Vol. 77 Tuesday, No. 132 July 10, 2012

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 Buena Vista Lake ; Proposed Rule

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DEPARTMENT OF THE INTERIOR habitat for the Buena Vista Lake shrew. FOR FURTHER INFORMATION CONTACT: We are reopening the comment period Susan Moore, Field Supervisor, U.S. and Wildlife Service to allow interested parties an Fish and Wildlife Service, Sacramento opportunity to comment on the proposal Fish and Wildlife Office, 2800 Cottage 50 CFR Part 17 to revise the designation of critical Way, W–2605, Sacramento, CA 95825; [Docket No. FWS–R8–ES–2009–0062; habitat for the Buena Vista Lake shrew telephone 916–414–6600; facsimile 4500030114] as proposed to be further revised in this 916–414–6713. If you use a document. telecommunications device for the deaf RIN 1018–AW85 DATES: We will accept comments (TDD), call the Federal Information Endangered and Threatened Wildlife received or postmarked on or before Relay Service (FIRS) at 800–877–8339. and Plants; Designation of Critical September 10, 2012. Comments SUPPLEMENTARY INFORMATION: Habitat for Buena Vista Lake Shrew submitted electronically using the Federal eRulemaking Portal (see Executive Summary AGENCY: Fish and Wildlife Service, ADDRESSES section, below) must be Interior. Why we need to publish a rule. This received by 11:59 p.m. Eastern Time on is a proposed revised designation of ACTION: Proposed rule; revision and the closing date. We must receive critical habitat for the endangered reopening of comment period. requests for public hearings, in writing, Buena Vista Lake shrew under the at the address shown in FOR FURTHER SUMMARY: We, the U.S. Fish and Endangered Species Act. Under the Act, INFORMATION CONTACT by August 24, Wildlife Service (Service), announce any species that is determined to be a 2012. that we are further revising our threatened or endangered species proposed revised designation of critical ADDRESSES: You may submit comments requires designated critical habitat. We habitat for the Buena Vista Lake shrew by one of the following methods: must issue a rule to designate critical ( ornatus relictus) under the (1) Federal eRulemaking Portal: habitat. In total, approximately 5,182 Endangered Species Act of 1973, as http://www.regulations.gov. Search for acres of critical habitat for the Buena amended (Act). In 2009, we proposed to Docket No. FWS–R8–ES–2009–0062 and Vista Lake shrew in Kings and Kern revise our critical habitat designation to then follow the instructions for Counties, , fall within the consist of 4,649 acres (1,881 hectares) of submitting comments. boundaries of the revised critical habitat land in five units in Kern County. That (2) U.S. mail or hand-delivery: Public designation as proposed in this rule. acreage has been recalculated, with use Comments Processing, Attn: FWS–R8– We designated critical habitat for this of current Geographic Information ES–2009–0062; Division of Policy and species in 2005. As part of a settlement Systems technology, as 4,657 acres Directives Management; U.S. Fish and agreement, we agreed to reconsider the (1,885 hectares). In this revised Wildlife Service; 4401 N. Fairfax Drive, designation, and published a proposed proposal, we propose to add 525 acres MS 2042–PDM; Arlington, VA 22203. revised designation for the Buena Vista (212 hectares) as critical habitat in the We request that you send comments Lake shrew in the Federal Register on general areas of Kings and Kern only by the methods described above. October 21, 2009 (74 FR 53999). Based Counties, California, including new We will post all comments on http:// on new information, we are submitting units near Lemoore, Kings County, and www.regulations.gov. This generally a revised proposal to designate critical near Semitropic, Kern County, means that we will post any personal habitat for the Buena Vista Lake shrew California. In total, we are now information you provide us (see the to the Federal Register on or before the proposing to designate approximately Public Comments section below for June 29, 2012, settlement date (see Table 5,182 acres (2,098 hectares) as critical more information). 1 for additional areas).

TABLE 1—REVISIONS AND ADDITIONAL AREAS, IN ACRES, THAT WE ARE INCLUDING AS PROPOSED CRITICAL HABITAT

Critical habitat unit Total State Private

Unit 4, Coles Levee * ...... 270 46 223 Unit 6, Semitropic Ecological Reserve Unit ...... 372 345 27 Unit 7, Lemoore Unit ...... 97 ...... 97

Total ...... 739 391 347 * Addition of 56 acres from 2009 proposal.

The basis for our action. Under the We will prepare a revised draft additional areas identified in the current Endangered Species Act, any economic analysis. On April 28, 2011, revised proposal. endangered or threatened species must we announced in the Federal Register We will incorporate peer review. We have a designated critical habitat. We (76 FR 23781) the availability of our sought comments and information from are required to base the designation on draft economic analysis of the 2009 independent specialists to ensure that the best available scientific data after proposed revised designation. That our 2009 proposed critical habitat taking into consideration economic and economic analysis did not identify any designation was based on scientifically other impacts. The Secretary can areas with disproportionate costs sound data, assumptions, and analyses. exclude an area from critical habitat if associated with the designation. To We invited these peer reviewers to the benefits of exclusion outweigh the ensure that we consider the economic comment on our specific assumptions benefits of designation, unless the impacts of this current proposal, we will and conclusions in the critical habitat exclusion will result in the extinction of revise the draft economic analysis. We designation. We will again seek peer the species. will revise the draft economic analysis review on this revised proposal to revise to include the economic impacts of the critical habitat designation. Information

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we received from peer review will be (c) Special management accommodate public concerns and incorporated in the final revised considerations or protection that may be comments. designation. needed in critical habitat areas we are You may submit your comments and proposing, including managing for the Public Comments materials concerning this proposed rule potential effects of climate change, by one of the methods listed in We intend that any final action (d) What areas not occupied at the ADDRESSES. We request that you send resulting from this proposed rule will be time of listing are essential for the comments only by the methods based on the best scientific and conservation of the species and why, described in the ADDRESSES section. commercial data available and be as and We will post your entire comment— accurate and as effective as possible. We (e) Areas identified in this revision to including your personal identifying will accept written comments and the proposal to revise critical habitat information—on http:// information during this reopened that should not be proposed as critical www.regulations.gov. You may request comment period on the revisions herein habitat and why. at the top of your document that we as well as the proposed revised (3) Land use designations and current withhold personal information such as designation of critical habitat for the or planned activities in the subject areas your street address, phone number, or Buena Vista Lake shrew that was and their possible impacts on proposed email address from public review; published in the Federal Register on revised critical habitat. however, we cannot guarantee that we (4) Information on the projected and October 21, 2009 (74 FR 53999), and on will be able to do so. the draft economic analysis (DEA) of the reasonably likely impacts of climate change on the Buena Vista Lake shrew Comments and materials we receive, 2009 proposed designation and the as well as supporting documentation we amended required determinations and proposed revised critical habitat. (5) Information that may assist us in used in preparing this proposed rule, provided in the April 28, 2011, Federal will be available for public inspection Register (76 FR 23781) document. If you identifying or clarifying the physical and biological features essential to the on http://www.regulations.gov, or by submitted comments or information on appointment, during normal business the 2009 proposed rule (74 FR 53999, conservation of the Buena Vista Lake shrew, especially as they relate to hours, at the U.S. Fish and Wildlife October 21, 2009 and 76 FR 23781, Service, Sacramento Fish and Wildlife April 28, 2011) during any of the habitat conditions for the Buena Vista Lake shrew at Atwell Island, Tulare Office (see FOR FURTHER INFORMATION previous comment periods, please do CONTACT). not resubmit them. These comments are County. included in the public record for this (6) Any probable economic, national Background rulemaking, and we will fully consider security, or other relevant impacts of designating any area that may be It is our intent to discuss only those them in the preparation of our final topics directly relevant to the determination. You may submit your included in the final designation; in particular, any impacts on small entities designation of critical habitat in this comments and materials concerning this proposed rule. In a July 9, 2009, revised proposed rule, the 2009 or families, and the benefits of including or excluding areas that exhibit these settlement agreement, the Service proposed rule, the DEA associated with agreed to publish a new proposal of the 2009 proposed rule, and the impacts. (7) Specific information on the critical habitat for the species which amended required determinations by of the Buena Vista Lake encompassed the same geographic area one of the methods listed in ADDRESSES. shrew, especially in relationship to the as the August 19, 2004 (69 FR 51417) We request comments or information adorned, or , ornate proposed designation. On October 21, from other concerned government shrew (Sorex ornatus ornatus) and their 2009, the Federal Register published agencies, the scientific community, respective ranges. our proposed revised designation of industry, or any other interested party (8) Whether any specific areas we are critical habitat (74 FR 53999), in which concerning the proposal to revise the proposing for critical habitat we proposed five critical habitat units in designation of critical habitat for the designation should be considered for Kern County totaling 4,649 acres (ac) Buena Vista Lake shrew, as revised exclusion under section 4(b)(2) of the (1,881 hectares (ha)). That acreage has herein. We particularly seek comments Act, and whether the benefits of been recalculated, with use of current concerning: potentially excluding any specific area Geographic Information Systems (1) The reasons why we should or outweigh the benefits of including that technology, as 4,657 ac (1,885 ha). In should not designate habitat as ‘‘critical area under section 4(b)(2) of the Act. this revised proposal to revise the habitat’’ under section 4 of the Act (16 (9) Whether the potential exclusion of designation, we are notifying the public U.S.C. 1531 et seq.) including whether the Kern Fan Recharge Unit (Unit 3) of several changes made to the 2009 there are threats to the species from under section 4(b)(2) of the Act, which proposed critical habitat. We are now human activity, the degree of which can is covered by the Buena Vista Lake adding two new critical habitat units to be expected to increase due to the Shrew Special Management Plan for our proposal and revising Unit 4 (Cole’s designation, and whether that increase Kern Fan Water Recharge Site, and Levee) to include a newly discovered in threat outweighs the benefit of Addendum, from final critical habitat is occurrence just to the north of the designation such that the designation of or is not appropriate, whether the existing unit. Second, we are updating critical habitat may not be prudent. benefits of excluding any specific area the descriptions of previously proposed (2) Specific information on: outweigh the benefits of including that units, and revising the criteria and (a) The amount and distribution of area as critical habitat and why, and methods sections to accommodate Buena Vista Lake shrew habitat, whether such an exclusion may or may newer geographical information systems (b) What areas, that were occupied at not lead to the species’ extinction. technologies. This revised proposed rule the time of listing (or are currently (10) Whether we could improve or incorporates new information on the occupied) and that contain features modify our approach to designating distribution and presence of the Buena essential to the conservation of the critical habitat in any way to provide for Vista Lake shrew that was not available species, should be included in the greater public participation and at the time that we completed our 2009 designation and why, understanding, or to better proposed revised critical habitat rule.

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A summary of the information that is than brown. In addition, the Buena habitat quality and availability of water, relevant to this revised proposed critical Vista Lake shrew has a slightly larger or end with the onset of the dry season habitat designation is provided below. body size; shorter tail; with a in May or June (Maldonado 1998). The For more information on previous shorter, heavier rostrum; and a higher majority of females give birth in the Federal actions concerning the Buena and more angular brain-case in dorsal spring, and produce a single litter Vista Lake shrew, refer to the proposed view (Grinnell 1932, pp. 389, 390). containing four to six young. Within a revised designation of critical habitat Grinnell (1932, p. 390) noted evidence population, the number of litters published in the Federal Register on that integration between the adorned produced per year depends on how October 21, 2009 (74 FR 53999). and the Buena Vista Lake shrew early or late in the year the young are Additional relevant information may be subspecies occurred in areas of born; adults are sexually active in found in the final rule to designate geographic overlap. This integration spring, while some young-of-the-year critical habitat for the Buena Vista Lake prompted Freas (1990, pp. 2, 3) to that are born early in the year become shrew published on January 24, 2005 question the legitimacy of the Buena sexually active by late summer (Owen (70 FR 3437). For more information on Vista Lake shrew’s status as a and Hoffmann 1983, p. 4). Because the the Buena Vista Lake shrew or its subspecies distinct from the broader- life expectancy of most is 12 to habitat, refer to the final listing rule ranging adorned ornate shrew. Since the 16 months (Rudd 1955, p. 328), most published in the Federal Register on 1990s, the Sorex ornatus complex individuals probably produce no more March 6, 2002 (67 FR 10101), which is (consisting of eight subspecies in than two litters in their lifetime, with available online at http:// California and one in Baja California) population replacement occurring www.regulations.gov at Docket No. has been the subject of genetic and annually (Collins 1998). FWS–R8–ES–2009–0062, or by mail morphological evaluation (Maldonado Shrews are primarily insectivorous. from the Sacramento Fish and Wildlife 1998). Preliminary results from strictly Due to their high rate of metabolism Office (see FOR FURTHER INFORMATION morphological measurements for this relative to their capacity for energy CONTACT). group did not clarify distribution of the storage (McNab 1991, p. 35), they must various subspecies throughout eat more than their own weight each Species Description California. However, mitochondrial day (Burt and Grossenheider 1964, p. 3) The Buena Vista Lake shrew (Sorex DNA and microsatellite, nuclear in order to withstand starvation and ornatus relictus) is one of nine sequences, and allozyme data have maintain their body weight. Shrews in subspecies within the ornate shrew aided in determining subspecies’ ranges. this family can have an impact on (Sorex ornatus) species complex known From these data, researchers determined surrounding plant communities by to occur in California (Hall 1981, pp. 37, that the Buena Vista Lake shrew is a consuming large quantities of insects, 38; Owen and Hoffmann 1983, pp. 1–4; distinct subspecies from other ornate slugs, and other invertebrates that can Maldonado 1992, p. 3). The Buena Vista shrew subspecies; and that it is unlike influence such things as plant Lake shrew is a , approximately any other sampled throughout the succession and the irruptions the size of a mouse. Like other shrews, southern (population dynamics) of pest insects the subspecies has a long snout, tiny (Maldonado 1998), although later (Williams 1991, p. 1). The Buena Vista bead-like eyes, ears that are concealed, authors noted the unsettled taxonomy of Lake shrew also may be an important or nearly concealed by soft fur, and five ornate shrews (Williams and Harpster prey species for raptors, snakes, and toes on each foot (Burt and 2001, pp. 13, 16). Recent evaluation of mammalian predators, such as foxes and Grossenheider 1964, p. 2; Ingles 1965, the best available scientific information skunks (Maldonado 1992, p. 7). pp. 81–84). Shrews are active day or on the ornate shrews has indicated, Distribution and Historical Range night. When they are not sleeping, they based on analysis of mitochondrial are searching for food (Burt and DNA, that the shrew occurrences in the The Buena Vista Lake shrew was Grossenheider 1964, p. 3). Tulare Basin group together with the likely historically distributed in the Grinnell (1932) was the first to Buena Vista Lake Shrew (Maldonado marshlands of the San Joaquin Valley describe the Buena Vista Lake shrew as 2011 unpaginated; Service 2011 throughout most of the Tulare Basin a new subspecies, based on the type unpaginated; Sacks 2011, unpaginated), (Grinnell 1933, p. 83). The Tulare Basin, specimen and two other specimens although not all species experts agree essentially occupying the southern half collected around the old Buena Vista that methods and genetic sampling are of the San Joaquin Valley, had no Lake bed. A single specimen of the adequate to reach a conclusion (Patton regular outlet to the ocean and shrew had previously been collected in 2011, pp. 1–5). We recognize that there contained Buena Vista, Kern, and Tulare October 1909, at Buttonwillow, a town continue to be questions regarding the Lakes. These lakes were fed by the Kern, approximately 25 miles (mi) (40 taxonomy of ornate shrews found in Kaweah, Tule, and Kings rivers and kilometers (km)) northwest of Buena specific localities within the Tulare their tributaries, and were Vista Lake (Williams 1986, p. 13; Long Basin; however, our current proposal is interconnected by hundreds of square 1998, p. 1; California Academy of based on the currently accepted miles of tule marshes and other Sciences 2012). According to Grinnell’s description of the Buena Vista Lake permanent and seasonal lakes, description, the Buena Vista Lake shrew (Grinnell 1932) and the best , and sloughs (Williams and shrew’s back is predominantly black available science. Harpster 2001, p. 13). was with a buffy-brown speckling pattern, the largest freshwater lake in the United its sides are more buffy-brown than the Life History States west of the Mississippi River. upper surface, and its underside is Ornate shrews, on the average, rarely However, by the time the Buena Vista smoke-gray. The tail is faintly bicolor live longer than 12 months, and Lake shrew was discovered, the beds of and blackens toward the end both above evidence indicates that the normal these lakes were already dry and mostly and below. The Buena Vista Lake shrew lifespan does not exceed 16 months cultivated, with only sparse remnants of differs from its geographically closest (Rudd 1955, p. 328). The Buena Vista the original fauna (Grinnell 1932, p. 1). subspecies, the adorned ornate shrew Lake shrew has a breeding season that Today the lakes and wetlands have been (Sorex ornatus ornatus), by having begins in February or March, and may drained and converted into irrigated darker, grayish-black coloration, rather either extend later in the year, based on agricultural fields, though portions of

