The U.S. Fish and Wildlife Service (Service), designated critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus) (referred to here as the shrew) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 84 acres (ac) (34 hectares (ha)) occur within the boundaries of the critical habitat designation. The critical habitat is located in the Central Valley floor of Kern County, California.

The U.S. Fish and Wildlife Service (Service), designated critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus) (referred to here as the shrew) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 84 acres (ac) (34 hectares (ha)) occur within the boundaries of the critical habitat designation. The critical habitat is located in the Central Valley floor of Kern County, California.

RULES and REGULATIONS

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT66

Endangered and Threatened Wildlife and Plants; Final Rule To Designate Critical
Habitat for the Buena Vista Lake Shrew (Sorex ornatus relictus)

Monday, January 24, 2005

AGENCY: Fish and Wildlife Service, Interior.

*3438 ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus) (referred to here as the shrew) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 84 acres (ac) (34 hectares (ha)) occur within the boundaries of the critical habitat designation. The critical habitat is located in the Central Valley floor of Kern County, California.

DATES: This final rule is effective February 23, 2005.

ADDRESSES: Comments and materials received, as well as supporting documentation used in the preparation of this final rule, will be available for public inspection, by appointment, during normal business hours at the Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, W-2605, Sacramento, California 95825 (telephone 916-414-6600).

FOR FURTHER INFORMATION CONTACT: Shannon Holbrook or Arnold Roessler, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605 Sacramento, California, (telephone 916-414-6600; facsimile 916-414-6712).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection to the Species

In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. 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.

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

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, "Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7." Currently, only 468 species or 37 percent of the 1,256 listed species in the United States under our jurisdiction have designated critical habitat. We address the habitat needs of all 1,256 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, and the Section 10 incidental take permit process. We believe that it is these measures that may make the difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. We are currently reviewing the decision to determine what effect it may have on the outcome of consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result of this consequence, listing petition responses, the Service's own proposals to list critically imperiled species and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially imposed deadlines. This situation in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.
The costs associated with the critical habitat designation process include legal costs, the costs of preparation and publication of the designation, the analysis of the economic effects and the costs of requesting and responding to public comments, and, in some cases, the costs of compliance with National Environmental Policy Act. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and these associated costs directly reduce the scarce funds available for direct and tangible conservation actions.

Background

For background information, please see the proposed designation of critical habitat for the Buena Vista Lake shrew published on August 19, 2004 (69 FR 51417). That information is incorporated by reference into this final rule.

Previous Federal Actions

A final rule listing the shrew as endangered was published in the Federal Register on March 6, 2002 (67 FR 10101). Please refer to the final rule listing the shrew for information on previous Federal actions prior to March 6, 2002. On January 12, 2004, the United States District Court for the Eastern District of California issued a Memorandum Opinion and Order (Kern County Farm Bureau et al. v. Anne *3439 Badgley, Regional Director of the United States Fish and Wildlife Service, Region 1 et al., CV F 02-5376 AWIDLB). The order required the Service to publish a proposed critical habitat determination (also known as a proposed rule) for the shrew no later than July 12, 2004, and a final determination no later than January 12, 2005. On July 8, 2004, the court extended the deadline for submitting the proposed rule to the Federal Register to August 13, 2004.
On August 19, 2004 (69 FR 51417), we published a proposed critical habitat designation for the Buena Vista Lake shrew. Publication of this proposed rule opened a 60-day public comment period, which closed on October 18, 2004. On September 16, 2004, we announced via local news media and publications that a public hearing was to be held on September 30, 2004, in Bakersfield, California. At the public hearing, approximately 10 members of the public provided or presented information and comments on the proposed critical habitat designation. On November 30, 2004, we published a notice announcing the availability of our draft economic analysis (DEA) of the proposed critical habitat designation (69 FR 69578). The notice opened a 15-day public comment period on the DEA, extended the comment period on the proposed critical habitat designation, and closed on December 15, 2004.

