and responding to public Service, 446 Neal Street, Cookeville, the jurisdiction of the Service have comment, and in some cases the costs Tennessee 38501. designated critical habitat. We address of compliance with the National You may obtain copies of the final the habitat needs of all 1,244 listed Environmental Policy Act (NEPA), all rule or the economic analysis from the species through conservation are part of the cost of critical habitat field office address above, by calling mechanisms such as listing, section 7 designation. None of these costs result (931) 528–6481, or from our Internet site consultations, the section 4 recovery in any benefit to the species that is not at http://cookeville.fws.gov. planning process, the section 9 already afforded by the protections of If you would like copies of the protective prohibitions of unauthorized the Act enumerated earlier, and they regulations on listed wildlife or have take, section 6 funding to the States, and directly reduce the funds available for questions about prohibitions and the section 10 incidental take permit direct and tangible conservation actions. permits, please contact the appropriate process. The Service believes it is these State Ecological Services Field Office: measures that may make the difference Background Tennessee Field Office, (ADDRESSES between extinction and survival for Arabis perstellata (Braun’s rock-cress) above), or the Kentucky Field Office, many species. is a perennial herb of the mustard VerDate May<21>2004 16:48 Jun 02, 2004 Jkt 203001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\03JNR2.SGM 03JNR2 Federal Register / Vol. 69, No. 107 / Thursday, June 3, 2004 / Rules and Regulations 31461 family (Brassicaceae). It was originally Blue Grass Section (Kentucky) and the populations. Thirty-seven extant described by E. Lucy Braun (1940) from Central Basin Section (Tennessee). Both populations are known from Kentucky specimens collected between 1936 and areas where this species is found are and six in Tennessee. The full range of 1939 in Franklin County, Kentucky (see predominantly underlain by sediments this species in Kentucky is an the proposed rule at 69 FR 4274, of Ordovician age (510–438 million approximately 518-square-kilometer January 9, 2004, for complete years ago) (Quarterman and Powell (200-square-mile) area, with six disjunct information on characteristics, life 1978). The Kentucky populations occur populations in Tennessee. This narrow history, and forest associates). While the in Franklin, Henry, and Owen counties range makes the species vulnerable to final rule for the determination of along the Kentucky River and its potential catastrophic phenomena, such endangered status for this species tributaries (primarily Elkhorn Creek). as disease, extreme weather, and insect recognized the two varieties, these two The Tennessee populations occur in infestations. Also, population levels are varieties are no longer recognized by the Rutherford and Wilson counties, declining (Deborah White, KSNPC, pers. scientific community. Consequently, we principally along the Stones River. comm. 2003). Eight sites previously will treat the plants that occur in both Within the Bluegrass Section of the known in Kentucky were found to be geographically separated areas as one Interior Low Plateaus in Kentucky, the extirpated during 1996 (KSNPC 1996a). species (Arabis perstellata) for the Lexington Limestone Formation is Four previously known populations in purpose of designating critical habitat. common on the slopes entrenched by Tennessee are presumed extirpated Two non-native species (Alliaria the Kentucky River and its major (Jones 1991; Tennessee Department of petiolata (European garlic mustard) and drainages (McDowell
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