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the historical lake beds fill with water ornate shrews at several additional location (Maldonado 2006, pp. 9, 16–19; in years of extraordinary runoff locations within the Tulare Basin, Cypher 2010, p. 1; Maldonado 2011, (Williams and Kilburn 1992, p. 329). including Kern, Kings, and Tulare pp. 1, 2). Several areas north of the Counties, although the shrews were not Tulare Lake bed, including Tranquility, Habitat Characteristics identified to the subspecies level Helm, and the Los Banos Wildlife Area, As discussed in detail in the Critical (Williams and Harpster 2001, p. 14; hosted extremely high numbers of Habitat section below, the Buena Vista Endangered Species Recovery Program ornate shrews in several successful Lake shrew is closely associated with (ESRP) 2005, p. 1; Maldonado 2006, trapping outings, but the shrews dense, riparian understories that p. 5). In 2011, during our 5-year status collected in those locations were also provide food, cover, and moisture review of the Buena Vista Lake shrew, likely to be the adorned ornate shrew, (Maldonado 1992, p. 5). Moisture is we obtained additional information based on analysis of mitochondrial DNA required to support a diverse insect indicating that the shrews at these and microsatellites.(Maldonado 2006, fauna, which is the primary food source localities would be considered Buena pp. 16–19; Maldonado 2011, pp. 1, 2). needed to maintain the Buena Vista Vista Lake shrews (Williams and In 1999 and 2000, shrews, which were Lake shrew’s high metabolism. During Harpster 2001, p. 16; Maldonado 2011; not identified to subspecies, were surveys conducted at Service 2011, pp. 6–9). Two of the captured during a restoration study on Preserve in 1988 and 1990, Freas (1990, occurrences (Lemoore and Semitropic a farmland site that had been recently p. 8) found that the Buena Vista Lake Ecological Preserve (also known as Main retired at the BLM Atwell Island site, shrew preferred mesic (moderately Drain or Chicca and Sons)) are located located approximately 2 mi (3.2 km) moist) habitats over xeric (drier) within general riparian and wetland south of Alpaugh in Tulare County. As habitats, with 25 being captured habitat known to be suitable for the described above, these shrews have in the mesic environments and none in Buena Vista Lake shrew; however, the recently been determined to be Buena xeric habitat. Maldonado (1992, p. 5) third location (Atwell Island) does not Vista Lake shrews; however, the habitat also acknowledged this type of habitat match the habitat that has previously in which they’ve been located does not preference, stating that the Buena Vista been described for the shrew and does match their known wetland habitat. In Lake shrew is closely associated with not contain the physical or biological 1999, most of the captures were on dense, riparian understories that features identified as essential for the ground that was planted to sugar beets provide food, cover, and moisture. He conservation of the Buena Vista Lake and cotton the previous year. Between also noted that moist soil in areas with shrew (see Critical Habitat section). 1999 and 2000, a cover crop of barley an overstory of willows or cottonwoods Additional information below describes was planted and harvested on most of appears to be favored, but may not be what is now known about the Buena the acreage, while a small portion of the an essential habitat feature (Williams Vista Lake shrew at these locations. area had been fallow longer than 5 years and Harpster 2001, p. 13; Maldonado At the time of publication of our and had a cover of weedy, mostly 2011). 5-year review, surveys for Buena Vista exotic, annual plants (Williams and The mesic, lower elevation range of Lake shrews had been conducted at 21 Harpster 2001, p. 13). The area has had the Buena Vista Lake shrew is almost sites and the Buena Vista Lake shrew a long history of irrigated agriculture, completely surrounded by the semi- had been determined to be present in 8 with the site surrounded by intensively arid, higher elevation range of the of the sites (Williams and Harpster farmed, irrigated cropland, thus adorned ornate shrew (Grinnell 1933, 2001, pp. 8–14; ESRP 2005, p. 1; indicating that the location did not pp. 82, 83; Hall 1981, p. 38; Owen and Maldonado 2006, p. 5; Cypher 2010). match the available descriptions of Hoffman 1983, p. 2: Maldonado et al. Although shrews at the Semitropic, Buena Vista Lake shrew habitat. 2001, p. 127). Grinnell (1932, p. 390) Lemoore, and Atwell Island locations Because shrews were found in an noted that adorned ornate shrews had not been previously identified to atypical location, surrounded by occupied the uplands along streamside subspecies in Maldonado 2006, intensively farmed, irrigated cropland, habitat and intergraded with the communication between Service staff their discovery led to speculation that lowland Buena Vista Lake shrews along and species experts classified them as the shrews either were able to persist on the lower courses of streams that enter Buena Vista Lake shrews (Maldonado site during cultivation of irrigated row the Kern-Tulare basin. 2011). Trapping for Buena Vista Lake crops or dispersed to the site after it was fallowed (Williams and Harpster 2001, New Information Specific to Buena shrews has also been completed on the pp. 13, 14). Although the site is located Vista Lake Shrew Distribution Tule Elk Preserve, Pixley National Wildlife Refuge (NWR), Lake within an area that was historically At the time of listing, the Buena Vista Woollomes, the Nature Conservancy’s classified as wetland, there is no Lake shrew was identified as occurring Paine Wildflower Preserve, the Kern wetland or riparian vegetation in the in four isolated locations along an Water Bank, the Voice of America site areas in which the shrews were found approximately 70-mile (mi) (113- west of Delano, Parkway, a and the nearest water source is over kilometer (km)) stretch on the west side parcel between Kern and Buena Vista three-quarters of a mile (1.2 km) to the of the Tulare Basin: At the former Kern Lakes owned by the Bureau of Land north. The lack of typical shrew habitat Lake Preserve on the old Kern Lake bed, Management (BLM), the Buena Vista components, such as standing water and the Kern Fan water recharge area, Coles Lake Recreation Area, and Wind Wolves dense riparian vegetation, have left us to Levee, and the Kern National Wildlife Preserve. speculate that shrews may persist here Refuge (Kern NWR) (67 FR 10101; No shrews were detected at any due to relatively localized deep cracks March 6, 2002). By the time that critical location (Williams 1986, p. 3; Williams in the particular clay soils present in habitat was proposed in 2004, a fifth and Harpster 2001, pp. 6–12), with the this portion of Atwell Island and the occurrence of the Buena Vista Lake exception of the Wind Wolves Preserve. abundance of rodent burrows also shrew had been identified at the However, the shrews detected at Wind present here, both of which may provide historical lake bed of Goose Lake. Wolves Preserve are expected to be additional moisture, invertebrate prey, During the same general period, adorned ornate shrews based on and cover for the shrews. Currently, this continuing surveys of riparian and mitochondrial DNA analysis of one occurrence represents an anomaly that upland habitat resulted in capture of tissue sample available from that does not correspond to the common

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information on Buena Vista Lake shrew required determinations. This document conservation area. Such designation preferences and needs, and we do not also announced a public hearing, which does not allow the government or public have sufficient information to determine was held in Bakersfield, California, on to access private lands. Such long-term suitability of this habitat type June 8, 2011. On March 6, 2012, the designation does not require for Buena Vista Lake shrews. We seek Service was granted an extension by the implementation of restoration, recovery, additional information on occurrence of Court to consider additional information or enhancement measures by non- shrews in habitat other than wetland on the shrew that was identified during Federal landowners. Where a landowner and riparian habitat within the Tulare the 5-year review process (Center for requests Federal agency funding or Basin, and on the suitability of this Biological Diversity v. Kempthorne et authorization for an action that may habitat type for Buena Vista Lake al., Case 1:08–cv–01490–AWI–GSA, affect a listed species or critical habitat, shrews. filed March 7, 2012). The extension the consultation requirements of section New Information on Taxonomy provides for submission of a revised 7(a)(2) of the Act would apply, but even proposed rule to the Federal Register on in the event of a destruction or adverse Since the designation of critical or before June 29, 2012, with modification finding, the obligation of habitat in 2005, additional genetic submission of a final rule on or before the Federal action agency and the analysis has been conducted to evaluate June 29, 2013. landowner is not to restore or recover the patterns of genetic variation within the species, but to implement Critical Habitat the ornate shrew complex, including the reasonable and prudent alternatives to Buena Vista Lake shrew, in the central Background avoid destruction or adverse and southern San Joaquin Valley modification of critical habitat. (Maldonado 2006, p. 16). Maldonado Critical habitat is defined in section 3 Under the first prong of the Act’s (2006) analyzed microsatellite data and of the Act as: definition of critical habitat, areas found 5 genetic groupings among the (1) The specific areas within the within the geographic area occupied by 117 samples that had been collected geographical area occupied by the the species at the time it was listed are from 10 localities in the central- species, at the time it is listed in included in a critical habitat designation southern San Joaquin Valley. The five accordance with the Act, on which are if they contain physical or biological groupings are: (1) Tranquility and Helm; found those physical or biological features (1) which are essential to the (2) Kern NWR, Kern Fan area, Atwell features: conservation of the species and (2) Island, Goose Lake, and Lemoore; (3) (a) Essential to the conservation of the which may require special management Coles Levee; (4) Kern Lake; and (5) Main species and Drain (Semitropic) (Maldonado 2006, (b) Which may require special considerations or protection. For these pp. 16–20). Maldonado (2006, p. 14) management considerations or areas, critical habitat designations determined that the levels of relatedness protection; and identify, to the extent known using the among the five groupings suggest that (2) Specific areas outside the best scientific and commercial data populations south of Tranquility and geographical area occupied by the available, those physical or biological Helm form four distinct population species at the time it is listed, upon a features that are essential to the groupings. However, because sample determination that such areas are conservation of the species (such as sizes from the localities are small, essential for the conservation of the space, food, cover, and protected reflecting the rarity of the shrew in these species. habitat). In identifying those physical locations, Maldonado emphasized that Conservation, as defined under and biological features within an area, it is difficult to draw conclusions from section 3 of the Act, means to use and we focus on the principal biological or the results (Maldonado 2006, pp. 17– the use of all methods and procedures physical constituent elements (primary 19). In our 5-year status review of the that are necessary to bring an constituent elements such as roost sites, subspecies, we reviewed the endangered or threatened species to the nesting grounds, seasonal wetlands, information above and reviewed the point at which the measures provided water quality, tide, soil type) that are proximity of the various occurrence pursuant to the Act are no longer essential to the conservation of the records. We concluded that the best necessary. Such methods and species. Primary constituent elements available information indicates that the procedures include, but are not limited are the elements of physical or populations found south of Tranquility to, all activities associated with biological features that are essential to and Helm form four distinct groupings scientific resources management such as the conservation of the species. of Buena Vista Lake shrew, while research, census, law enforcement, Under the second prong of the Act’s populations at Tranquility and Helm are habitat acquisition and maintenance, definition of critical habitat, we can not the listed species (Service 2011, propagation, live trapping, and designate critical habitat in areas pp. 9, 10). transplantation, and, in the outside the geographic area occupied by extraordinary case where population the species at the time it is listed, upon Previous Federal Actions pressures within a given ecosystem a determination that such areas are On October 21, 2009, the Service cannot be otherwise relieved, may essential for the conservation of the published a revised proposed include regulated taking. species. For example, an area currently designation of critical habitat for the Critical habitat receives protection occupied by the species but that was not Buena Vista Lake shrew (74 FR 53999) under section 7 of the Act through the occupied at the time of listing may be encompassing the same geographic area requirement that Federal agencies essential to the conservation of the as the August 19, 2004 (69 FR 51417), ensure, in consultation with the Service, species and may be included in the proposed designation. The Service that any action they authorize, fund, or critical habitat designation. We published a document on April 28, 2011 carry out is not likely to result in the designate critical habitat in areas (76 FR 23781), announcing the destruction or adverse modification of outside the geographic area occupied by reopening of the comment period for the critical habitat. The designation of a species only when a designation revised proposed critical habitat critical habitat does not affect land limited to its range would be inadequate designation, the associated draft ownership or establish a refuge, to ensure the conservation of the economic analysis, and the amended wilderness, reserve, preserve, or other species.