Summary of Comments and Recommendations

We contacted appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposed critical habitat designation for the Buena Vista Lake shrew. In addition, we invited public comment through the publication of a notice in the Bakersfield Californian on September 16, 2004.
In the August 19, 2004, proposed critical habitat designation (69 FR 51417), we requested that all interested parties submit comments on the specifics of the proposal, including information related to the critical habitat designation, unit boundaries, species occurrence information and distribution, land use designations that may affect critical habitat, potential economic effects of the proposed designation, benefits associated with the critical habitat designation, potential exclusions and the associated rationale for the exclusions, and methods used to designate critical habitat. We also contacted all appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment. This was accomplished through letters and news releases mailed to affected elected officials, media outlets, local jurisdictions, interest groups, and other interested individuals. In addition, we invited public comment through the publication of legal notices in newspapers throughout Kern County.
We provided notification of the draft economic analysis (DEA) through postcards, letters, and news releases faxed and/or mailed to affected elected officials, media outlets, local jurisdictions, and interest groups. We published a notice of its availability in the Federal Register and made the DEA and associated material available on our Sacramento Fish and Wildlife Office Internet site on November 30, 2004 (69 FR 69578).
We received a total of 16 comment letters and electronic mail correspondences (e-mails) during the comment periods. We reviewed all comments received for substantive issues and new information regarding the Buena Vista Lake shrew. We grouped similar public comments into six general issue categories relating specifically to the proposed critical habitat determination and/or the DEA. Substantive comments and accompanying information have either been incorporated directly into the final rule or final economic analysis documents, and/or they have been addressed in the following summary.

Peer Review

In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), we solicited review from at least three appropriate and independent specialists/experts regarding the proposed rule. The purpose of such review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses.
We solicited peer review from 5 individuals who have detailed knowledge of and expertise in either mammalian biology in general, or shrew biology specifically, as well as scientific principles and conservation biology. The individuals were asked to review and comment on the specific assumptions and conclusions regarding the proposed designation of critical habitat. Two of the five reviewers submitted comments on the proposed designation.
Peer Comment (1): One peer reviewer felt the proposed critical habitat designation incorporated the most up to date information on the biology of the shrew and the issues of range, distribution, and life history requirements of the shrew. This peer reviewer questioned whether connectivity of habitat fragments had been considered in preparation of the proposed rule. Both reviewers stated that shrews, that were possibly the Buena Vista Lake shrew, have been captured at the Atwell Island Land Retirement Demonstration project site: both reviewers questioned why this area was not included in the proposed critical habitat designation.
Our Response (1): Although we agree that preserving connectivity between known occupied locations is important for the conservation of the Buena Vista Lake shrew, we do not believe that unoccupied and historical locations are essential for the conservation of the species. The Recovery Plan for Upland Species of the San Joaquin Valley (Recovery Plan) determined that the Buena Vista Lake shrew could be conserved by protection of habitat in three or more disjunct occupied conservation areas, excluding unoccupied and/or historical locations. All units that were described in the Recovery Plan were analyzed to determine if the areas exhibited the physical and biological features that are essential to the conservation of the shrew and would require special management. We have determined that the areas or units that we have proposed to designate as critical habitat, based on our analysis of the best available scientific and commercial data, provide for the essential lifecycle needs of the species, and provide the habitat components essential for the conservation of this species (i.e., the primary constituent elements (PCEs) described below in the Primary Constituent Elements section). Therefore, we do not believe that it is necessary for the conservation of the Buena Vista Lake shrew to designate critical habitat in unoccupied areas or areas that do not exhibit the primary constituent elements essential for the conservation of the species.

State and Federal Agency or Tribal Comments

We did not receive any comments regarding the proposed critical habitat designation from any State, Federal or Tribal entity.

Other Public Comments and Responses

We address other substantive comments and accompanying information in the following summary. Any changes and/or reference updates suggested by commenters have been incorporated into this final rule or the final economic analysis, as appropriate.

