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Designation of Critical Habitat for the Laguna Mountains Skipper (Pyrgus Ruralis Lagunae); Final Rule

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Designation of Critical Habitat for the Laguna Mountains Skipper (Pyrgus Ruralis Lagunae); Final Rule Tuesday, December 12, 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 the Laguna Mountains Skipper (Pyrgus ruralis lagunae); Final Rule VerDate Aug<31>2005 18:03 Dec 11, 2006 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\12DER2.SGM 12DER2 jlentini on PROD1PC65 with RULES2 74592 Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / Rules and Regulations DEPARTMENT OF THE INTERIOR relevant only when, in the absence of statute, make critical habitat the subject designation, destruction or adverse of excessive litigation. As a result, Fish and Wildlife Service modification of the critical habitat critical habitat designations are driven would in fact take place (in other words, by litigation and courts rather than 50 CFR Part 17 other statutory or regulatory protections, biology, and made at a time and under RIN 1018–AU50 policies, or other factors relevant to a timeframe that limits our ability to agency decisionmaking would not obtain and evaluate the scientific and Endangered and Threatened Wildlife prevent the destruction or adverse other information required to make the and Plants; Designation of Critical modification); and (3) designation of designation most meaningful. Habitat for the Laguna Mountains critical habitat triggers the prohibition In light of these circumstances, the Skipper (Pyrgus ruralis lagunae) of destruction or adverse modification Service believes that additional agency of that habitat, but it does not require discretion would allow our focus to AGENCY: Fish and Wildlife Service, specific actions to restore or improve return to those actions that provide the Interior. habitat. greatest benefit to the species most in ACTION: Final rule. Currently, only 475 species or 36 need of protection. percent of the 1,310 listed species in the Procedural and Resource Difficulties in SUMMARY: We, the U.S. Fish and U.S. under the jurisdiction of the Designating Critical Habitat Wildlife Service (Service), are Service have designated critical habitat. designating critical habitat for the We address the habitat needs of all We have been inundated with Laguna Mountains skipper (Pyrgus 1,310 listed species through lawsuits for our failure to designate ruralis lagunae) pursuant to the conservation mechanisms such as critical habitat, and we face a growing Endangered Species Act of 1973, as listing, section 7 consultations, the number of lawsuits challenging critical amended (Act). In total, approximately section 4 recovery planning process, the habitat determinations once they are 6,242 acres (ac) (2,525 hectares (ha)) fall section 9 protective prohibitions of made. These lawsuits have subjected the within the boundaries of the critical unauthorized take, section 6 funding to Service to an ever-increasing series of habitat designation. The critical habitat the States, the section 10 incidental take court orders and court-approved is located in San Diego County, permit process, and cooperative, settlement agreements, compliance with California, on lands under Federal nonregulatory efforts with private which now consumes nearly the entire (3,516 ac (1,423 ha)), State (381 ac (154 landowners. The Service believes that it listing program budget. This leaves the ha)), and private (2,345 ac (948 ha)) is these measures that may make the Service with little ability to prioritize its ownership. difference between extinction and activities to direct scarce listing resources to the listing program actions DATES: This rule becomes effective on survival for many species. January 11, 2007. In considering exclusions of areas with the most biologically urgent originally proposed for designation, we species conservation needs. ADDRESSES: Comments and materials evaluated the benefits of designation in The consequence of the critical received, as well as supporting light of Gifford Pinchot Task Force v. habitat litigation activity is that limited documentation used in the preparation United States Fish and Wildlife Service. listing funds are used to defend active of this final rule, will be available for In that case, the Ninth Circuit lawsuits, to respond to Notices of Intent public inspection, by appointment, invalidated the Service’s regulation (NOIs) to sue relative to critical habitat, during normal business hours, at the defining ‘‘destruction or adverse and to comply with the growing number Carlsbad Fish and Wildlife Office, 6010 modification of critical habitat.’’ In of adverse court orders. As a result, Hidden Valley Road, Carlsbad, CA response, on December 9, 2004, the listing petition responses, the Service’s 92011 (telephone 760/431–9440). The Director issued guidance to be own proposals to list critically final rule, economic analysis, and maps considered in making section 7 adverse imperiled species, and final listing are available via the Internet at http:// modification determinations. This determinations on existing proposals are www.fws.gov/carlsbad/. critical habitat designation does not use all significantly delayed. FOR FURTHER INFORMATION CONTACT: Jim the invalidated regulation in our The accelerated schedules of court- Bartel, Field Supervisor, Carlsbad Fish consideration of the benefits of ordered designations have left the and Wildlife Office, telephone, 760/ including areas in this final designation. Service with limited ability to provide 431–9440; facsimile, 760/431–9624. The Service will carefully manage for public participation or to ensure a SUPPLEMENTARY INFORMATION: future consultations that analyze defect-free rulemaking process before impacts to designated critical habitat, making decisions on listing and critical Role of Critical Habitat in Actual particularly those that appear to be habitat proposals, due to the risks Practice of Administering and resulting in an adverse modification associated with noncompliance with Implementing the Act determination. Such consultations will judicially imposed deadlines. This in Attention to and protection of habitat be reviewed by the Regional Office prior turn fosters a second round of litigation is paramount to successful conservation to finalizing to ensure that an adequate in which those who fear adverse actions. The role that designation of analysis has been conducted that is impacts from critical habitat critical habitat plays in protecting informed by the Director’s guidance. designations challenge those habitat of listed species, however, is On the other hand, to the extent that designations. The cycle of litigation often misunderstood. As discussed in designation of critical habitat provides appears endless, and is very expensive, more detail below in the discussion of protection, that protection can come at thus diverting resources from exclusions under ESA section 4(b)(2), significant social and economic cost. In conservation actions that may provide there are significant limitations on the addition, the mere administrative relatively more benefit to imperiled regulatory effect of designation under process of designation of critical habitat species. ESA section 7(a)(2). In brief, (1) is expensive, time-consuming, and The costs resulting from the designation provides additional controversial. The current statutory designation include legal costs, the cost protection to habitat only where there is framework of critical habitat, combined of preparation and publication of the a federal nexus; (2) the protection is with past judicial interpretations of the designation, the analysis of the VerDate Aug<31>2005 19:36 Dec 11, 2006 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\12DER2.SGM 12DER2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / Rules and Regulations 74593 economic effects and the cost of analysis (DEA) during a comment Peer Reviewer Comments requesting and responding to public period that opened July 7, 2006 (71 FR (1) Comment: One peer reviewer comment, and in some cases the costs 38593) and closed on August 7, 2006. stated that the PCEs appear appropriate; of compliance with the National We contacted appropriate Federal, State, however use of the alternate hostplant Environmental Policy Act (NEPA). and local agencies; scientific Potentilla glandulosa may not be These costs, which are not required for organizations; and other interested necessary or essential because its use many other conservation actions, parties and invited them to comment on may be limited to special circumstances. directly reduce the funds available for the proposed rule during these three Our Response: We agree P. glandulosa direct and tangible conservation actions. comment periods. use appears to be limited to special Background During the first comment period, we circumstances, but we believe the It is our intent in this document to received 8 comment letters directly scientific information available (Pratt reiterate and discuss only those topics addressing the proposed critical habitat 2006, p. 4) indicates it increases directly relevant to the development designation: 4 from peer reviewers, 1 population survival probability in and designation of critical habitat or from a Federal agency, and 3 from circumstances where this alternate relevant information obtained since the organizations or individuals. During the hostplant co-occurs with the most final listing. For more information on second comment period, we received 1 commonly utilized hostplant, Horkelia the biology
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