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Section 4 of the Act requires that we continue to contribute to recovery of Tulare Lakes on the valley floor below designate critical habitat on the basis of this species. Similarly, critical habitat elevations of 350 feet (ft) (107 meters the best scientific data available. designations made on the basis of the (m)) (Grinnell 1932 p. 389; Hall 1981 p. Further, our Policy on Information best available information at the time of 38; Williams and Kilburn 1984 p. 953; Standards Under the Endangered designation will not control the Williams 1986 p. 13; Service 1998 p. Species Act (published in the Federal direction and substance of future 163). With the draining and conversion Register on July 1, 1994 (59 FR 34271)), recovery plans, habitat conservation of the majority of the Buena Vista Lake the Information Quality Act (section 515 plans (HCPs), or other species shrew’s natural habitat from wetland to of the Treasury and General conservation planning efforts if new agriculture, and the channelization of Government Appropriations Act for information available at the time of riparian corridors for water conveyance Fiscal Year 2001 (Pub. L. 106–554; H.R. these planning efforts calls for a structures, the vegetative communities 5658)), and our associated Information different outcome. associated with the Buena Vista Lake Quality Guidelines, provide criteria, shrew were lost or degraded, and establish procedures, and provide Physical or Biological Features nonnative plant species replaced those guidance to ensure that our decisions In accordance with section 3(5)(A)(i) associated with the shrew (Grinnell are based on the best scientific data and 4(b)(1)(A) of the Act and regulations 1932 p. 389; Mercer and Morgan 1991 available. They require our biologists, to at 50 CFR 424.12, in determining which p. 9; Griggs 1992 p. 11; Service 1998 p. the extent consistent with the Act and areas within the geographic area 163). Open water does not appear to be with the use of the best scientific data occupied by the species at the time of necessary for the survival of the shrew. available, to use primary and original listing to designate as critical habitat, The habitat where the shrew has been sources of information as the basis for we consider the physical or biological found contains areas with both open recommendations to designate critical features that are essential to the water and mesic environments habitat. conservation of the species and which (Maldonado 1992 p. 3; Williams and When we are determining which areas may require special management Harpster 2001 p. 12). However, the should be designated as critical habitat, considerations or protection. These availability of water contributes to our primary source of information is include, but are not limited to: improved vegetation structure and generally the information developed (1) Space for individual and diversity, which improves cover during the listing process for the population growth and for normal availability. The presence of water also species. Additional information sources behavior; attracts potential prey species, may include the recovery plan for the (2) Food, water, air, light, minerals, or improving prey diversity and species, articles in peer-reviewed other nutritional or physiological availability. journals, conservation plans developed requirements; Current survey information has by States and counties, scientific status (3) Cover or shelter; identified eight areas where the Buena surveys and studies, biological (4) Sites for breeding, reproduction, or Vista Lake shrew has been found in assessments, other unpublished rearing (or development) of offspring; recent years (Maldonado 2006 p. 16; materials, or experts’ opinions or and Williams and Harpster 2001 p. 1; ESRP personal knowledge. (5) Habitats that are protected from 2005 p. 11): the former Kern Lake Habitat is dynamic, and species may disturbance or are representative of the Preserve (Kern Preserve) on the old Kern move from one area to another over historical, geographic, and ecological Lake bed, the Kern Fan water recharge time. We recognize that critical habitat distributions of a species. area, Coles Levee Ecological Preserve designated at a particular point in time We derive the specific physical or (Coles Levee), the Kern National may not include all of the habitat areas biological features required for the Wildlife Refuge (Kern NWR), the Goose that we may later determine are shrew from studies of the species Lake slough bottoms (Goose Lake), the necessary for the recovery of the habitat, ecology, and life history as Atwell Island land retirement species. For these reasons, a critical described below. Additional demonstration site (Atwell Island), the habitat designation does not signal that information can be found in the final Lemoore Wetland Reserve, and the habitat outside the designated area is listing rule published in the Federal Semitropic Ecological Reserve (also unimportant or may not be needed for Register on March 6, 2002 (67 FR known as Main Drain or Chicca and recovery of the species. Areas that are 10101), the Recovery Plan for Upland Sons). Based on changes in the native important to the conservation of the Species of the San Joaquin Valley, habitat composition and structure, and species, both inside and outside the California (Service 1998), and the Five- descriptions of the habitat where the critical habitat designation, will Year Review of the Buena Vista Lake Buena Vista Lake shrew have been continue to be subject to: (1) Ornate Shrew (Service 2011). We have found, we identify habitat adjacent to, Conservation actions implemented determined that the following physical or within, a matrix of perennial and under section 7(a)(1) of the Act, (2) or biological features are essential for intermittent wetland habitats along regulatory protections afforded by the the Buena Vista Lake shrew: riparian corridors, marsh edges, and requirement in section 7(a)(2) of the Act other palustrine (marsh type) habitats as Space for Individual and Population for Federal agencies to ensure their physical features that are needed by the Growth and Normal Behavior actions are not likely to jeopardize the Buena Vista Lake shrew. continued existence of any endangered Historically, the Buena Vista Lake or threatened species, and (3) the shrew was recorded in association with Food, Water, Air, Light, Minerals, or prohibitions of section 9 of the Act if perennial and intermittent wetland Other Nutritional or Physiological actions occurring in these areas may habitats along riparian corridors, marsh Requirements affect the species. Federally funded or edges, and other palustrine (marsh type) The specific feeding and foraging permitted projects affecting listed habitats in the southern San Joaquin habits of the Buena Vista Lake shrew are species outside their designated critical Valley of California. The shrew not well known. In general, shrews habitat areas may still result in jeopardy presumably occurred in the moist primarily feed on insects and other findings in some cases. These habitat surrounding wetland margins in animals, mostly invertebrates (Harris protections and conservation tools will the Kern, Buena Vista, Goose, and 1990 p. 2; Maldonado 1992 p. 6). Food

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probably is not cached and stored, so The communities in which Buena change and habitat fragmentation have the shrew must forage periodically day Vista Lake shrews have primarily been put immense pressure on species in and night to maintain its high metabolic found are characterized by dense mats highly developed areas like the San rate (Burt and Grossenheider 1964, p. 3). of leaf litter or herbaceous vegetation. Joaquin Valley (Hannah and Lovejoy The vegetation communities The insect prey of the shrew also thrives 2005, p. 4). Development has restricted described above provide a diversity of in the dense matted vegetation. the species to small islands of habitat structural layers and plant species and Although shrews have also been found with little to no connectivity or likely contribute to the availability of at Atwell Island, in an area largely opportunity for expansion of its range. prey for shrews. Therefore, conservation devoid of vegetation but characterized Climate change is a particular challenge of the shrew should include by deep cracks in the soils, little is for a variety of species because the consideration of the habitat needs of currently known of the shrew or habitat interaction between additional stressors prey species, including structural and needs at this site. associated with climate change and species diversity and seasonal The Buena Vista Lake shrew is preyed current stressors could push species availability. Shrew habitat must provide upon by small mammalian predators as beyond their ability to survive (Lovejoy sufficient prey base and cover from well as by avian predators (Maldonado 2005, pp. 325–326), including the Buena which to hunt in an appropriate 1992, p. 7). Dense vegetative structure Vista Lake shrew. configuration and proximity to nesting provides the cover or shelter essential sites. The shrew feeds indiscriminately for evading predators. It also serves as Climate Change on available larvae and adults of several habitat for breeding and reproduction, Our analyses under the Endangered species of aquatic and terrestrial insects. and allows for the protection and Species Act include consideration of An abundance of invertebrates is rearing of offspring and the growth of ongoing and projected changes in associated with moist habitats, such as adult shrews. Therefore, based on the climate. The terms ‘‘climate’’ and wetland edges, riparian habitat, or edges information above, we identify riparian ‘‘climate change’’ are defined by the of lakes, , or drainages that and wetland communities, and areas Intergovernmental Panel on Climate possess a dense vegetative cover (Owen with suitable soil moisture that support Change (IPCC). The term ‘‘climate’’ and Hoffmann 1983 p. 3). Therefore, a complex vegetative structure with a refers to the mean and variability of based on the information above, we thick cover of leaf litter or dense mats different types of weather conditions identify a consistent and diverse supply of low-lying vegetation to be the over time, with 30 years being a typical of invertebrate prey to be an essential essential components of the physical period for such measurements, although component of the biological features and biological features essential to the shorter or longer periods also may be essential for the conservation of the conservation of the species. used (IPCC 2007a, p. 78). The term Buena Vista Lake shrew. ‘‘climate change’’ thus refers to a change Sites for Breeding, Reproduction, or in the mean or variability of one or more Cover or Shelter Rearing (or Development) of Offspring measures of climate (such as, The vegetative communities Little is known about the reproductive temperature or precipitation) that associated in general with Buena Vista needs of the Buena Vista Lake shrew. persists for an extended period, Lake shrew occupancy are characterized The breeding season begins in February typically decades or longer, whether the by the presence of (but are not limited or March and ends in May or June, but change is due to natural variability, to): Populus fremontii (Fremont can be extended depending on habitat human activity, or both (IPCC 2007a, p. cottonwood), Salix spp. (willows), quality and available moisture (Paul 78). Salicornia spp. (glasswort), Elymus spp. Collins 2000, p. 12). The edges of Scientific measurements spanning (wild-rye grass), Juncus spp. (rush wetland or marshy habitat provide the several decades demonstrate that grass), and other emergent vegetation shrew with a sheltered and hospitable changes in climate are occurring, and (Service 1998, p. 163). These environment, and provide a prey base that the rate of change has been faster communities are present at all sites but that enables the shrew to give birth and since the 1950s. Examples include Atwell Island. In addition, Maldonado raise its young. The dense vegetative warming of the global climate system, (1992, p. 6) found shrews in areas of understory also provides young with and substantial increases in moist ground that was covered with leaf cover from predators. Dense vegetation precipitation in some regions of the litter and near other low-lying also allows for the soil moisture world and decreases in other regions. vegetation, branches, tree roots, and necessary for a consistent supply of (For these and other examples, see IPCC fallen logs; or in areas with cool, moist terrestrial and prey (Freas 2007a, p. 30; and Solomon et al. 2007, soil beneath dense mats of vegetation 1990, p. 8; Kirkland 1991, p. 15; pp. 35–54, 82–85). Results of scientific that were kept moist by proximity to the Maldonado 1992, p. 3; Maldonado et al. analyses presented by the IPCC show water line. He described specific habitat 1998, p. 1; Ma and Talmage 2001, p. that most of the observed increase in features that would provide suitable 123). global average temperature since the habitat for the shrew: (1) Dense mid-20th century cannot be explained vegetative cover; (2) a thick, three- Habitats Protected From Disturbance or by natural variability in climate, and is dimensional understory layer of Representative of the Historical, ‘‘very likely’’ (defined by the IPCC as 90 vegetation and felled logs, branches, and Geographic, and Ecological percent or higher probability) due to the detritus or debris; (3) heavy understory Distributions of the Species observed increase in greenhouse gas of leaf litter with duff overlying soils; (4) Preserving what little habitat remains (GHG) concentrations in the atmosphere proximity to suitable moisture; and (5) for the Buena Vista Lake shrew is as a result of human activities, a year-round supply of invertebrate crucial to the survival of the species. particularly carbon dioxide emissions prey. Williams and Harpster (2001, p. There are many factors negatively from use of fossil fuels (IPCC 2007a, pp. 12) determined that, although moist soil impacting and restricting the shrew and 5–6 and figures SPM.3 and SPM.4; in areas with an overstory of willows or its habitat, including selenium toxicity, Solomon et al. 2007, pp. 21–35). Further cottonwoods appeared to be favored, habitat fragmentation, urban confirmation of the role of GHGs comes they doubted that such overstory was development, and the effects of climate from analyses by Huber and Knutti essential. change. The combined effects of climate (2011, p. 4), who concluded it is