*3440 Issue 1--Habitat- and Species-Specific Information

Comment (1): Several commenters stated that we have not adequately established that all the areas identified as critical habitat do in fact contain the Primary Constituent Elements (PCEs) essential for the conservation of the species and that the proposed designation fails to narrowly define those areas that have the PCEs. These commenters also stated they wanted excluded from designation those areas that did not contain the PCEs for the shrew. These comments were directed towards roads, pump sites, maintained canals, and other areas devoid of vegetation within the designation. One commenter expressed concern that there was no comprehensive biological study utilizing uniform assumptions of analysis for all five units.
Our Response (1): We used the best scientific and commercial data available to us at the time in determining which areas proposed as critical habitat are essential for the shrew. In our final determination, we used additional information available to us, including detailed aerial imagery and other information provided by commenters to assist us in refining our mapping of essential habitat. After refining our proposal by removing additional nonhabitat and other nonessential areas such as roads, pump sites, maintained canals, and other areas devoid of vegetation, and considering the best available information, we conclude that the areas designated by this final rule, including currently occupied areas, are essential for the conservation of the species. In our development of the proposed designation, we utilized certain specific conservation criteria of protecting a variety of habitats, protecting suitable habitat across the range of the species, and protecting habitats essential for the maintenance and growth of self-sustaining populations in establishing the areas of critical habitat. This strategy was also used in the development of the final designation.
Comment (2): One commenter suggested that there would be an increase in siltation and debris accumulation in channels and that this would increase maintenance burdens of water districts if there was a restriction in channel use due to the critical habitat designation.
Our Response (2): In our final determination, we have additional information available to us, including detailed aerial imagery and other information provided by commenters to assist us in refining our mapping of essential habitat. We have determined that channels, because they lack the PCEs, do not provide habitat for the shrews. Therefore, channel areas have been removed from the critical habitat boundaries. Therefore, no restrictions of use or modifications to channel operations will be imposed due to critical habitat designation.
Comment (3): One commenter stated that the final rule should recognize all cumulative impacts to the shrew occurring in the area.
Our Response (3): In accordance with Section 4(b) of the Endangered Species Act, the regulations state that the Secretary shall determine whether a species is an endangered species or a threatened species because of any of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) disease or predation, (4) the inadequacy of existing regulatory mechanisms, and (5) other natural or manmade factors affecting its continued existence. As a result of this analysis, the Buena Vista Lake shrew was listed as endangered on March 6, 2002 (67 FR 10101). The recognition of "cumulative impacts" or threats is part of the process of listing a species and not part of the designation of critical habitat.
Comment (4): One commenter stated that the final rule should reflect a commitment to monitoring or improved data collection for the threat of selenium contamination.
Our Response (4): Critical habitat identifies those areas which contain the physical and biological features that are essential to the conservation of the species and those areas that may require special management considerations or protections. Critical habitat designation is not intended to be a management plan for a specific area. Any monitoring or special management actions can be developed through consultation or management agreements through partnerships with Federal, State, local or private groups.

