Wednesday, August 6, 2003 Part II Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon; Final Rule VerDate jul<14>2003 21:54 Aug 05, 2003 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\06AUR2.SGM 06AUR2 46684 Federal Register / Vol. 68, No. 151 / Wednesday, August 6, 2003 / Rules and Regulations DEPARTMENT OF THE INTERIOR SUPPLEMENTARY INFORMATION: court orders and court-approved settlement agreements, compliance with Preamble Fish and Wildlife Service which now consumes nearly the entire Designation of Critical Habitat Provides listing program budget. This leaves the 50 CFR Part 17 Little Additional Protection to Species Service with little ability to prioritize its activities to direct scarce listing RIN 1018–AI26 In 30 years of implementing the ESA, resources to the listing program actions the Service has found that the with the most biologically urgent Endangered and Threatened Wildlife designation of statutory critical habitat and Plants; Final Designation of species conservation needs. provides little additional protection to The consequence of the critical Critical Habitat for Four Vernal Pool most listed species, while consuming Crustaceans and Eleven Vernal Pool habitat litigation activity is that limited significant amounts of conservation listing funds are used to defend active Plants in California and Southern resources. The Service’s present system Oregon lawsuits and to comply with the for designating critical habitat is driven growing number of adverse court orders. AGENCY: Fish and Wildlife Service, by litigation rather than biology, limits As a result, the Service’s own proposals Interior. our ability to fully evaluate the science to undertake conservation actions based ACTION: Final rule. involved, consumes enormous agency on biological priorities are significantly resources, and imposes huge social and delayed. SUMMARY: We, the Fish and Wildlife economic costs. The Service believes The accelerated schedules of court Service (Service), designate critical that additional agency discretion would ordered designations have left the habitat pursuant to the Endangered allow our focus to return to those Service with almost no ability to Species Act of 1973, as amended (Act), actions that provide the greatest benefit provide for additional public for 4 vernal pool crustaceans and 11 to the species most in need of participation beyond those minimally vernal pool plants. A total of protection. required by the APA, the Act, and the approximately 1,184,513 ac (417,989 ha) Role of Critical Habitat in Actual Service’s implementing regulations, or of land falls within the boundaries of to take additional time for review of designated critical habitat. This estimate Practice of Administering and Implementing the Act comments and information to ensure the reflects the exclusion of National rule has addressed all the pertinent Wildlife Refuge lands and National fish While attention to and protection of issues before making decisions on hatchery lands (33,097 ac (13,238 ha)), habitat is paramount to successful listing and critical habitat proposals, and State lands within ecological conservation actions, we have due to the risks associated with reserves and wildlife management areas consistently found that, in most noncompliance with judicially imposed. (20,933 ac (8,373 ha)) from the final circumstances, the designation of This in turn fosters a second round of designation. However, the area estimate critical habitat is of little additional litigation in which those who will suffer does not reflect the exclusion of lands value for most listed species, yet it adverse impacts from these decisions within the following California consumes large amounts of conservation challenge them. The cycle of litigation counties: Butte, Madera, Merced, resources. Sidle (1987) stated, ‘‘Because appears endless, is very expensive, and Sacramento, and Solano from the final the ESA can protect species with and in the final analysis provides little designation pursuant to section 4(b)(2) without critical habitat designation, additional protection to listed species. of the Act. critical habitat designation may be The costs resulting from the This critical habitat designation redundant to the other consultation designation include legal costs, the cost requires us to consult under section 7 of requirements of section 7.’’ of preparation and publication of the the Act with regard to actions Currently, only 306 species or 25 designation, the analysis of the authorized, funded, or carried out by a percent of the 1,211 listed species in the economic effects and the cost of Federal agency. Section 4 of the Act U.S. under the jurisdiction of the requesting and responding to public requires us to consider economic and Service have designated critical habitat. comment, and in some cases the costs other relevant impacts when specifying We address the habitat needs of all of compliance with NEPA, all are part any particular area as critical habitat. 