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extremely likely that approximately 75 conducting such analyses that applies to history processes and are essential to percent of global warming since 1950 all situations (Glick et al. 2011, p. 3). We the conservation of the species. has been caused by human activities. use our expert judgment and Based on our current knowledge of Scientists use a variety of climate appropriate analytical approaches to the physical or biological features and models, which include consideration of weigh relevant information, including habitat characteristics required to natural processes and variability, as uncertainty, in our consideration of sustain the species’ life-history well as various scenarios of potential various aspects of climate change. processes, we determine that the levels and timing of GHG emissions, to Current climate change projections for primary constituent elements for the evaluate the causes of changes already terrestrial areas in the Northern Buena Vista Lake shrew are: observed and to project future changes Hemisphere indicate warmer air Permanent and intermittent riparian in temperature and other climate temperatures, more intense or wetland communities that contain: conditions (e.g., Meehl et al. 2007, precipitation events, and increased • A complex vegetative structure with entire; Ganguly et al. 2009, pp. 11555, summer continental drying (Field et al. a thick cover of leaf litter or dense mats 15558; Prinn et al. 2011, pp. 527, 529). 1999, pp. 1–3; Hayhoe et al. 2004, p. of low-lying vegetation. Associated All combinations of models and 12422; Cayan et al. 2005, p. 6; IPCC plant species can include, but are not emissions scenarios yield very similar 2007, p. 1181). Climate change may lead limited to, Fremont cottonwoods, projections of increases in the most to increased frequency and duration of willows, glasswort, wild-rye grass, and common measure of climate change, severe storms and droughts rush grass. Although moist soil in areas average global surface temperature (McLaughlin et al. 2002, p. 6074; Cook with an overstory of willows or (commonly known as global warming), et al. 2004, p. 1015; Golladay et al. 2004, cottonwoods appears to be favored, such until about 2030. Although projections p. 504). Climate projections for smaller overstory may not be essential. of the magnitude and rate of warming subregions such as California remain • Suitable moisture supplied by a differ after about 2030, the overall uncertain. However, modeling of shallow water table, irrigation, or trajectory of all the projections is one of hydrological responses to potential proximity to permanent or increased global warming through the climate change in the San Joaquin semipermanent water; and end of this century, even for the watershed suggests that the hydrological • A consistent and diverse supply of projections based on scenarios that system is very sensitive to climatic prey. Although the specific prey species assume that GHG emissions will variations on a monthly and annual utilized by the Buena Vista Lake shrew stabilize or decline. Thus, there is strong basis, with changes in crop phenology have not been identified, ornate shrews scientific support for projections that and water use suggested (Ficklin et al. are known to eat a variety of terrestrial warming will continue through the 21st 2009, pp. 25–27). and aquatic invertebrates, including century, and that the magnitude and Use of downscaled climate modeling amphipods, slugs, and insects. rate of change will be influenced for the Sacramento- With this proposed designation of substantially by the extent of GHG Basin shows projected warming, with critical habitat, we intend to identify the emissions (IPCC 2007a, pp. 44–45; substantial decadal and interannual physical or biological features essential Meehl et al. 2007, pp. 760–764 and 797– variability and altered streamflow to the conservation of the species, 811; Ganguly et al. 2009, pp. 15555– seasonality in the southern San Joaquin through the identification of the 15558; Prinn et al. 2011, pp. 527, 529). Valley, suggesting that water features’ primary constituent elements (See IPCC 2007b, p. 8, for a summary of infrastructure modifications would be sufficient to support the life-history other global projections of climate- needed to address changing conditions processes of the species. All units and related changes, such as frequency of (Vanrheenen et al. 2004, pp. 1, 265– subunits proposed to be designated as heat waves and changes in 279). Due to the Buena Vista Lake critical habitat are currently occupied precipitation. Also see IPCC shrew’s reliance on dense riparian by the Buena Vista Lake shrew. 2011(entire) for a summary of vegetation and adequate moisture in Special Management Considerations or observations and projections of extreme wetland areas, either increased drying of Protections climate events.) its home range or changes in water Various changes in climate may have delivery practices that reduce water When designating critical habitat, we direct or indirect effects on species. runoff could negatively affect the shrew, assess whether the specific areas within These effects may be positive, neutral, while increases in runoff could benefit the geographic area occupied by the or negative, and they may change over the shrew. However, at this time we lack species at the time of listing contain time, depending on the species and adequate information to make features that are essential to the other relevant considerations, such as projections regarding the specific effects conservation of the species and that may interactions of climate with other of climate change and its associated require special management variables (e.g., habitat fragmentation) impacts on the Buena Vista Lake shrew considerations or protection. The (IPCC 2007, pp. 8–14, 18–19). and its habitat. features essential to the conservation of Identifying likely effects often involves this species may require special aspects of climate change vulnerability Primary Constituent Elements for the management considerations or analysis. Vulnerability refers to the Buena Vista Lake Shrew protection to reduce the following degree to which a species (or system) is Under the Act and its implementing threats: susceptible to, and unable to cope with, regulations, we are required to identify All areas included in this proposed adverse effects of climate change, the physical or biological features revision of critical habitat will require including climate variability and essential to the conservation of the some level of management to address extremes. Vulnerability is a function of Buena Vista Lake shrew in areas the current and future threats to the the type, magnitude, and rate of climate occupied at the time of listing, focusing physical and biological features change and variation to which a species on the features’ primary constituent essential to the conservation of the is exposed, its sensitivity, and its elements. We consider primary Buena Vista Lake shrew. Special adaptive capacity (IPCC 2007a, p. 89; constituent elements to be those management considerations or see also Glick et al. 2011, pp. 19–22). components of the physical or biological protection may be required to minimize There is no single method for features that provide for a species’ life- habitat destruction, degradation, or

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fragmentation associated with such In summary, the critical habitat units Criteria Used To Identify Critical threats as the following: Changes in the identified in this designation may Habitat water supply allocations, water require special management As required by section 4(b)(2) of the diversions, flooding, oil and gas considerations or protection to provide Act, we use the best scientific data extraction, nonnative vegetation, and a functioning hydrological regime to available to designate critical habitat. agriculture. For example, the Coles maintain the requisite riparian and We review available information Levee area is within the boundaries of wetland habitat, which is essential in pertaining to the habitat requirements of a proposed oil and gas exploration providing the space and cover necessary the species. In accordance with the Act proposal. Agricultural pressures to to sustain the entire life-cycle needs of and its implementing regulation at 50 convert land to agriculture remain in the the shrew, as well as its invertebrate CFR 424.12(e), we consider whether southern San Joaquin Valley, with prey. Changes in water supply could designating additional areas—outside unauthorized agricultural conversion to result in the alteration of the moisture those currently occupied as well as orchards noted to have occurred regime, which could lead to reduced those occupied at the time of listing— recently in the general area. water quality or hydroperiod, loss of is necessary to ensure the conservation The designated units are located in suitable invertebrate supply for feeding, of the species. At the time of listing, we areas characterized by large-scale and loss of complex vegetative structure were aware of four locations (Kern Lake, agricultural production, and consequently, the units may be exposed for cover. The units may also require Kern National Wildlife Refuge, Coles to a number of pesticides, which could special management considerations due Levee, and the Kern Fan Water Recharge detrimentally impact the species. The to ongoing pressures for agricultural Area) where the Buena Vista Lake shrew Buena Vista Lake shrew currently exists conversion and oil and gas exploration, was extant, but we also noted that on small remnant patches of natural and pesticide use, and vulnerabilities additional remnant patches of wetland habitat in and around the margins of a associated with low population size and and riparian habitat within the Tulare landscape that is otherwise dominated population fragmentation. Basin had not been surveyed and might by agriculture. The Buena Vista Lake support the shrew (Service 2002, p. Summary of Changes From Previously 10103). We considered the geographical shrew could be directly exposed to Proposed Critical Habitat lethal and sublethal concentrations of area occupied by the species to include pesticides from drift during spraying of On January 24, 2005, we designated areas of remnant wetland and riparian habitat within the Tulare Basin. crops, or potentially directly exposed 84 ac (34 ha) in Kern County, California, As noted previously, shrews were also during herbicide treatment of canal as critical habitat for the Buena Vista zones and ditch banks, wetland or known from Atwell Island, Tulare Lake shrew (70 FR 3438). On October County (Williams and Harpster 2001, riparian edges, or roadsides where 21, 2009, we published in the Federal shrews might exist. Reduced pp. 13, 14), but had not been identified Register a revised proposed critical as Buena Vista Lake shrews. In January reproduction in Buena Vista Lake habitat by reissuing the August 19, shrews could be directly caused by 2003, a fifth site, Goose Lake, was 2004, proposed critical habitat, which surveyed and Buena Vista Lake shrews pesticides ingested through grooming, totaled approximately 4,649 ac (1,881 and secondarily from feeding on were also identified at this location ha) (69 FR 51417). That acreage has (ESRP 2004, p. 8). The Goose Lake Unit contaminated insects (Sheffield and been recalculated, with use of current Lochmiller 2001, p. 284). A variety of was included in the original proposal to Geographic Information Systems designate critical habitat (Service 2004). toxicants, including pesticides and technology, as 4,657 ac (1,885 ha). We heavy metals, have been shown to The Lemoore and Semitropic sites were are now proposing to revise this first surveyed for the Buena Vista Lake negatively affect insectivores, including designation to a total of approximately shrews, that have a high basal shrew in April 2005, and Buena Vista 5,182 ac (2,098 ha) consisting of seven Lake shrews were captured at these sites metabolism and tight energy balance. critical habitat units. This is an increase Treatment-related decreases in (ESRP 2005, p. 11, 12). of approximately 525 ac (212 ha) from invertebrate prey availability may be We propose to designate critical the October 21, 2009 revised proposed especially significant to such insectivore habitat in areas within the geographical designation. The additional areas populations (Ma and Talmage 2001, pp. area occupied by the species at the time include revisions to Unit 4 (Coles Levee) 133–152). of listing. We include as occupied those The Buena Vista Lake shrew also and the addition of Unit 6 (Semitropic areas that meet the following two faces high risks of extinction from Ecological Reserve) and Unit 7 (Lemoore conditions: (1) They contain the random catastrophic events (such as Wetland) (see Table 1). We have also physical or biological features that are floods or drought (Service 1998, p. 163). updated the unit descriptions and essential to the conservation of the The low numbers of Buena Vista Lake revised the criteria and methods species, and (2) they were identified as shrews located in small isolated areas sections to accommodate newer occupied in the original listing increases the risk of a random geographical information systems documents or determined to be catastrophic event wiping out entire technologies. Finally, as the result of occupied after 2002. Our reasoning for populations or severely diminishing our new system for designating critical the inclusion of these additional areas Buena Vista Lake shrew numbers habitat (77 FR 25611; May 1, 2012), our (post-2002) is that, based on the biology beyond the scope of recovery. These rule portion now consists of maps only, of the Buena Vista Lake shrew and the threats and others mentioned above without accompanying GIS coordinates. conditions at these units, we have could render the habitat less suitable for However, the coordinates for these maps concluded that these areas were the Buena Vista Lake shrew by washing are available on the Internet at http:// occupied at the time of original listing, away leaf litter and complex vegetation www.regulations.gov at Docket No. but the areas had not yet been surveyed structure (floods) or drying wetland FWS–R8–ES–2009–0062, at http:// at that time. All proposed critical habitat so that vegetative and prey www.fws.gov/sacramento/, or at the habitat units contain natural habitat communities die (drought), and special Sacramento Fish and Wildlife Office, containing the physical and biological management may be needed to address 2800 Cottage Way, Sacramento, CA features essential to the conservation of these threats. 95825. the species.

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As noted above, the Buena Vista Lake of shrews throughout its range. GIS data derived from a variety of shrew is a very small mammal, with an Therefore, these areas are essential to Federal, State, and local agencies, and annual life cycle. Shrews, in general, the conservation of the shrew. from private organizations and have small home ranges in which they In our development of this revised individuals. To identify where essential spend most of their lives, and generally proposed critical habitat for the shrew, habitat for the shrew occurs, we exhibit a high degree of site-attachment, we used the following methods. As evaluated the GIS habitat mapping and although males and juveniles of some required by section 4(b)(2) of the Act species occurrence information from the species have been documented to and regulations at 50 CFR 424.12, we CNDDB (2004). We presumed disperse during the breeding season, used the best scientific and commercial occurrences identified in CNDDB to be with movement within a season varying data available to determine areas that extant unless there was affirmative between species from under 10 feet (a contain the physical and biological documentation that an occurrence had few meters) to, in one case, documented features that are essential for the been extirpated. We also relied on movement of 0.5 mi (800 meters) within conservation of the shrew. This unpublished species occurrence data a year (Churchfield 1990, pp. 55, 56). No included data and information contained within our files, including proposed critical habitat unit is in close contained in, but not limited to, the section 10(a)(1)(A) reports and proximity to other units, precluding the proposed and final rules listing the biological assessments, on site visits, potential for movement of shrews from shrew (65 FR 35033, June 1, 2000, and and on visual habitat evaluation in areas other known occupied sites over the 67 FR 10101, March 6, 2002), the known to have shrews, and in areas relatively short timeframe of 1 to 2 Recovery Plan for Upland Species of the within the historical ranges that had years. All proposed units retain wetland San Joaquin Valley, California (Service potential to contain shrew habitat. or riparian features and are within the 1998), the proposed rule designating For the five units, the polygons of Tulare Basin, the described historical critical habitat (69 FR 51417, August 19, identified habitat were further range of the Buena Vista Lake shrew. 2004), the 5-year status review for the evaluated. Several factors were used to We also consider these proposed shrew (Buena Vista Lake Ornate Shrew delineate the proposed critical habitat critical habitat units to be essential for 5-Year Review: Summary and units from these land areas. We the conservation of the species because Evaluation, Service 2011), research and reviewed any information in the they are areas located throughout the survey observations published in peer- Recovery Plan for Upland Species of the historical range of the species, are reviewed articles (Grinnell 1932, 1933; San Joaquin Valley, California (Service occupied, and are needed to maintain Hall 1981; Owen and Hoffman 1983; 1998), other peer-reviewed literature or the existing distribution of the shrew. Williams and Kilburn 1984; Williams expert opinion for the shrew to All areas are currently occupied and we 1986; Maldonado et al. 2001; and determine if the designated areas would consider these areas to be sufficient for Maldonado et al. 2004), habitat and meet the species’ needs for conservation the conservation of the species. Our wetland mapping and other data and whether these areas contained the generalized criteria for long-term collected and reports submitted by appropriate primary constituent conservation of the Buena Vista Lake biologists holding section 10(a)(1)(A) elements. We refined boundaries using shrew specify that three or more recovery permits, biological assessments satellite imagery, soil type coverages, disjunct occupied sites, which provided to the Service through section vegetation land cover data, and collectively provide at least 4,940 ac 7 consultations, reports and documents agricultural or urban land use data to (2,000 ha) of occupied habitat for the that are on file in the Service’s field eliminate areas that did not contain the shrew, be secured and protected from office (Center for Conservation Biology appropriate vegetation or associated incompatible uses (Service 1998, p. 1990; Maldonado et al. 1998; ESRP native plant species, as well as features 192). 1999a; ESRP 2004; ESRP 2005; and such as cultivated agriculture fields, We have identified the proposed Maldonado 2006), personal discussions development, and other areas that are lands based on the presence of the with experts inside and outside of the unlikely to contribute to the physical or biological features described Service with extensive knowledge of the conservation of the shrew. above, coupled with occupancy by the shrew and habitat in the area, and For the revision of the Coles Levee shrew. Protecting a variety of habitats information received during the two Unit, and the addition of the Lemoore and conditions that contain the physical previous comment periods. and Semitropic Units, we utilized shrew or biological features will allow for the The five critical habitat units that we occurrence data collected by ESRP conservation of the species because it originally proposed were delineated by (Maldonado 2006, pp. 24–27; Phillips will increase the ability of the shrew to creating rough areas for each unit by 2011), projected data within Arcview survive stochastic environmental events screen-digitizing polygons (map units) (ESRI), and delineated unit polygons. (fire, drought, or flood), or demographic using ArcView (Environmental Systems The polygons were created by (low recruitment), or genetic Research Institute, Inc. (ESRI)), a overlaying species location points (inbreeding) problems. Suitable habitat computer Geographic Information (Phillips 2011) onto NAIP imagery within the historical range is limited, System (GIS) program. The polygons (current satellite aerial photography) although conservation of substantial were created by overlaying current and (National Agriculture Imagery Program areas of remaining habitat in the historical species location points 2010) to identify wetland and vegetation Semitropic area is expected to benefit (California Natural Diversity Database features, such as vegetated canals, the shrew. Remaining habitats are (CNDDB) 2004), and mapped wetland canals with cleared vegetation, vulnerable to both anthropogenic and habitats (California Department of Water vegetated sloughs, agricultural fields, natural threats. Also, these areas Resources 1998) or other wetland and general changes in vegetation and provide habitats essential for the location information, onto SPOT land type. We also projected the original maintenance and growth of self- imagery (satellite aerial photography) proposed units onto NAIP imagery and sustaining populations and (CNES/SPOT Image Corporation 1993– again utilized additional GIS data metapopulations (a set of local 2000) and Digital Ortho-rectified derived from a variety of Federal, State, populations where typically migration Quarter Quadrangles (DOQQs) (USGS and local agencies. from one local population to other areas 1993–1998) for areas containing the When determining revised proposed containing suitable habitat is possible) Buena Vista Lake shrew. We utilized critical habitat boundaries, we made

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every effort to avoid including or biological features in the adjacent TABLE 2—OCCUPANCY OF BUENA developed areas such as lands covered critical habitat. VISTA LAKE SHREW BY REVISED by buildings, pavement, and other In summary, we are proposing to PROPOSED CRITICAL HABITAT UNITS structures because such lands lack designate seven units as critical habitat. physical or biological features necessary We have determined that the units were Occu- for the Buena Vista Lake shrew. The occupied at the time of listing, and that Currently scale of the maps we prepared under the Unit pied at they are currently occupied (see Table time of occupied? parameters for publication within the 2). The units provide the physical or listing? Code of Federal Regulations may not biological features needed to support reflect the exclusion of such developed 1. Kern National Wild- yes ...... yes. the Buena Vista Lake shrew. The seven lands. Any such lands inadvertently left life Refuge Unit. inside critical habitat boundaries shown units contain the physical or biological 2. Goose Lake Unit ... yes ...... yes. on the maps of this proposed rule have features essential to the conservation of 3. Kern Fan Water yes ...... yes. been excluded by text in the proposed the species. We currently are proposing Recharge Unit. 4. Coles Levee Unit ... yes ...... yes. rule and are not proposed for to include seven of eight known occupied sites, totaling 5,182 ac 5. Kern Lake Unit ...... yes ...... yes. designation as critical habitat. 6. Semitropic Ecologi- yes ...... yes. Therefore, if the critical habitat is (2,098 ha), as critical habitat. We have cal Reserve Unit. finalized as proposed, a Federal action determined that unoccupied areas are 7. Lemoore Wetland yes ...... yes. involving these lands would not trigger not currently essential to the Unit. section 7 consultation with respect to conservation of the species. critical habitat and the requirement of The approximate area of each revised no adverse modification unless the proposed critical habitat unit is shown specific action would affect the physical in Table 3.