Issue 2--Costs and Regulatory Burden

Comment (5): Several commenters stated that the Service needs to clarify the proposed rule to allow the public to understand what activities will be limited at each proposed unit. These commenters expressed concern that critical habitat designation would limit their land use practices. Specifically, several commenters stated concern over West Nile virus and whether mosquito abatement procedures would be allowed in areas and boundaries of those areas designated as critical habitat. Several commenters were concerned over ability of the city to provide adequate drinking water supplies if groundwater recharge practices were restricted. Several commenters were concerned that critical habitat designation will adversely affect farming operations, interrupt water supplies, and cause degradation of surrounding farmland. One commenter states that critical habitat designation has potential to adversely affect water management activities such as irrigation, municipal purposes, and flood management. One commenter asks if critical habitat will affect how the County administers FEMA regulations.
Our Response (5): All Federal agencies are required to evaluate whether projects they authorize, fund, or carry out may adversely affect a federally listed species and/or its designated critical habitat. If projects with a federal nexus are not likely to adversely affect critical habitat, then a consultation with us would not be necessary. For projects that are likely to have only discountable, insignificant, or wholly beneficial effects on critical habitat, we would concur in writing and no further consultation will be necessary. For projects likely to have adverse affects on critical habitat, formal consultation would be required pursuant to Section 7 of the Act.
Only those activities federally funded or authorized that may affect critical habitat would be subject to the regulations pertaining to critical habitat. Since all of the Buena Vista Lake shrew habitat within the designation is occupied by the listed Buena Vista Lake shrew and occurs on privately owned lands, the designation of critical habitat is not likely to result in a significant increase in regulatory requirements above those already in place due to the presence of the listed species.
Buena Vista Lake shrews have been found within areas of proposed critical habitat where these intricate water banking and management operations are in place. We recognize and acknowledge that certain water banking and water management practices likely have no impacts on the Buena Vista Lake shrew and may in fact be beneficial for maintaining them.
While the designation of critical habitat does not constitute a regulation on private lands, the Federal listing of the Buena Vista Lake shrew under the Endangered Species Act may affect private landowners. Private actions which could result in take of Buena Vista Lake shrew (e.g., ground disturbing activities) require an exemption from take following consultation under Section 7 or an *3441 incidental take permit under section 10 of the Act. Because the Buena Vista Lake shrew was listed in 2002, proposed actions on private lands that require Federal authorization or funding that may affect the species already undergo consultation under Section 7 to ensure that their actions are not likely to jeopardize the continued existence of the species. Future consultations involving private lands will also analyze the effect of the proposed action on designated critical habitat.
The Act also requires recovery planning for listed species. Recovery planning for Buena Vista Lake shrew may include recommendations for land acquisition or easements involving private landowners. These efforts would be undertaken with the cooperation of the landowners. We also work with landowners to identify activities and modifications to activities that will not result in take, to develop measures to minimize the potential for take, and to provide authorizations for take through section 7 and 10 of the Act. We encourage landowners to work in partnership with us to develop plans for ensuring that land uses can be carried out in a manner consistent with the conservation of listed species.
Comment (6): One commenter stated there would be economic impacts if water deliveries to Buena Vista Lake Recreation Area were altered. One commenter feels that critical habitat will cause substantial financial burden if changes in structures or abilities to manage for irrigation and floodwater or banking operations are required. One commenter stated that the Critical habitat designation should be limited to those areas that are already reserved for habitat purposes to minimize economic impact. One commenter stated that the Service must quantify economic impacts and consider cumulative impacts of the proposed rule.
Our Response (6): We made a draft economic analysis (DEA) available for public comment for the Buena Vista Lake shrew on November 30, 2004, and accepted comments on the DEA from that date through December 15, 2004 (69 FR 69578). These comments will be considered in the final EA.
We did not propose to designate as critical habitat the Buena Vista Lake Recreation Area. Furthermore, based on our economic analysis, we do not anticipate a substantial financial burden in the area that we are designating. The annualized economic effects of this designation are estimated to be $8,752 to $12,932, based on the economic analysis for Kern Lake only, as all the other units were excluded from designation.
Comment (7): Several commenters stated that there should be allowances for continued operation, maintenance, repair, and replacement of existing facilities.
Our Response (7): Critical habitat designations do not prevent the normal operation, maintenance, repair, or replacement of existing facilities. However, any action that would result in the take of a federally listed species (e.g., ground disturbing activities), would require a Federal permit under section 7 or section 10 of the Act. Consultation on critical habitat is only triggered when there is a Federal nexus (action carried out, funded, or authorized by a Federal agency). Even if there is a Federal nexus, consultation would not be triggered unless the PCEs are present in the action area. Where possible, existing facilities, such as the ones referred to in the comment, have been excluded from critical habitat designation. Due to the mapping scale utilized in the rule, it was not possible to remove all areas that do not exhibit the PCEs for the species. Nonetheless, critical habitat does not include man-made structures and not containing one or more of the PCEs, such as buildings, aqueducts, airports, and roads, and the land on which such structures are located. If these areas do not exhibit the PCEs, and/or there is no Federal nexus, the owners of the facilities would not have regulatory responsibilities due to critical habitat.