1,211 listed species through of the cost of critical habitat We solicited data and comments from conservation mechanisms such as designation. These costs result in the public on all aspects of the proposed listing, section 7 consultations, the minimal benefits to the species that is rule, including data on economic and Section 4 recovery planning process, the not already afforded by the protections other impacts of the designation. Section 9 protective prohibitions of of the Act enumerated earlier, and they DATES: This final rule is effective unauthorized take, Section 6 funding to directly reduce the funds available for September 5, 2003. the States, and the Section 10 incidental direct and tangible conservation actions. ADDRESSES: Comments and materials take permit process. The Service received, as well as supporting believes that it is these measures that Background documentation used in the preparation may make the difference between On the basis of the final economic of this final rule, will be available for extinction and survival for many analysis and other relevant impacts, as public inspection, by appointment, species. outlined under section 4(b)(2) of the during normal business hours at the Act, certain exclusions have been made, Sacramento Fish and Wildlife Office, Procedural and Resource Difficulties in as detailed below. Because of the U.S. Fish and Wildlife Service, 2800 Designating Critical Habitat settlement agreement that requires us to Cottage, Room W–2605, Sacramento, CA We have been inundated with deliver this rule to the Federal Register 95825. lawsuits regarding critical habitat by July 15, 2003, there was insufficient FOR FURTHER INFORMATION CONTACT: designation, and we face a growing time to revise the rule to fully reflect Arnold Roessler or Jan Knight, at the number of lawsuits challenging critical these exclusions. A technical Sacramento Fish and Wildlife Office habitat determinations once they are amendment to the rule to take these address above (telephone 916/414–6600; made. These lawsuits have subjected the areas out of the maps and legal facsimile 916/414–6710). Service to an ever-increasing series of descriptions, as well to change all the VerDate jul<14>2003 21:54 Aug 05, 2003 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\06AUR2.SGM 06AUR2 Federal Register / Vol. 68, No. 151 / Wednesday, August 6, 2003 / Rules and Regulations 46685 appropriate references in the text of this topographic irregularities that form square yard (1 meter) to 2.5 ac (1 ha) or preamble will be completed as soon as vernal pool basins. Temperatures during more. Some larger vernal wetlands, such funding allows. the fall and winter wet season are mild, as the 90 ac (36 ha) Olcott Lake in the The following counties are excluded so plants and animals can grow, mature, Jepson Prairie Preserve in Solano from this rule under Section 4(b)(2): and reproduce. County, are also referred to as playa Butte, Madera, Merced, Solano, and A second major factor in the pools or lakes. Playa pools with high Sacramento. We find that the benefits of development of vernal pools is soil. alkalinity are termed alkali sinks. These excluding these areas from critical Vernal pools form where there is a soil larger wetlands contain many of the habitat outweigh the benefits of layer below or at the surface that is same animals and plants of smaller including them. See further discussion impermeable or nearly impermeable to vernal pools, including many rare, under the Section 4(B)(2) analysis water (Smith and Verrill 1998). threatened, and endangered species. subheading below. Precipitation and surface runoff become Since appropriate combinations of Vernal pool crustaceans and plants trapped or ‘‘perched’’ above this layer. climate, soil, and topography often live in vernal pools (shallow In California, the restrictive soil layers occur over continuous areas rather than depressions that hold water seasonally), underlying vernal pools are of four main in isolated spots, vernal pools in swales (shallow drainages that carry types: hardpans, claypans, volcanic California, particularly in the Central water seasonally), and ephemeral (short- flows, and non-volcanic rock. Hardpans Valley, tend to occur in clusters called lived) freshwater habitats. None are are formed by leaching, redeposition, ‘‘complexes.’’ A landscape that supports known to occur in riverine waters, and cementing of silica minerals from a vernal pool complex is typically a marine waters, or other permanent high in the soil profile to a lower (‘‘B’’) grassland, with areas of obstructed bodies of water. The vernal pool horizon (Hobson and Dahlgren 1998; drainage that form the pools. Vernal habitats of the 4 vernal pool crustaceans Smith and Verrill 1998). Claypans are pools can also be found in a variety of and 11 plants addressed in this final formed by another redeposition other habitats, including woodland, rule have a discontinuous distribution process—fine clay particles are desert, chaparral, or pine forest.