TABLE 3—REVISED PROPOSED CRITICAL HABITAT UNITS FOR THE BUENA VISTA LAKE SHREW [Area estimates reflect all land within critical habitat unit boundaries]

Total Federal State Local Private Critical habitat unit ac ha ac ha ac ha ac ha ac ha

Unit 1, Kern National Wildlife Refuge: Subunit 1A...... 274 111 274 111 ...... Subunit 1B...... 66 27 66 27 ...... Subunit 1C...... 47 19 47 19 ...... Unit 2, Goose Lake ...... 1,279 518 ...... 1,279 518 Unit 3, Kern Fan Water Recharge ...... 2,687 1,088 ...... 2,687 1,088 ...... Unit 4, Coles Levee ...... 270 109 ...... 46 19 ...... 223 90 Unit 5, Kern Lake Unit ...... 90 36 ...... 90 36 Unit 6, Semitropic Ecological Reserve Unit ..... 372 151 ...... 345 140 ...... 27 11 Unit 7, Lemoore Wetland Unit ...... 97 39 ...... 97 39

Total ...... 5,182 2,098 387 157 391 159 ...... 1,716 694 Note: Area sizes may not sum due to rounding.

We present brief descriptions of all present has standing water from plants include Scirpus spp. (bulrushes), units, and reasons why they meet the September 1 through approximately Typha spp. (cattails), Juncus spp. definition of critical habitat for the April 15. After that time, the trees in the (rushes), Heleocharis palustris (spike Buena Vista Lake shrew, below. area may receive irrigation water so the rush), and Sagittaria longiloba area may possibly remain damp through (arrowhead). Other plant communities Unit 1: Kern National Wildlife Refuge May, but the area is dry for on the refuge that support shrews are (Kern NWR) Unit approximately 3 months during the valley iodine bush scrub, dominated by The Kern NWR Unit is completely summer. Another area of known Buena Allenrolfea occidentalis (iodine bush), comprised of Federal lands, and is Vista Lake shrew occurrences has Suaeda spp. (suaeda or seepweed), located within the Kern NWR in standing water from the second week of Frankenia salina (alkali heath), and salt- northwestern Kern County. The Kern August through the winter and into cedar scrub, which is dominated by NWR Critical Habitat Unit consists of early July, and is only dry for a short Tamarix spp. (salt cedar). Both of these three subunits totaling approximately time during the summer. Buena Vista communities occupy sites with moist, 387 ac (157 ha): Subunit 1A contains Lake shrew captures have occurred in alkaline soils. 274 ac (111 ha); subunit 1B contains 66 remnant riparian and slough habitat at The Kern NWR completed a ac (27 ha); and subunit 1C contains 47 the refuge (Service 2005b, pp. 48, 49). Comprehensive Conservation Plan ac (19 ha). The unit was occupied at the This unit is essential to the (CCP) for the Kern and Pixley NWRs in time of listing, is currently occupied, conservation of the species because it is February 2005 (Service 2005b, pp. 1– and contains the physical and biological occupied, and the subunits include 103). The CCP provides objectives for features that are essential to the riparian habitat that contain the primary maintenance and restoration of Buena conservation of the shrew. Shrew constituent elements. Populus fremontii Vista Lake shrew habitat on the Kern habitat in Unit 1 receives water from the trees (Fremont cottonwood), and Salix NWR. Objectives listed in the CCP . One of the areas spp. (willow) are the dominant woody include completing baseline censuses where Buena Vista Lake shrews are plants in riparian areas. Additional and monitoring for the shrew,

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enhancement and maintenance of the channel of the Kern River), allowing are essential to the conservation of the 215-ac (87-ha) riparian habitat, through shrews to persist in the area. Dominant Buena Vista Lake shrew. Remnant regular watering, to provide habitat for vegetation along the slough channels riparian areas are found throughout the riparian species, including the shrew, includes Frankenia spp. (frankenia), area, but are mainly located in narrow and additional restoration of 15 ac (6 ha) Allenrolfea occidentalis (iodine bush), strips near the main channel of the Kern of riparian habitat along canals in a and Suaeda spp. (seepweed). The River and are dominated by Fremont portion of the refuge to benefit the northern portion of the unit consists of cottonwood, Salix spp. (willow species), shrew and riparian bird species (Service scattered mature Allenrolfea Urtica dioica (stinging nettle), Leymus 2005b, pp. 84, 85). The physical and occidentalis shrubs in an area that has triticoides (creeping wild rye), Baccharis biological features essential to the relatively moist soils. The southern salicifolia (mulefat), and Asclepias conservation of the species in this unit portion of the unit is characterized by a fascicularis (narrow-leaved milkweed). may require special management dense mat of Distichilis spp. (saltgrass) The plant communities of the Kern Fan considerations or protection to address and clumps of Allenrolfea and Suaeda Water Recharge Area also include a threats from nonnative species such as spp. A portion of the unit currently mixture of Valley saltbush scrub and salt cedar, and from changes in exhibits inundation and saturation Great Valley mesquite shrub. The Valley hydrology due to off-site water during the winter months. Dominant saltbush scrub is characterized by the management. vegetation in these areas has included presence of Atriplex polycarpa (Valley cattails, bulrushes, Juncus spp., and Unit 2: Goose Lake Unit saltbush), alkali heath, Isocoma saltgrass. acradenia (goldenbush), and Hemizonia The Goose Lake Unit consists of 1,279 The Goose Lake area is managed by pungens (common spikeweed). The ac (518 ha) of private land, and is the Semitropic Water Storage District soils in this area are sandy to loamy located about 10 mi (16 km) south of (WSD) as a ground-water recharge basin. with no surface alkalinity. This Kern NWR in northwestern Kern Water from the California Aqueduct is community seems to intergrade with the County, in the historical lake bed of transferred to the Goose Lake area in Great Valley mesquite scrub plant Goose Lake. We consider that the unit years of abundant water, where it is was occupied at the time of listing and allowed to recharge the aquifer that is community. This is an open scrubland assume that it was not identified as used for irrigated agriculture. At the dominated by Prosopis juliflora occupied at that time because it had not time that the unit was originally (mesquite), Valley saltbush, and yet been surveyed for small . proposed, the landowners, in goldenbush. The soils also are sandy In January 2003, when the area was first cooperation with Ducks Unlimited, Inc. loams of alluvial origin (soil types surveyed for small mammals, and Semitropic WSD, proposed to create deposited by rivers). approximately 6.5 ac (2.6 ha) of and restore habitat for waterfowl in the Willow species, stinging nettles, and potential shrew habitat located along unit area; wetland restoration that we a thick mat of creeping wild rye the Goose Lake sloughs were surveyed expected to substantially increase the dominate the location of the captured (ESRP 2004, p. 8), resulting in the quantity and quality of Buena Vista Buena Vista Lake shrews. Other plant capture of five Buena Vista Lake shrews. Lake shrew habitat on the site. species found in locations where the The maximum distance between two Restoration activities were completed in Buena Vista Lake shrews were trapped shrew captures was 1.6 mi (2.6 km), the last 5 years. The physical and include Fremont cottonwood and salt suggesting that Buena Vista Lake shrews biological features essential to the grass. At the time of capture, this site are widely distributed on the site. The conservation of the species in this unit had no standing water within 328 feet unit has been determined to have the may require special management (100 meters) of the location where the necessary PCEs present and therefore considerations or protection to address Buena Vista Lake shrews were caught. meets the definition of critical habitat threats from nonnative species such as The physical and biological features under section 3(5)(A)(i) of the Act. The salt cedar, from recreational use, and essential to the conservation of the unit was included in the 2004 proposed from changes in hydrology due to water species in this unit may require special critical habitat designation. Although management and maintenance of water management considerations or we continue to presume that the unit conveyance facilities. There are protection to address threats from meets the definition of critical habitat currently no conservation agreements nonnative species such as salt cedar, under section 3(5)(A)(i) of the Act, we covering this land. and from changes in hydrology due to are also proposing to designate the unit off-site water management, especially in under section 3(5)(A)(ii) of the Act. Unit 3: Kern Fan Water Recharge Unit dry years. The unit is adjacent to, but Even if the unit was not occupied at the The Kern Fan Water Recharge Area time of listing, it is essential for the Unit consists of 2,687 ac (1,088 ha) of not included within, the Kern Water conservation of the shrew because it is private land, which is within the 2,800- Bank Habitat Conservation Plan/Natural considered to be currently occupied, is ac, (1,133-ha) Kern Fan Water Recharge Community Conservation Plan (Kern within the subspecies’ range, and Area, and is owned by the City of Water Bank HCP/NCCP) permit area includes riparian habitat containing the Bakersfield. The unit is located along (Kern Water Bank Authority 1997, p. 7). PCEs in sloughs and wetlands and the banks of the Kern River, west of Over the past seven years, the City of meets our criteria for designation as Bakersfield, and is adjacent to the Kern Bakersfield has worked with the Service critical habitat. Water Bank, a 19,000-ac (7,689-ha) area to make management changes to benefit In the past, Buena Vista Lake shrew owned by the Kern Water Bank the Buena Vista Lake shrew, and has habitat in this unit experienced Authority. Portions of the recharge area completed annual monitoring to assess widespread losses due to the diversion are flooded sporadically, forming habitat conditions for the Buena Vista of water for agricultural purposes. fragmented wetland communities Lake shrew. The City of Bakersfield is However, small, degraded examples of throughout the area. working with the Service to improve and riparian This unit was occupied at the time of assurances for protection of the Buena communities still exist in the area of listing, is currently occupied by the Vista Lake shrew in this unit. The Goose Lake and Jerry Slough (a portion Buena Vista Lake shrew, and includes Service is considering whether to of historical Goose Slough, an overflow the physical and biological features that exclude this unit from critical habitat.