Issue 3--Property Rights

Comment (8): Several commenters were concerned that designation of critical habitat would affect flood control and water supply to Bakersfield and surrounding communities. They stated the designation could adversely affect agricultural production and urban water districts if water deliveries are restricted or restrictive management practices are imposed.
Our Response (8): Critical habitat designations do not constitute a burden in terms of Federal laws and regulations on private landowners carrying out privately funded activities. Unless a Federal nexus exists for a project proposed on private property, the critical habitat designation poses no regulatory burden for private landowners and similarly should not interfere with future land use plans. Therefore, we do not believe that this designation will deny ranchers and farmers use of their land. We have also determined that channels such as water delivery canals do not provide habitat for the shrews due to lack of the primary constituent elements, and we have removed them from the critical habitat boundaries. Therefore, we do not anticipate restrictions of use or modifications to water deliveries to be imposed due to critical habitat designation.
While the designation of critical habitat does not typically result in regulation on private lands, the Federal listing of the Buena Vista Lake shrew under the Endangered Species Act may affect private landowners. Actions which could result in take of Buena Vista Lake shrew (e.g., ground disturbing activities) require a Federal permit under section 7 or section 10 of the Act. Because the Buena Vista Lake shrew was listed in 2002, Federal agencies already consult with us on activities in areas currently occupied by the species or, if the species may be affected by an action, to ensure that their action does not jeopardize the continued existence of the species.
Comment (9): One commenter asks if restrictive critical habitat management practices imposed on federal agencies or private property owners seeking federal permits increase mitigation costs, property damage, or raise public safety issues involving the maintenance of flood-carrying capacity for the affected water conveyance facilities.
Our Response (9): Critical habitat identifies those areas which contain the physical and biological features that are essential to the conservation of the species and those areas that may require special management considerations or protections. Critical habitat designation is not intended to be a management plan for a specific area. Any monitoring or special management practices can be developed through Section 7 or Section 10 of the Act. Based on previous consultations, there have been no restrictive management practices required that have resulted in increased mitigation costs, property damage, or have raised public safety issues. Nor do we anticipate, based on the economic analysis, in the future restrictive management practices that will increase mitigation costs, property damage or public safety issues.
Comment (10): Several commenters stated that areas that are subject to a management regime that supports the shrew should be excluded from designation.
Our Response (10): We exclude areas with management regimes from designation if a current plan provides adequate management or protection and meets three criteria: (1) The plan is complete and provides a conservation benefit to the species (i.e., the plan must maintain or provide for an increase in the species' population, or the enhancement or restoration of its habitat *3442 within the area covered by the plan); (2) the plan provides assurances that the conservation management strategies and actions will be implemented (i.e., those responsible for implementing the plan are capable of accomplishing the objectives, have an implementation schedule, and adequate funding for implementing the management plan); and (3) the plan provides assurances that the conservation strategies and measures will be effective (i.e., it identifies biological goals, has provisions for monitoring and reporting progress, and is of a duration sufficient to substantially implement the plan and achieve the plan's goals and objectives). Units containing a management plan or regime that meets the above criteria have been excluded from designation.
Comment (11): Several commenters stated concern over the regular operation, repair, and maintenance of existing oil and gas pipelines and water diversion canals within critical habitat boundaries. Several commenters are concerned that critical habitat designation will affect water district supplies. They stated that significant economic effects will occur if operations of banking projects or delivery canals require modifications.
Our Response (11): Activities carried out, funded, authorized, or permitted by a Federal agency (i.e., Federal nexus) require consultation pursuant to section 7 of the Act if they may affect a federally listed species and/or its designated critical habitat. Our experience with consultations on the Buena Vista Lake shrew is that few oil and gas activities have involved a Federal nexus and have not required a consultation under Section 7 of the Act. Regardless, we have excluded from critical habitat the units with oil and gas pipelines due to their adequate management plans. See Exclusions Under Section 4(b)(2) of the Act. Similarly, there are no water diversion canals within final critical habitat boundaries. The canal that occurs within the unit included in the final designation has been removed from the critical habitat boundary. Therefore, projects within these canals would not require consultation due to critical habitat.
Comment (12): Several commenters stated that designation would result in restrictions or delays to regular operation or maintenance or new construction of water delivery or agricultural or industrial facilities, requiring consultation with the Service.
Our Response (12): All lands designated as critical habitat are within the geographic area occupied by the species, and are likely to be used by the Buena Vista Lake shrew, whether for foraging, breeding, growth of juveniles, genetic exchange, or sheltering. Thus, we consider all critical habitat units to be occupied by the species. Federal agencies already consult with us on activities in areas currently occupied by the species or if the species may be affected by the action to ensure that their actions do not jeopardize the continued existence of the species. Therefore, we believe that the designation of critical habitat is not likely to result in additional regulatory burden above that already in place due to the presence of the listed species.

