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October 31, 2006 (Volume 71, Number 210)] [Proposed Rules] [Page 63979-64002]
Critical Habitat Designation for the Cape Sable Seaside Sparrow
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise critical habitat for the endangered Cape Sable seaside sparrow (Ammodramus maritimus mirabilis) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 156,350 acres (ac) (63,273 hectares (ha)) fall within the boundaries of the proposed critical habitat designation. The proposed critical habitat is located in Miami-Dade and Monroe counties, Florida.

DATES: We will accept comments from all interested parties until January 2, 2007. We must receive requests for public hearings, in writing, at the address shown in the ADDRESSES section by December 15,
2006.

ADDRESSES: If you wish to comment, you may submit comments and materials concerning this proposal by any one of several methods:
1. You may submit written comments and information by mail or hand- delivery to Tylan Dean, U.S. Fish and Wildlife Service, South Florida Ecological Services Office, 1339 20th Street, Vero Beach, Florida
32960.
2. You may send comments by electronic mail (e-mail) to Tylan_Dean@fws.gov. Please see the Public Comments Solicited section below

for file format and other information about electronic filing.
3. You may fax your comments to 772-562-4288.
4. You may submit comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting

comments. Comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the South Florida Ecological Services Office, 1339 20th Street, Vero Beach, Florida (telephone 772-562-3909).

FOR FURTHER INFORMATION CONTACT: Tylan Dean, South Florida Ecological Services Office (see ADDRESSES); telephone 772-562-3909; facsimile 772-
562-4288. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339, 7 days a week and 24 hours a day.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq.), including whether the benefit of designation will outweigh any threats to the species due to designation;
(2) Specific information on the amount and distribution of Cape Sable seaside sparrow habitat, including areas occupied by Cape Sable seaside sparrows at the time of listing and containing features essential to the conservation of the species, and areas not occupied at the time of listing that are essential to the conservation of the species;
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities; and
(5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments. If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES). Please submit electronic comments to tylan_dean@fws.gov in ASCII file format and avoid the use of special characters or any form of encryption. Please also include ``Attn: Cape Sable seaside sparrow'' in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your message, contact us directly by calling our South Florida Ecological Services Office at 772-562-3909. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their names and home addresses, etc., but if you wish us to consider withholding this information, you must state this prominently at the beginning of your comments. In addition, you must present rationale for withholding this information. This rationale must demonstrate that disclosure would constitute a clearly unwarranted invasion of privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, documentable circumstances, this information will be released. We will always make submissions from organizations or businesses, and from individuals identifying themselves as representatives of or officials of organizations or businesses, available for public inspection in their entirety.

Role of Critical Habitat in Actual Practice of Administering and Implementing the Act

Attention to and protection of habitat is paramount to successful conservation actions. The role that designation of critical habitat plays in protecting habitat of listed species, however, is often misunderstood. As discussed in more detail below in the discussion of exclusions under the Act's section 4(b)(2), there are significant limitations on the regulatory effect of designation under section
7(a)(2) of the Act. In brief, (1) designation provides additional protection to habitat only where there is a Federal nexus; (2) the protection is relevant only when, in the absence of designation, destruction or adverse modification of the critical habitat would take place (in other words, other statutory or regulatory protections, policies, or other factors relevant to agency decision-making would not prevent the destruction or adverse modification); and (3) designation of critical habitat triggers the prohibition of destruction or adverse modification of that habitat, but it does not require specific actions to restore or improve habitat. Currently, only 475 species, or 36 percent of the 1,311 listed species in the United States under the jurisdiction of the Service, have designated critical habitat. We address the habitat needs of all 1,311 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative, nonregulatory efforts with private landowners. The Service believes that it is these measures that may make the difference between extinction and survival for many species. In considering exclusions of areas proposed for designation, we evaluated the benefits of designation in light of Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004). In that case, the Ninth Circuit invalidated the Service's regulation defining ``destruction or adverse modification of critical habitat.'' In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This proposed critical habitat designation does not use the invalidated regulation in our consideration of the benefits of including areas in this final designation. The Service will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to finalizing to ensure that an adequate analysis has been conducted that is informed by the Director's guidance. On the other hand, to the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost. In addition, the mere administrative process of designation of critical habitat is expensive, time-consuming, and controversial. The current statutory framework of critical habitat, combined with past judicial interpretations of the statute, make critical habitat the subject of excessive litigation. As a result, critical habitat designations are driven by litigation and courts rather than biology, and made at a time and under a time frame that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful. In light of these circumstances, the Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.