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Unit 4: Coles Levee Unit riparian habitat along the Outlet Canal contains the PCEs identified for the within the Tule Elk Reserve. shrew. The Kern Lake area was formerly The Coles Levee Unit is This unit is essential to the managed by the Nature Conservancy for approximately 270 ac (109 ha) in Kern conservation of the species because it is the Boswell Corporation, and was once County, of which 223 ac (90 ha) is occupied and includes willow- thought to contain the last remaining owned by Aera Energy. An additional cottonwood riparian habitat that population of the Buena Vista Lake 46 ac (19 ha) are State lands within the contains the PCEs. The physical and shrew. Tule Elk Reserve. The unit is located biological features essential to the The physical and biological features northeast of Tupman Road near the conservation of the species in this unit essential to the conservation of the town of Tupman, is directly northeast of may require special management species in this unit may require special the California Aqueduct, and is largely considerations or protection to address management considerations or within the Coles Levee Ecosystem threats from construction activities protection to address threats from Preserve, which was established as a associated with projects to tie-in water reductions in water delivery, from mitigation bank in 1992, in an conveyance facilities to the California effects of surrounding agricultural use, agreement between Atlantic Richfield Aqueduct and oil and gas-related and from industrial and commercial Company (ARCO) and California activites, including pipeline projects. development. The proposed Maricopa Department of Fish and Game. The The area adjacent to Coles Levee is the Sun solar development is within a 2- preserve serves as a mitigation bank to site of active gas and oil production, and mile radius of the unit. This area does compensate for the loss of habitat for the Coles Levee Unit is within an area not have a conservation easement and is listed upland species; the Buena Vista that was recently proposed for oil and managed by the landowners. We are Lake shrew is not a covered species. The gas exploration. unaware of any plans to develop this preserve is mostly highly degraded An HCP was issued for the Coles site; however, it is within a matrix of upland saltbush and mesquite scrub, Levee Ecological Preserve Area. lands managed for agricultural and is interlaced with slough channels However, the HCP permit expired when production. for the historical Kern River fan where ARCO sold the property to the current Unit 6: Semitropic Ecological Reserve the river entered Buena Vista Lake from owner and the permit was not Unit the northeast. Most slough channels are transferred. Unit 6 is located about 7 mi (11 km) dry except in times of heavy flooding, Unit 5: Kern Lake Unit every several years. The preserve also south of Kern NWR and 7 mi (11 km) contains approximately 2 mi (3.2 km) of The Kern Lake Unit is approximately north of the Goose Lake unit along the much-degraded riparian communities 90 ac (36 ha) in size, and is located at Main Drain Canal. It is bordered on the along the Kern River. the edge of the historical Kern Lake, south by State Route 46, approximately approximately 16 miles south of 2 mi (3 km) east of the intersection with A manmade , which was Bakersfield in southwestern Kern Interstate 5, and is 372 ac (151 ha) in constructed in the late 1990s or early County. This unit lies between Hwy 99 size. The State of California, Department 2000s, is located within the unit. Water and Interstate 5, south of Herring Road of Fish and Game, holds 345 ac (140 ha) from the adjacent oil fields is constantly near the New Rim Ditch. The unit was under fee title, and manages the area as pumped into the basin. Vegetation occupied at the time of listing, is part of the Semitropic Ecological includes bulrushes, stinging nettle, considered currently occupied, and Reserve. An additional 27 ac (11 ha) of mulefat, salt grass, Atriplex lentiformis contains the physical and biological the unit are private land. (quailbush), and Conium maculatum features that are essential to the We consider that the unit was (poison hemlock). There are a few conservation of the Buena Vista Lake occupied at the time of listing and willows and Fremont cottonwoods shrew. Since the advent of reclamation assume that it was not identified as scattered throughout the area. This site and development, the surrounding occupied at that time because it had not runs parallel to the Kern River bed. lands have seen intensive cattle and yet been surveyed for small mammals In the 2009 proposed rule (74 FR sheep ranching and, more recently, (see Criteria Used To Identify Critical 53999. October 21, 2009), we cotton and alfalfa farming. Currently, Habitat). Buena Vista Lake shrews were reproposed 214 ac (87 ha) of critical Kern Lake itself is generally a dry lake identified in the unit on April 27, 2005, habitat as the Coles Levee Unit. In this bed; however, the unit contains wet when it was first surveyed for small unit, Buena Vista Lake shrews were alkali meadows and a spring-fed pond mammals (ESRP 2005, pp. 10–13). At originally captured along a nature trail known as ‘‘Gator Pond,’’ which is that time, Buena Vista Lake shrews were that was adjacent to a slough, and were located near the shoreline of the lake found in the southwestern portion of the close to the water’s edge where there bed. A portion of the runoff from the unit, next to the Main Drain Canal. The was abundant ground cover but little or surrounding hills travels through unit has been determined to have the no canopy cover. The unit is delineated underground aquifers, surfacing as necessary PCEs present and therefore in a general southeast to northwest artesian springs at the pond. The heavy meets the definition of critical habitat direction, along both sides of the Kern clay soils support a distinctive under section 3(5)(A)(i) of the Act. River Flood Channel and Outlet Canal, assemblage of native species, providing Although we presume that the unit which runs through the Preserve. an island of native vegetation situated meets the definition of critical habitat During a construction project in the among agricultural lands. The unit under section 3(5)(A)(i) of the Act, we summer of 2011, two Buena Vista Lake contains three ecologically significant are also proposing to designate the unit shrews were found just north of the natural communities: Freshwater marsh, under section 3(5)(A)(ii) of the Act. previous northerly boundary of the unit. alkali meadow, and iodine bush scrub. Even if the unit was not occupied at the We have therefore extended the unit The moisture regime for shrew habitat time of listing, it is essential for the boundary along both sides of the canal in this unit is maintained by agricultural conservation of the Buena Vista Lake to encompass the contiguous riparian runoff from the New Rim ditch. This shrew due to its location approximately habitat to the point where water is no unit is essential to the conservation of midway between Units 1 and 2, and longer retained and riparian vegetation the species because it is currently location near the southern edge of essentially stops, thereby including occupied and includes habitat that remnant natural wetland and riparian

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habitat. The unit is also considered it was not identified as occupied at that species or result in the destruction or essential for the conservation of the time because it had not yet been adverse modification of designated shrew because it is considered to be surveyed for small mammals (see critical habitat of such species. In currently occupied, and contains a Criteria Used To Identify Critical addition, section 7(a)(4) of the Act matrix of riparian and wetland habitat, Habitat). Buena Vista Lake shrews were requires Federal agencies to confer with including riparian habitat both along the identified in the unit April 20–22, 2005, the Service on any agency action which canal, and within and adjacent to oxbow when it was first surveyed for small is likely to jeopardize the continued and slough features. mammals (ESRP 2005, pp. 10–13). The existence of any species proposed to be The major vegetative associations at unit has been determined to have the listed under the Act, or result in the the site are valley saltbush scrub and necessary PCEs present and, therefore, destruction or adverse modification of valley sink scrub. Valley saltbush scrub meets the definition of critical habitat any critical habitat proposed to be is found within the relatively well- under section 3(5)(A)(i) of the Act. designated for such species. drained soils at slightly higher Although we presume that the unit Decisions by the 5th and 9th Circuit elevations, and the valley sink scrub is meets the definition of critical habitat Courts of Appeals have invalidated our found in the heavier clay soils. under section 3(5)(A)(i) of the Act, we regulatory definition of ‘‘destruction or Dominant vegetation at the site includes are also proposing to designate the unit adverse modification’’ (50 CFR 402.02) Bromus diandrus (ripgut brome), under section 3(5)(A)(ii) of the Act. The (see Gifford Pinchot Task Force v. U.S. Bromus madritensis ssp. rubens (red unit is essential for the conservation of Fish and Wildlife Service, 378 F. 3d brome), Carex spp. (sedges), Juncus spp. the shrew due to its location 1059 (9th Cir. 2004) and Sierra Club v. (rushes), Polygonum spp. (knotweed), approximately at the northernmost U.S. Fish and Wildlife Service et al., 245 Polypogon monspeliensis (rabbitfoot extent of the subspecies’ range, due to F.3d 434, 442 (5th Cir. 2001)), and we grass), Rumex crispus (curly dock), and occupancy, and due to remnant natural do not rely on this regulatory definition Vulpia myuros (foxtail fescue). There is wetland and riparian habitat that when analyzing whether an action is a light overstory of Populus ssp. contains the PCEs. likely to destroy or adversely modify (cottonwoods) at the most successful The site was created to provide a critical habitat. Under the statutory Buena Vista Lake shrew capture site. place for city storm water to percolate provisions of the Act, we determine The physical and biological features and drop contaminants to shield the destruction or adverse modification on essential to the conservation of the during years of flood runoff. the basis of whether, with species in this unit may require special Portions of the area are flooded implementation of the proposed Federal management considerations or periodically, forming fragmented action, the affected critical habitat protection to address threats from wetland communities throughout the would continue to serve its intended ongoing oil and gas exploration and area. conservation role for the species. development, ongoing conversion of The plant communities of the If a Federal action may affect a listed natural lands for agricultural Lemoore Wetland Reserve Unit include species or its critical habitat, the development, changes in water a mixture of vegetation communities: management, weed control activities, responsible Federal agency (action nonnative grassland, vernal marsh, and agency) must enter into consultation including use of herbicides, and the elements of valley sink scrub. Brassica occurrence of range trespass in an open with us. Examples of actions that are nigra (black mustard), Bromus subject to the section 7 consultation range area. Semitropic reserve lands are madritensis ssp. rubens (red brome), B. not fenced and are subject to occasional process are actions on State, tribal, hordeaceus (soft chess), Distichlis local, or private lands that require a range trespass by sheep and cattle spicata (saltgrass), Frankenia salina (CDFG 2012). State lands in the unit Federal permit (such as a permit from (alkali heath), Juncus spp. (rushes), the U.S. Army Corps of Engineers under were acquired under the provisions of Lactuca serriola (prickly lettuce), the Metro Bakersfield Habitat section 404 of the Clean Water Act (33 Polypogon monspeliensis (rabbitfoot U.S.C. 1251 et seq.) or a permit from the Conservation Plan (HCP), and are grass), Populus ssp. (cottonwood), curly managed for listed upland species. Service under section 10 of the Act) or dock (Rumex crispus), willow (Salix that involve some other Federal action Location of the Main Drain Canal in the ssp), bulrush (Scirpus ssp.), common unit, and the presence of wetland (such as funding from the Federal sowthistle (Sonchus oleraceus), cattails Highway Administration, Federal features are expected to benefit the (Typha ssp.), foxtail fescue (Vulpia shrew, although the shrew is not a Aviation Administration, or the Federal myuros) and cocklebur (Xanthium Emergency Management Agency). covered species under the HCP. The strumarium) are common throughout State does not yet have a management Federal actions not affecting listed the site. This unit is essential to the species or critical habitat, and actions plan for the Semitropic Ecological conservation of the species because it is Reserve. on State, tribal, local, or private lands currently occupied and contains the that are not federally funded or Unit 7: Lemoore Wetland Reserve Unit PCEs identified for the shrew. It is the authorized, do not require section 7 The Lemoore Wetland Reserve Unit is northernmost occurrence of the shrew consultation. located east of the Lemoore Naval Air and, therefore, would be considered As a result of section 7 consultation, Station and is 4 mi (6 km) west of the essential to protecting the outermost we document compliance with the City of Lemoore in Kings County. The portions of its known range. requirements of section 7(a)(2) through unit is bounded along the southern Effects of Critical Habitat Designation our issuance of: border by State Route 198, and on the (1) A concurrence letter for Federal north and west sides by a bare water- Section 7 Consultation actions that may affect, but are not conveyance canal. It is 97 ac (39 ha) in Section 7(a)(2) of the Act requires likely to adversely affect, listed species size. The Unit is managed by the Federal agencies, including the Service, or critical habitat; or Natural Resources Conservation Service to ensure that any action they fund, (2) A biological opinion for Federal for waterfowl enhancement. authorize, or carry out is not likely to actions that may affect, or are likely to We consider that the unit was jeopardize the continued existence of adversely affect, listed species or critical occupied at the time of listing and that any endangered species or threatened habitat.

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When we issue a biological opinion Vista Lake shrew. As discussed above, could include, but are not limited to, concluding that a project is likely to the role of critical habitat is to support activities associated with the cleaning jeopardize the continued existence of a life-history needs of the species and up of Superfund sites, erosion control listed species and/or destroy or provide for the conservation of the activities, and flood control activities. adversely modify critical habitat, we species. These activities could eliminate or may provide reasonable and prudent Section 4(b)(8) of the Act requires us reduce upland or aquatic habitat for alternatives to the project, if any are to briefly evaluate and describe, in any Buena Vista Lake shrews. identifiable, that would avoid the proposed or final regulation that (6) Actions that would affect waters of likelihood of jeopardy and/or designates critical habitat, activities the United States by the Army Corps destruction or adverse modification of involving a Federal action that may under section 404 of the Clean Water critical habitat. We define ‘‘reasonable destroy or adversely modify such Act. Such activities could include, but and prudent alternatives’’ (at 50 CFR habitat, or that may be affected by such are not limited to, placement of fill into 402.02) as alternative actions identified designation. wetlands. These activities could during consultation that: Activities that may affect critical eliminate or reduce the habitat (1) Can be implemented in a manner habitat, when carried out, funded, or necessary for the reproduction, feeding, consistent with the intended purpose of authorized by a Federal agency, should or growth of Buena Vista Lake shrews. the action, result in consultation for the Buena (2) Can be implemented consistent Vista Lake shrew. These activities Exemptions with the scope of the Federal agency’s include, but are not limited to: Application of Section 4(a)(3) of the Act legal authority and jurisdiction, (1) Actions that would affect riparian (3) Are economically and or wetland areas by any Federal agency. The Sikes Act Improvement Act of technologically feasible, and Such activities could include, but are 1997 (Sikes Act) (16 U.S.C. 670a) (4) Would, in the Director’s opinion, not limited to, flood control or changes required each military installation that avoid the likelihood of jeopardizing the in water banking activities. These includes land and water suitable for the continued existence of the listed species activities could eliminate or reduce the conservation and management of and/or avoid the likelihood of habitat necessary for the reproduction, natural resources to complete an destroying or adversely modifying sheltering, or growth of Buena Vista integrated natural resources critical habitat. Lake shrews. management plan (INRMP) by Reasonable and prudent alternatives (2) Actions that would affect the November 17, 2001. An INRMP can vary from slight project regulation of water flows by any Federal integrates implementation of the modifications to extensive redesign or agency. Such activities could include, military mission of the installation with relocation of the project. Costs but are not limited to, damming, stewardship of the natural resources associated with implementing a diversion, and channelization. These found on the base. Each INRMP reasonable and prudent alternative are activities could eliminate or reduce the includes: similarly variable. habitat necessary for the reproduction, (1) An assessment of the ecological Regulations at 50 CFR 402.16 require sheltering, or growth of Buena Vista needs on the installation, including the Federal agencies to reinitiate Lake shrews. need to provide for the conservation of consultation on previously reviewed (3) Actions that would involve listed species; actions in instances where we have regulations funded or permitted by the (2) A statement of goals and priorities; listed a new species or subsequently Federal Highway Administration (We (3) A detailed description of designated critical habitat that may be note that the Federal Highway management actions to be implemented affected and the Federal agency has Administration does not fund the to provide for these ecological needs; retained discretionary involvement or routine operations and maintenance of and control over the action (or the agency’s the State highway system). Such (4) A monitoring and adaptive discretionary involvement or control is activities could include, but are not management plan. authorized by law). Consequently, limited to, new road construction and Among other things, each INRMP Federal agencies sometimes may need to right-of-way designation. These must, to the extent appropriate and request reinitiation of consultation with activities could eliminate or reduce applicable, provide for fish and wildlife us on actions for which formal riparian or wetland habitat along river management; fish and wildlife habitat consultation has been completed, if crossings necessary for reproduction, enhancement or modification; wetland those actions with discretionary sheltering, or growth of Buena Vista protection, enhancement, and involvement or control may affect Lake shrews. restoration where necessary to support subsequently listed species or (4) Actions that would involve fish and wildlife; and enforcement of designated critical habitat. licensing of construction of applicable natural resource laws. communication sites by the Federal The National Defense Authorization Application of the ‘‘Adverse Communications Commission. Such Act for Fiscal Year 2004 (Pub. L. 108– Modification’’ Standard activities could include, but are not 136) amended the Act to limit areas The key factor related to the adverse limited to, the installation of new radio eligible for designation as critical modification determination is whether, equipment and facilities. These habitat. Specifically, section 4(a)(3)(B)(i) with implementation of the proposed activities could eliminate or reduce the of the Act (16 U.S.C. 1533(a)(3)(B)(i)) Federal action, the affected critical habitat necessary for the reproduction, now provides: ‘‘The Secretary shall not habitat would continue to serve its sheltering, foraging, or growth of Buena designate as critical habitat any lands or intended conservation role for the Vista Lake shrews. other geographic areas owned or species. Activities that may destroy or (5) Actions that would involve controlled by the Department of adversely modify critical habitat are funding of activities by the U.S. Defense, or designated for its use, that those that alter the physical or Environmental Protection Agency, are subject to an integrated natural biological features to an extent that Department of Energy, Federal resources management plan prepared appreciably reduces the conservation Emergency Management Agency, or any under section 101 of the Sikes Act (16 value of critical habitat for the Buena other Federal agency. Such activities U.S.C. 670a), if the Secretary determines