Issue 4--Mapping Methodology

Comment (13): Several commenters asked that specific areas that they believed do not exhibit the PCEs be excluded from the critical habitat designation.
Our Response (13): Where site-specific documentation was submitted to us providing a rationale as to why an area should not be designated critical habitat, we evaluated that information in accordance with the definition of critical habitat pursuant to section 3 (5)(A) of the Act and the provisions of section 4 (b)(2) of the Act. Following our evaluation of the parcels, we made a determination as to whether modifications to the proposal were warranted. In the preparation of the final rule, we further examined the area proposed and we refined the critical habitat boundaries to exclude, where possible within the limitations of our minimum mapping scale, those areas that did not, or were not likely to, contain the PCEs for the Buena Vista Lake shrew.
Please refer to the Summary of Changes from the Proposed Rule section of this final rule for a more detailed discussion of changes and exclusion from the proposed rule.
Comment (14): One commenter urges the Service to expand critical habitat designation to include all habitats essential to the conservation of the species and in need of special management. The commenter further states that the proposed rule does not ensure recovery of the species. They state that the designation is too small and too isolated to ensure viable, self-sustaining populations. They argued that the rule should include occupied as well as unoccupied potential habitat that could be recolonized and provide potential dispersal habitats. This commenter also stated that the Service should analyze areas described in the Recovery Plan for inclusion in the final rule, as well as areas to provide connectivity. One commenter recommends identifying locations, such as irrigation ditches and other potentially restorable riparian habitats which might provide essential connectivity between existing large blocks of core habitat. This commenter also wants the required agriculture land location at Atwell Island near Alpaugh included as critical habitat.
Our Response (14): Although we agree that preserving connectivity between known occupied locations is important for the conservation of the Buena Vista Lake shrew, we do not believe that unoccupied and historical locations are essential for the conservation of the species. The Recovery Plan for Upland Species of the San Joaquin Valley (Recovery Plan) determined that the Buena Vista Lake shrew could be conserved by protecting habitat in three or more disjunct occupied conservation areas, excluding unoccupied and/or historical locations. All units that were described in the Recovery Plan were analyzed to determine if the areas exhibited the physical and biological features (PCEs) that are essential to the conservation of the shrew and may require special management. The five units that we have proposed to designate as critical habitat provide for the essential life-cycle needs of the species, and provide the habitat components essential for the conservation of this species (i.e., the primary constituent elements (PCEs) described below in the Primary Constituent Elements section). Under the Act, areas without PCEs cannot be designated critical habitat, such as these areas suggested for potentially restorable areas, unless determined to be essential for the conservation of the species. Again, we have determined that the areas or units that we have proposed to designate as critical habitat provide the habitat components essential for the conservation of this species. Therefore, we do not believe that it is necessary to the conservation of the Buena Vista Lake shrew to designate critical habitat in unoccupied areas.

