Critical Habitat Designation, with Noncompliance with Judicially- Amended (Act)
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Tuesday, August 23, 2005 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 California Tiger Salamander, Central Population; Final Rule VerDate Aug<18>2005 13:44 Aug 22, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\23AUR2.SGM 23AUR2 49380 Federal Register / Vol. 70, No. 162 / Tuesday, August 23, 2005 / Rules and Regulations DEPARTMENT OF THE INTERIOR consumes enormous agency resources, with the most biologically urgent and imposes huge social and economic species conservation needs. Fish and Wildlife Service costs. The Service believes that The consequence of the critical additional agency discretion would habitat litigation activity is that limited 50 CFR Part 17 allow our focus to return to those listing funds are used to defend active RIN 1018–AT68 actions that provide the greatest benefit lawsuits, to respond to Notices of Intent to the species most in need of (NOIs) to sue relative to critical habitat, Endangered and Threatened Wildlife protection. and to comply with the growing number and Plants; Designation of Critical of adverse court orders. As a result, Role of Critical Habitat in Actual listing petition responses, the Service’s Habitat for the California Tiger Practice of Administering and Salamander, Central Population own proposals to list critically Implementing the Act imperiled species, and final listing AGENCY: Fish and Wildlife Service, While attention to and protection of determinations on existing proposals are Interior. habitat is paramount to successful all significantly delayed. ACTION: Final rule. conservation actions, we have The accelerated schedules of court consistently found that, in most ordered designations have left the SUMMARY: We, the U.S. Fish and circumstances, the designation of Service with almost no ability to Wildlife Service (Service), are critical habitat is of little additional provide for adequate public designating critical habitat for the value for most listed species, yet it participation or to ensure a defect-free Central population of the California consumes large amounts of conservation rulemaking process before making tiger salamander (Ambystoma resources. Sidle (1987) stated, ‘‘Because decisions on listing and critical habitat californiense) pursuant to the the Act can protect species with and proposals due to the risks associated Endangered Species Act of 1973, as without critical habitat designation, with noncompliance with judicially- amended (Act). In total, approximately critical habitat designation may be imposed deadlines. This in turn fosters 199,109 acres (ac) (80,576 hectares (ha)) redundant to the other consultation a second round of litigation in which fall within the boundaries of the critical requirements of section 7.’’ Currently, those who fear adverse impacts from habitat designation. The critical habitat only 473 species or 38 percent of the critical habitat designations challenge is located within 19 counties in 1,253 listed species in the U.S. under those designations. The cycle of California. the jurisdiction of the Service have litigation appears endless, is very DATES: This rule becomes effective on designated critical habitat. expensive, and in the final analysis September 22, 2005. provides relatively little additional We address the habitat needs of all protection to listed species. ADDRESSES: Comments and materials 1,253 listed species through received, as well as supporting The costs resulting from the conservation mechanisms such as designation include legal costs, the cost documentation used in the preparation listing, Section 7 consultations, the of preparation and publication of the of this final rule, will be available for Section 4 recovery planning process, the designation, the analysis of the public inspection, by appointment, Section 9 protective prohibitions of economic effects and the cost of during normal business hours, at the unauthorized take, Section 6 funding to requesting and responding to public Sacramento Fish and Wildlife Office, the States, and the Section 10 incidental comment, and in some cases the costs 2800 Cottage Way, Sacramento, CA take permit process. The Service of compliance with the National 95825 (telephone (916) 414–6600). The believes that it is these measures that Environmental Policy Act (NEPA). None final rule, economic analysis, and map may make the difference between of these costs result in any benefit to the will also be available via the Internet at extinction and survival for many species that is not already afforded by http://sacramento.fws.gov or by species. the protections of the Act enumerated contacting the Sacramento Fish and We note, however, that the August 6, earlier, and they directly reduce the Wildlife. 2004, Ninth Circuit judicial opinion, funds available for direct and tangible FOR FURTHER INFORMATION CONTACT: Gifford Pinchot Task Force v. United conservation actions. Arnold Roessler, Sacramento Fish and States Fish and Wildlife Service) found Wildlife Office at the address above our definition of adverse modification Background (telephone (916) 414–6600; facsimile was invalid. In response to the decision, A physical description of the (916) 414–6712). the Director provided guidance to the California tiger salamander, its SUPPLEMENTARY INFORMATION: Service based on the statutory language. taxonomy, distribution, life history, biology, habitat requirements and Procedural and Resource Difficulties in Designation of Critical Habitat Provides characteristics, dispersal and migration, Designating Critical Habitat Little Additional Protection to Species and other relevant information is In 30 years of implementing the Act, We have been inundated with included in the Background sections of the Service has found that the lawsuits for our failure to designate the final rule to list the California tiger designation of statutory critical habitat critical habitat, and we face a growing salamander as a threatened species (69 provides little additional protection to number of lawsuits challenging critical FR 47212; August 4, 2004) and the most listed species, while consuming habitat determinations once they are proposed rule to designate critical significant amounts of available made. These lawsuits have subjected the habitat for the Central population of conservation resources. The Service’s Service to an ever-increasing series of California tiger salamander (69 FR present system for designating critical court orders and court-approved 48570; August 10, 2004). Additional habitat has evolved since its original settlement agreements, compliance with relevant information may be found in statutory prescription into a process that which now consumes nearly the entire the final rules to list the Santa Barbara provides little real conservation benefit, listing program budget. This leaves the County population of the California is driven by litigation and the courts Service with little ability to prioritize its tiger salamander as endangered (65 FR rather than biology, limits our ability to activities to direct scarce listing 57242; September 21, 2000) and to list fully evaluate the science involved, resources to the listing program actions the Sonoma County population of the VerDate Aug<18>2005 13:44 Aug 22, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\23AUR2.SGM 23AUR2 Federal Register / Vol. 70, No. 162 / Tuesday, August 23, 2005 / Rules and Regulations 49381 California tiger salamander as public, answered questions related to occurs helps maintain local adaptations endangered (68 FR 13498; March 19, the designation, and provided that are important for long term 2003), and the final rule to designate information on schedules and contacts viability. critical habitat for the Santa Barbara for additional information and Our Response: In our proposal to population (69 FR 68568; November 24, subsequent open comment periods. designate critical habitat we identified 2004). During the comment period that those five approaches to conserve the opened on August 10, 2004, and closed Central population of the California Previous Federal Actions on October 12, 2004, we received tiger salamander, and we continue to On August 10, 2004, we published in comments directly addressing the apply these approaches in this final the Federal Register a proposed rule to proposed critical habitat designation: rule. To ensure the long term designate critical habitat for the Central one from a peer reviewer, one from a conservation of the species, Primary population of the California tiger Federal agency, six from Department of Constituent Elements (PCEs) were salamander (referred to hereinafter as Defense agencies, one from a State identified (see Primary Constituent ‘‘CTS Central population’’) (69 FR agency, two from local government, and Element section), and critical habitat 48570). On October 13, 2004, a 34 from organizations or individuals. units are designated consistent with complaint was filed in the U.S. District We received a single request for a public these five principles. Court for the Northern District of hearing prior to the deadline of Comment: The peer reviewer stated California (Center for Biological September 24, 2004. Sacramento Fish that the term, ‘‘rescue ponds’’ may be Diversity and Environmental Defense and Wildlife Office staff met with the misapplied or misunderstood by the Council v. U.S. Fish and Wildlife requester and discussed the Public general public