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in writing that such plan provides a conservation than a critical habitat habitat designation. The Kern Fan Water benefit to the species for which critical designation would provide. Recharge Unit is owned by the City of habitat is proposed for designation.’’ In the case of the Buena Vista Lake Bakersfield and is managed as a There are no Department of Defense shrew, the benefits of critical habitat groundwater recharge zone. The unit is lands within the revised proposed include public awareness of the shrew’s adjacent to, but is not included in the critical habitat designation and as a presence and the importance of habitat Kern Water Bank Habitat Conservation result, we are not exempting any lands protection, and in cases where a Federal Plan and Natural Community under section 4(a)(3)(B) of the Act. nexus exists, increased habitat Conservation Plan permit area. The City protection for the shrew due to the of Bakersfield has managed the unit Exclusions protection from adverse modification or under a Service-approved management Application of Section 4(b)(2) of the Act destruction of critical habitat. Since the plan that was designed to benefit the shrew was first listed, we have Section 4(b)(2) of the Act states that shrew. The Service is currently working consulted on projects on privately the Secretary shall designate and make with the City to enhance the owned land that involved waterways, management plan to increase revisions to critical habitat on the basis oil and gas development and monitoring and funding assurances for of the best available scientific data after exploration, and operations and the shrew. We are continuing to taking into consideration the economic maintenance of electricity transmission coordinate with the City, and will impact, national security impact, and lines. examine conservation actions for the any other relevant impact of specifying When we evaluate the existence of a shrew, including current management any particular area as critical habitat. conservation plan when considering the planning documents, in our The Secretary may exclude an area from benefits of exclusion, we consider a consideration of the Kern Fan Water critical habitat if he determines that the variety of factors, including but not Recharge Unit for exclusion from the benefits of such exclusion outweigh the limited to, whether the plan is finalized; final designation of critical habitat for benefits of specifying such area as part how it provides for the conservation of the shrew, under section 4(b)(2) of the of the critical habitat, unless he the essential physical or biological Act. We specifically solicit comments determines, based on the best scientific features; whether there is a reasonable on the benefits of inclusion or benefits data available, that the failure to expectation that the conservation of exclusion of this area as critical designate such area as critical habitat management strategies and actions habitat. will result in the extinction of the contained in a management plan will be species. In making that determination, implemented into the future; whether Exclusions Based on Economic Impacts the statute on its face, as well as the the conservation strategies in the plan Under section 4(b)(2) of the Act, we legislative history, are clear that the are likely to be effective; and whether consider the economic impacts of Secretary has broad discretion regarding the plan contains a monitoring program specifying any particular area as critical which factor(s) to use and how much or adaptive management to ensure that habitat. In order to consider economic weight to give to any factor. the conservation measures are effective impacts, we are preparing an analysis of In considering whether to exclude a and can be adapted in the future in the economic impacts of the revised particular area from the designation, we response to new information. proposed critical habitat designation identify the benefits of including the After identifying the benefits of and related factors. area in the designation, identify the inclusion and the benefits of exclusion, On April 28, 2011, we released a draft benefits of excluding the area from the we carefully weigh the two sides to economic analysis (DEA) (Industrial designation, and evaluate whether the evaluate whether the benefits of Economics Incorporated (IEc) 2011) benefits of exclusion outweigh the exclusion outweigh those of inclusion. analyzing the impacts of designating benefits of inclusion. If the analysis If our analysis indicates that the benefits critical habitat, as proposed in the indicates that the benefits of exclusion of exclusion outweigh the benefits of October 21, 2009, proposed rule (74 FR outweigh the benefits of inclusion, the inclusion, we then determine whether 53999). In the DEA, the analysts Secretary may exercise his discretion to exclusion would result in extinction. If concluded that incremental impacts exclude the area only if such exclusion exclusion of an area from critical habitat resulting from the critical habitat would not result in the extinction of the will result in extinction, we will not designation for the previously proposed species. exclude it from the designation. units are limited to additional When identifying the benefits of Based on the information provided by administrative costs of section 7 inclusion for an area, we consider the entities seeking exclusion, as well as consultation, and noted two primary additional regulatory benefits that area any additional public comments sources of uncertainty associated with would receive from the protection from received, we will evaluate whether the incremental effects analysis: (1) The adverse modification or destruction as a certain lands in the revised proposed actual rate of future consultation is result of actions with a Federal nexus; critical habitat are appropriate for unknown, and (2) future land use on the educational benefits of mapping exclusion from the final designation private lands is uncertain. The analysis essential habitat for recovery of the pursuant to section 4(b)(2) of the Act. If did not identify any future projects on listed species; and any benefits that may the analysis indicates that the benefits private lands beyond those covered by result from a designation due to State or of excluding lands from the final existing baseline projections. Section 7 Federal laws that may apply to critical designation outweigh the benefits of consultation on the Buena Vista Lake habitat. designating those lands as critical shrew has not occurred on private lands When identifying the benefits of habitat, then the Secretary may exercise that are not covered by conservation exclusion, we consider, among other his discretion to exclude the lands from plans (Units 2 and 5). As a result, the things, whether exclusion of a specific the final designation. analysis did not forecast incremental area is likely to result in conservation; We have not proposed to exclude any impacts due to such measures. the continuation, strengthening, or areas from critical habitat, but we are For the five units, the DEA estimated encouragement of partnerships; or considering whether to exclude the total potential incremental economic implementation of a management plan Kern Fan Water Recharge Unit (Unit 3) impacts in areas proposed as revised that provides equal to or more (2,687 ac (1,088 ha)), from final critical critical habitat over the next 20 years

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(2011 to 2030) to be approximately designation under section 4(b)(2) of the would defer our determination of $133,000 ($11,700 annualized) in Act and our implementing regulations at compliance with several statutes and present value terms applying a 7 percent 50 CFR 424.19. executive orders until the information discount rate (IEc 2011, p. 4–2). Exclusions Based on National Security concerning potential economic impacts Administrative costs associated with Impacts of the designation and potential effects section 7 consultations on a variety of on landowners and stakeholders became activities (including pipeline Under section 4(b)(2) of the Act, we available in the DEA. In the April 28, consider whether there are lands owned construction and removal, delivery of 2011, document making available the or managed by the Department of water supplies under the Central Valley DEA (76 FR 23781) we made use of the Project, pesticide applications for Defense (DOD) where a national security DEA data to make these determinations. invasive species, and restoration impact might exist. In preparing this We affirmed the information in our activities) in proposed critical habitat revised proposal, we have determined Units 2, 3, and 4 were expected to total that the lands within the revised proposed rule concerning Executive approximately $53,900 over the next 20 proposed designation of critical habitat Order (E.O.) 12866 (Regulatory Planning years and made up the largest portion of for the Buena Vista Lake shrew are not and Review), E.O. 12630 (Takings), E.O. post-designation incremental impacts, owned or managed by the Department of 13132 (Federalism), E.O. 12988 (Civil accounting for approximately 39 percent Defense, and, therefore, we anticipate Justice Reform), the Unfunded Mandates of the forecast incremental impacts (IEc no impact on national security. Reform Act (2 U.S.C. 1501 et seq.), the 2011, pp. 4–11—4–12). Impacts were Consequently, the Secretary does not Paperwork Reduction Act of 1995 (44 associated with section 7 consultations propose to exercise his discretion to U.S.C. 3501 et seq.), the National on Pacific Gas and Electric (PG&E) exclude any areas from the final Environmental Policy Act (42 U.S.C. operations and maintenance activities, designation based on impacts on 4321 et seq.), and the President’s internal consultations at the Kern national security. memorandum of April 29, 1994, National Wildlife Refuge, section 7 Peer Review ‘‘Government-to-Government Relations consultations with the U.S. Army Corps with Native American Tribal of Engineers due to Clean Water Act (33 In accordance with our joint policy on Governments’’ (59 FR 22951). However, U.S.C. 1251 et seq.) permitting, and the peer review published in the Federal based on the DEA’s data, we amended incremental impact of consultations and Register on July 1, 1994 (59 FR 34270), our required determinations concerning we will seek the expert opinions of at management plan review for the City of the Regulatory Flexibility Act (5 U.S.C. least three appropriate and independent Bakersfield’s Kern Fan Recharge Area. 601 et seq.) and E.O. 13211 (Energy The incremental costs were broken specialists regarding this proposed rule. Supply, Distribution, and Use). A down by location of expected The purpose of peer review is to ensure incremental costs within the five that our critical habitat designation is revised economic analysis will be proposed critical habitat units, as based on scientifically sound data, completed to consider economic follows: Unit 3, Kern Fan ($84,000 assumptions, and analyses. We have impacts due to the revisions to proposed (present-value impacts)), Unit 1, Kern invited these peer reviewers to comment critical habitat that are included in this National Wildlife Refuge ($20,800), Unit during this public comment period on document. 2, Goose Lake Unit ($16,500), Unit 4, our specific assumptions and Regulatory Planning and Review— Coles Levee Unit ($6,340), and Unit 5, conclusions in this proposed Executive Orders 12866 and 13563 Kern Lake Unit (no identified costs). designation of critical habitat. The consultations forecast for proposed We will consider all comments and Executive Order (E.O.) 12866 provides critical habitat Units 2 and 5 were information received during this that the Office of Information and limited to those associated with comment period on this revised Regulatory Affairs (OIRA) will review occasional permitted pipeline, proposed rule during our preparation of all significant rules. The OIRA has restoration, or water projects. We are a final determination. Accordingly, the determined that this rule is not currently in the process of analyzing the final decision may differ from this significant. E.O. 13563 reaffirms the additional areas we are currently revised proposal. principles of E.O. 12866 while calling proposing as critical habitat for for improvements in the nation’s potential economic impacts and we will Public Hearings issue a revised draft economic analysis Section 4(b)(5) of the Act provides for regulatory system to promote once our review has been completed. As one or more public hearings on this predictability, to reduce uncertainty, a result of the revisions, the potential proposal, if requested. Requests must be and to use the best, most innovative, impacts identified above may change. received within 45 days after the date of and least burdensome tools for We will announce the availability of publication of this proposed rule in the achieving regulatory ends. The the revised draft economic analysis as Federal Register. Such requests must be executive order directs agencies to soon as it is completed, at which time sent to the address shown in the FOR consider regulatory approaches that we will seek public review and FURTHER INFORMATION CONTACT section. reduce burdens and maintain flexibility comment. At that time, copies of the We will schedule public hearings on and freedom of choice for the public draft economic analysis will be this proposal, if any are requested, and where these approaches are relevant, available for downloading from the announce the dates, times, and places of feasible, and consistent with regulatory Internet at http://www.regulations.gov, those hearings, as well as how to obtain objectives. E.O. 13563 emphasizes or by contacting the Sacramento Fish reasonable accommodations, in the further that regulations must be based and Wildlife Office directly (see FOR Federal Register and local newspapers on the best available science and that FURTHER INFORMATION CONTACT section). at least 15 days before the hearing. the rulemaking process must allow for During the development of a final public participation and an open designation, we will consider economic Required Determinations—Amended exchange of ideas. We have developed impacts, public comments, and other In our proposed rule published in the this rule in a manner consistent with new information, and areas may be Federal Register on October 21, 2009 excluded from the final critical habitat (74 FR 53999), we indicated that we these requirements.

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Regulatory Flexibility Act (5 U.S.C. 601 may certify. Likewise, if the per-entity under section 4(b)(2) of the Act and et seq.) economic impact is likely to be Executive Order 12866. Under the Regulatory Flexibility Act significant, but the number of affected In conclusion, we believe that, based (RFA; 5 U.S.C. 601 et seq.) as amended entities is not substantial, the Service on our interpretation of directly by the Small Business Regulatory may also certify. regulated entities under the RFA and Under the RFA, as amended, and relevant case law, this designation of Enforcement Fairness Act of 1996 following recent court decisions, critical habitat will only directly (SBREFA; 5 U.S.C. 801 et seq.), Federal agencies are only required to regulate Federal agencies which are not whenever an agency is required to evaluate the potential incremental by definition small business entities. publish a notice of rulemaking for any impacts of rulemaking on those entities And as such, we certify that, if proposed or final rule, it must prepare directly regulated by the rulemaking promulgated, this designation of critical and make available for public comment itself, and not the potential impacts to habitat would not have a significant a regulatory flexibility analysis that indirectly affected entities. The economic impact on a substantial describes the effects of the rule on small regulatory mechanism through which number of small business entities. entities (small businesses, small critical habitat protections are realized Therefore, an initial regulatory organizations, and small government is section 7 of the Act, which requires flexibility analysis is not required. jurisdictions). However, no regulatory Federal agencies, in consultation with However, though not necessarily flexibility analysis is required if the the Service, to ensure that any action required by the RFA, in our revision to head of the agency certifies the rule will authorized, funded, or carried by the the draft economic analysis for this not have a significant economic impact Agency is not likely to adversely modify current proposal, we will consider and on a substantial number of small critical habitat. Therefore, only Federal evaluate the potential effects to third entities. The SBREFA amended the RFA action agencies are directly subject to parties that may be involved with to require Federal agencies to provide a the specific regulatory requirement consultations with Federal action certification statement of the factual (avoiding destruction and adverse agencies related to this action. Upon basis for certifying that the rule will not modification) imposed by critical completion of the revised draft have a significant economic impact on habitat designation. Under these economic analysis, we will announce a substantial number of small entities. circumstances, it is our position that availability of the draft economic According to the Small Business only Federal action agencies will be analysis of the proposed designation in Administration, small entities include directly regulated by this designation. the Federal Register and reopen the small organizations such as Therefore, because Federal agencies are public comment period for the revised independent nonprofit organizations; not small entities, the Service may proposed designation. small governmental jurisdictions, certify that the proposed critical habitat Energy Supply, Distribution, or Use— including school boards and city and rule will not have a significant town governments that serve fewer than economic impact on a substantial Executive Order 13211 50,000 residents; and small businesses number of small entities. Executive Order 13211 (Actions (13 CFR 121.201). Small businesses We acknowledge, however, that in Concerning Regulations That include such businesses as some cases, third-party proponents of Significantly Affect Energy Supply, manufacturing and mining concerns the action subject to permitting or Distribution, or Use) requires agencies with fewer than 500 employees, funding may participate in a section 7 to prepare Statements of Energy Effects wholesale trade entities with fewer than consultation, and thus may be indirectly when undertaking certain actions. We 100 employees, retail and service affected. We believe it is good policy to do not expect the designation of this businesses with less than $5 million in assess these impacts if we have revised proposed critical habitat to annual sales, general and heavy sufficient data before us to complete the significantly affect energy supplies, construction businesses with less than necessary analysis, whether or not this distribution, or use. Appendix A.2, of $27.5 million in annual business, analysis is strictly required by the RFA. the 2011 DEA, provides the finding that special trade contractors doing less than While this regulation does not directly although PG&E and Southern California $11.5 million in annual business, and regulate these entities, in our revision to Gas Company operate facilities within forestry and logging operations with the draft economic analysis, we will the proposed critical habitat fewer than 500 employees and annual conduct a brief evaluation of the designation, no incremental changes in business less than $7 million. To potential number of third parties facility operation are forecast and, determine whether small entities may participating in consultations on an therefore, the 2011 DEA included the be affected, we will consider the types annual basis in order to ensure a more determination that no changes in energy of activities that might trigger regulatory complete examination of the use, production, or distribution were impacts under this designation as well incremental effects of this proposed rule anticipated (IEc 2011, p. A–6). as types of project modifications that in the context of the RFA. In the April Therefore, this action is not a significant may result. In general, the term 25, 2011, Federal Register document (76 energy action, and no Statement of ‘‘significant economic impact’’ is meant FR 23781) announcing the availability Energy Effects is required. However, we to apply to a typical small business of the DEA, we discussed the will further evaluate this issue as we firm’s business operations. incremental impacts that were conduct our revised economic analysis, Importantly, the incremental impacts identified in the DEA, and we include and review and revise this assessment of a rule must be both significant and this information above under the as warranted. substantial to prevent certification of the section, ‘‘Exclusions Based on Economic rule under the RFA and to require the Impacts.’’ The previous economic Unfunded Mandates Reform Act preparation of an initial regulatory analysis did not review the additional (2 U.S.C. 1501 et seq.) flexibility analysis. If a substantial areas proposed in this rule; therefore, In accordance with the Unfunded number of small entities are affected by we defer our evaluation of the potential Mandates Reform Act (2 U.S.C. 1501 et the proposed critical habitat indirect effects to non-Federal parties seq.), we make the following findings: designation, but the per-entity economic until completion of the revised draft (1) This rule will not produce a impact is not significant, the Service economic analysis we will prepare Federal mandate. In general, a Federal