Issue 5--Procedural Concerns

Comment (15): Several commenters stated concerns because the proposed rule was not accompanied by an economic analysis. They claimed it was difficult to comment on the proposed rule without reviewing the information from the economic analysis.
Our Response (15): We made a draft of the economic analysis (DEA) available for public comment for the Buena Vista Lake shrew on November 30, 2004, and accepted comments on the DEA from that date through December 15, 2004 (69 FR 69578). The information presented in the DEA has been reviewed *3443 and its analysis has been included in our decisionmaking process for the final designation.
Comment (16): Several commenters stated that the Service could not designate critical habitat without first complying with NEPA requirements.
Our Response (16): We published a notice in the Federal Register on October 25, 1983 (48 FR 49244) outlining our reasons for our determination not to prepare an environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. It is our position that in the Ninth Circuit, as upheld by the courts (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996), we do not need to prepare environmental analyses as defined by the NEPA.
Comment (17): One commenter argued that the proposed critical habitat designation contains areas that are not occupied by the shrew. The commenter stated that Congress restricts the authority of the Service to designate critical habitat in areas that are occupied.
Our Response (17): All lands designated as critical habitat are within the geographic area and have been documented to be occupied by the species (CNDDB 2004; Maldonado 1992; Williams and Harpster 2001; ESRP 2004), and are likely to be used by the Buena Vista Lake shrew, whether for foraging, breeding, growth of juveniles, genetic exchange, or sheltering. Thus, we consider all critical habitat units to be occupied by the species.
Comment (18): One commenter requested that Unit 2 be excluded from designation because it is currently in negotiations for a Section 7 permit, which the commenter believes would provide the area with a sufficient management plan.
Our Response (18): A current plan provides adequate management or protection if it meets three criteria, outlined above in our Response to Comment 10. A Section 7 consultation with long-term conservation assurances provides for the long-term protection and management of the species and its habitat. At the time we received this comment, the Service was in negotiations for a Section 7 permit. A Biological Opinion with long-term conservation assurances has since been completed and issued for the Gooselake project. The Goose Lake Unit has been excluded from designation based on the conservation measures that will benefit the Buena Vista Lake shrew outlined in the Section 7 consultation and long term easement on the project. See Exclusions Section.
Comment (19): The City of Bakersfield stated that it is operating under current management practices that benefit the shrew and that it is currently developing a management plan to benefit the shrew, and therefore its unit should be excluded from designation.
Our Response (19): The City of Bakersfield's Kern Fan Water Recharge Unit has been excluded from designation based on the conservation measures that will benefit the Buena Vista Lake shrew outlined in the management plan which meets the Service's exclusion criteria. See Exclusions Section.
Comment (20): Several commenters stated that the Coles Levee Unit 4 is covered by a management plan sufficient for the protection of the species and its habitat and should be excluded from designation. The commenters stated that the conservation easement for the Coles Levee Unit, that is held by California Department of Fish and Game, specifically recognizes the shrew in Section 5.3 of the easement as a "Species of Concern Benefited by this Easement."
Our Response (20): We have reviewed and evaluated the conservation easement conditions which meet the Service's exclusion criteria. We have determined that the Coles Levee Unit 4 should be excluded from the designation based on the conservation measures that will benefit the Buena Vista Lake shrew. See Exclusions section.