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mandate is a provision in legislation, not apply, nor would critical habitat California. The designation of critical statute, or regulation that would impose shift the costs of the large entitlement habitat in areas currently occupied by an enforceable duty upon State, local, or programs listed above onto State the Buena Vista Lake shrew is expected tribal governments, or the private sector, governments. to impose nominal additional regulatory and includes both ‘‘Federal (2) We do not believe that this rule restrictions to those currently in place intergovernmental mandates’’ and will significantly or uniquely affect and, therefore, is expected to have little ‘‘Federal private sector mandates.’’ small governments because none of the incremental impact on State and local These terms are defined in 2 U.S.C. third-party entities identified in the governments and their activities. The 658(5)–(7). ‘‘Federal intergovernmental 2011 DEA met the SBA’s definition of designation may have some benefit to mandate’’ includes a regulation that a small government or business. Our these governments because the areas ‘‘would impose an enforceable duty finding is based in part on the previous that contain the physical or biological upon State, local, or tribal governments’’ economic analysis conducted for the features essential to the conservation of with two exceptions. It excludes ‘‘a previous designation of critical habitat the species are more clearly defined, condition of Federal assistance.’’ It also and extrapolated to this designation, and the elements of the features excludes ‘‘a duty arising from and partly on where the additional areas necessary to the conservation of the participation in a voluntary Federal proposed for critical habitat within this species are specifically identified. This program,’’ unless the regulation ‘‘relates designation are located. Therefore, a information does not alter where and to a then-existing Federal program Small Government Agency Plan is not what federally sponsored activities may under which $500,000,000 or more is required. However, we will further occur. However, it may assist local provided annually to State, local, and evaluate this issue as we conduct our governments in long-range planning tribal governments under entitlement revised economic analysis, and review (rather than having them wait for case- authority,’’ if the provision would and revise this assessment if by-case section 7 consultations to ‘‘increase the stringency of conditions of appropriate. occur). Where State and local governments assistance’’ or ‘‘place caps upon, or Takings—Executive Order 12630 otherwise decrease, the Federal require approval or authorization from a In accordance with Executive Order Government’s responsibility to provide Federal agency for actions that may 12630 (‘‘Government Actions and funding,’’ and the State, local, or tribal affect critical habitat, consultation Interference with Constitutionally governments ‘‘lack authority’’ to adjust under section 7(a)(2) would be required. Protected Private Property Rights’’), this accordingly. At the time of enactment, While non-Federal entities that receive rule is not anticipated to have these entitlement programs were: Federal funding, assistance, or permits, significant takings implications. As Medicaid; Aid to Families with or that otherwise require approval or discussed above, the designation of authorization from a Federal agency for Dependent Children work programs; critical habitat affects only Federal Child Nutrition; Food Stamps; Social an action, may be indirectly impacted actions. Critical habitat designation does by the designation of critical habitat, the Services Block Grants; Vocational not affect landowner actions that do not Rehabilitation State Grants; Foster Care, legally binding duty to avoid require Federal funding or permits, nor destruction or adverse modification of Adoption Assistance, and Independent does it preclude development of habitat Living; Family Support Welfare critical habitat rests squarely on the conservation programs or issuance of Federal agency. Services; and Child Support incidental take permits to permit actions Enforcement. ‘‘Federal private sector that do require Federal funding or Civil Justice Reform—Executive Order mandate’’ includes a regulation that permits to go forward. Due to current 12988 ‘‘would impose an enforceable duty public knowledge of the species In accordance with Executive Order upon the private sector, except (i) a protections and the prohibition against 12988 (Civil Justice Reform), the Office condition of Federal assistance or (ii) a take of the species both within and of the Solicitor has determined that the duty arising from participation in a outside of the proposed areas we do not rule does not unduly burden the judicial voluntary Federal program.’’ anticipate that property values will be system and that it meets the The designation of critical habitat significantly affected by the critical requirements of sections 3(a) and 3(b)(2) does not impose a legally binding duty habitat designation. However, we have of the Order. We have proposed on non-Federal Government entities or not yet completed the economic designating critical habitat in private parties. Under the Act, the only analysis for this revised proposed rule. accordance with the provisions of the regulatory effect is that Federal agencies Once the revised economic analysis is Act. This proposed rule uses standard must ensure that their actions do not available, we will review and revise this property descriptions and identifies the destroy or adversely modify critical preliminary assessment as warranted, elements of physical or biological habitat under section 7. While non- and prepare a Takings Implication features essential to the conservation of Federal entities that receive Federal Assessment. the Buena Vista Lake shrew within the funding, assistance, or permits, or that designated areas to assist the public in Federalism—Executive Order 13132 otherwise require approval or understanding the habitat needs of the authorization from a Federal agency for In accordance with Executive Order species. an action, may be indirectly impacted 13132 (Federalism), this proposed rule by the designation of critical habitat, the does not have significant Federalism Paperwork Reduction Act of 1995 legally binding duty to avoid effects. A Federalism summary impact (44 U.S.C. 3501 et seq.) destruction or adverse modification of statement is not required. In keeping This rule does not contain any new critical habitat rests squarely on the with Department of the Interior and collections of information that require Federal agency. Furthermore, to the Department of Commerce policy, we approval by OMB under the Paperwork extent that non-Federal entities are requested information from, and Reduction Act of 1995 (44 U.S.C. 3501 indirectly impacted because they coordinated development of, the et seq.). This rule will not impose receive Federal assistance or participate October 21, 2009, proposed critical recordkeeping or reporting requirements in a voluntary Federal aid program, the habitat designation (74 FR 53999) with on State or local governments, Unfunded Mandates Reform Act would appropriate State resource agencies in individuals, businesses, or

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organizations. An agency may not recognized Federal Tribes on a § 17.95 Critical habitat—fish and wildlife. conduct or sponsor, and a person is not government-to-government basis. In (a) Mammals. required to respond to, a collection of accordance with Secretarial Order 3206 * * * * * information unless it displays a of June 5, 1997 (American Indian Tribal currently valid OMB control number. Rights, Federal-Tribal Trust Buena Vista Lake Shrew (Sorex ornatus Responsibilities, and the Endangered relictus) National Environmental Policy Act Species Act), we readily acknowledge (1) Critical habitat units are depicted (42 U.S.C. 4321 et seq.) our responsibilities to work directly for Kern and Kings Counties, California, It is our position that, outside the with tribes in developing programs for on the maps below. jurisdiction of the U.S. Court of Appeals healthy ecosystems, to acknowledge that (2) Within these areas, the primary for the Tenth Circuit, we do not need to tribal lands are not subject to the same constituent elements of the physical or prepare environmental analyses controls as Federal public lands, to biological features essential to the pursuant to the National Environmental remain sensitive to Indian culture, and conservation of the Buena Vista Lake Policy Act (NEPA; 42 U.S.C. 4321 et to make information available to tribes. shrew consist of permanent and seq.) in connection with designating We determined that there are no tribal intermittent riparian or wetland critical habitat under the Act. We lands that were occupied by the Buena communities that contain: published a notice outlining our reasons Vista Lake shrew at the time of listing (i) A complex vegetative structure for this determination in the Federal that contain the features essential for with a thick cover of leaf litter or dense Register on October 25, 1983 (48 FR conservation of the species, and no mats of low-lying vegetation. Associated 49244). This position was upheld by the tribal lands unoccupied by the Buena plant species can include, but are not U.S. Court of Appeals for the Ninth Vista Lake shrew that are essential for limited to, Fremont cottonwoods, Circuit (Douglas County v. Babbitt, 48 the conservation of the species. willows, glasswort, wild-rye grass, and F.3d 1495 (9th Cir. 1995), cert. denied Therefore, we are not proposing to rush grass. Although moist soil in areas 516 U.S. 1042 (1996)). designate critical habitat for the Buena with an overstory of willows or Clarity of the Rule Vista Lake shrew on tribal lands. cottonwoods appears to be favored, such overstory may not be essential. We are required by Executive Orders References Cited (ii) Suitable moisture supplied by a 12866 and 12988 and by the A complete list of references cited in shallow water table, irrigation, or Presidential Memorandum of June 1, this rulemaking is available on the proximity to permanent or 1998, to write all rules in plain Internet at http://www.regulations.gov semipermanent water. language. This means that each rule we and upon request from the Sacramento (iii) A consistent and diverse supply publish must: Fish and Wildlife Office (see FOR of prey. Although the specific prey (1) Be logically organized; species utilized by the Buena Vista Lake (2) Use the active voice to address FURTHER INFORMATION CONTACT). shrew have not been identified, ornate readers directly; Authors shrews are known to eat a variety of (3) Use clear language rather than terrestrial and aquatic invertebrates, jargon; The primary authors of this package (4) Be divided into short sections and are the staff members of the Sacramento including amphipods, slugs, and sentences; and Fish and Wildlife Office. insects. (3) Critical habitat does not include (5) Use lists and tables wherever List of Subjects in 50 CFR Part 17 possible. manmade structures (such as buildings, If you feel that we have not met these Endangered and threatened species, aqueducts, runways, roads, and other requirements, send us comments by one Exports, Imports, Reporting and paved areas) and the land on which they of the methods listed in the ADDRESSES recordkeeping requirements, are located existing within the legal section. To better help us revise the Transportation. boundaries on the effective date of this rule. rule, your comments should be as Proposed Regulation Promulgation specific as possible. For example, you (4) Critical habitat map units. Data should tell us the numbers of the Accordingly, we propose to further layers defining map units were created sections or paragraphs that are unclearly amend part 17, subchapter B of chapter on a base of USGS digital ortho-photo written, which sections or sentences are I, title 50 of the Code of Federal quarter-quadrangles, and critical habitat too long, the sections where you feel Regulations, as proposed to be revised at units were then mapped using Universal lists or tables would be useful, etc. 74 FR 53999 (Ocotber 21, 2009) and set Transverse Mercator (UTM) Zone 11 forth below: coordinates. Government-to-Government (5) The coordinates for these maps are Relationship With Tribes PART 17—ENDANGERED AND available on the Internet at http:// In accordance with the President’s THREATENED WILDLIFE AND PLANTS www.regulations.gov at Docket No. memorandum of April 29, 1994 1. The authority citation for part 17 FWS–R8–ES–2009–0062, at http:// (Government-to-Government Relations continues to read as follows: www.fws.gov/sacramento/, or at the with Native American Tribal Sacramento Fish and Wildlife Office, Governments; 59 FR 22951), Executive Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 2800 Cottage Way, Sacramento, CA Order 13175 (Consultation and 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 95825. 625, 100 Stat. 3500; unless otherwise noted. Coordination With Indian Tribal (6) The index map of critical habitat Governments), and the Department of 2. Amend § 17.95(a) by revising the units for the Buena Vista Lake shrew the Interior’s manual at 512 DM 2, we entry for ‘‘Buena Vista Lake Shrew (Sorex ornatus relictus) in Kern and readily acknowledge our responsibility (Sorex ornatus relictus)’’ to read as Kings Counties, California follows: to communicate meaningfully with follows: BILLING CODE 4310–55–P

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(7) Subunit 1A: Kern National California. Map of Subunits 1A, 1B, and Wildlife Refuge, Kern County, 1C follows:

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(8) Subunit 1B: Kern National (9) Subunit 1C: Kern National (10) Unit 2: Goose Lake, Kern County, Wildlife Refuge, Kern County, Wildlife Refuge, Kern County, California. Map follows: California. Map of Subunits 1A, 1B, and California. Map of Subunits 1A, 1B, and 1C is provided at paragraph (7) of this 1C is provided at paragraph (7) of this entry. entry.

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(11) Unit 3: Kern Fan Recharge Unit, Kern County, California. Map follows:

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(12) Unit 4: Kern Lake, Kern County, California. Map follows:

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(13) Unit 5: Coles Levee, Kern County, California. Map follows:

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(14) Unit 6: Lemoore Unit, Kern County, California. Map follows:

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(15) Unit 7: Semitropic Unit, Kern County, California. Map follows:

* * * * * Dated: June 26, 2012. Michael J. Bean, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–16479 Filed 7–9–12; 8:45 am] BILLING CODE 4310–55–C

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