Issue 6--Economic Analysis

Comment (21): One comment suggested that the analysis should address the costs associated with "allowing the extinction of the subspecies of shrew, including the genetic traits necessary for the survival of the entire species." Furthermore, extinction of the shrew would be a loss of opportunity for students and scientists who study the species, and who also spend money locally.
Our Response (21): The purpose of the DEA is to estimate the economic effects of conservation activities associated with the listing and designation of critical habitat for the shrew, as well as the economic effects of the protective measures taken as a result of the listing. The Service believes that the benefits of critical habitat designation are best expressed in biological terms that can be weighed against the expected cost impacts of the rulemaking. Thus, the DEA does not provide a monetary measure of the economic benefits of preventing extinction.
Comment (22): One comment indicated that the economic analysis of critical habitat designation should measure not only loss of profit (i.e., lost producer surplus) of affected businesses, but loss of revenue as a measure that may better capture the total economic impacts, including "employment dislocation" and "associated ill effects."
Our Response (22): The Service acknowledges that the economic effects identified by the commenter are important, and should be addressed. Both categories of effects (i.e., welfare change in terms of lost producer surplus, and distributional effects in terms of employment dislocation) were addressed in the DEA. However, guidance from OMB, and compliance with Executive Order 12866 specifies that Federal agencies measure changes in economic efficiency as a means of understanding how society will be affected by a regulatory action. This provides a measure of the net impact of conservation measures. Consideration of how certain economic sectors or groups of people are affected in a distributional manner is important and should be considered, but OMB encourages Federal agencies to consider distributional effects separately from efficiency effects. These distinctions are discussed in Sections 1.1.1 and 1.1.2 of the DEA. As such, the DEA presents the quantitative effects of shrew conservation measures as the efficiency effects, and presents the distributional effects of changes in agricultural activities in Section 5.5.
Comment (23): One comment suggested that the water requirement assumption of 3.5 acre-feet per acre is "much too high, and that use of evapotranspiration rates for field crops and grass is not appropriate because it does not account for shading or mulch (as suitable habitat for the Buena Vista Lake shrew)."
Our Response (23): Several sources were consulted to determine appropriate water requirements for use in the DEA. The estimate of 3.5 acre-feet per acre was suggested by managers of the Kern National Wildlife Refuge (KNWR). As noted by those managers and as reported in Section 6.3.5.1 of the DEA, a rate of 3.5 acre-feet per acre provides for optimal management of habitat in KNWR. This level was considered reasonable because all units are in the same geographic zone, and the KNWR water rate reflects optimal management conditions. As noted in Section 2.0 of the DEA, estimates of water requirements for wetland habitat in the San Joaquin Valley range as high as 10 acre-feet per acre.
*3444 Comment (24): One comment noted that the cost of water purchases for maintaining habitat based on $209 per acre-foot is "not accurate," and would instead require the purchase of permanent water rights for "a guaranteed source of water." Furthermore, current costs for water is $2,500 per acre-foot.
Our Response (24): In drafting the DEA, the need for water was investigated for each of the proposed units. This research concluded that supplemental water would be necessary on two units (Unit 1, Kern National Wildlife Refuge; and Unit 2, Goose Lake), but may or may not be warranted on the remaining three units. The DEA assumes that supplemental water may be purchased on an as-needed basis. The $209 per acre-foot estimate is an average spot price for leased water, equivalent to a one-time, one-use acquisition. The purchase of permanent water rights would add more certainty to the attainment of water, and would be a reasonable and conservative assumption. There is little difference between a purchase price of $2,500 per acre-foot and discounted annual purchases of leased water, however. Thus, this comment does not significantly change the quantitative results of the economic analysis.
Comment (25): One comment letter inquired whether all the water applied to shrew habitat would be transpired or evaporated, or whether some would soak into the ground for eventual availability to adjacent water banks or croplands.
Our Response (25): The DEA considered the water diversion requirement (that is, the gross amount of water that would be applied to habitat). It is understood in the DEA that only a portion of that water would be used by plants or evaporated, and that at least some of that water would soak into the ground and would be available for other uses.
Comment (26): Multiple comments stated that the DEA understated the cost to water districts by not considering "worst case" operating and maintenance costs if the Service imposes restrictions on Federal surface water allotments, use of conveyance systems, water banking, and other water district activities and programs.
Our Response (26): A range of possible scenarios was investigated through interviews with area water district managers and representatives exploring the potential restrictions or other measures that could be imposed on water districts or purveyors. The "worst case" scenarios were considered, including the possibility of much higher costs for purchased water, and the possibility of closure of the existing facilities to future uses for water banking or withdrawal. However, further research revealed that these scenarios could not be substantiated through available information and therefore were too speculative to be considered reasonably foreseeable.
Comment (27): A comment submitted on behalf of the City of Bakersfield, Kern County Farm Bureau, Kern County Water Agency, and J.G. Boswell Company suggested that designation of Unit 3 as critical habitat, Kern Fan Water Recharge Area (KFWRA), "places in jeopardy roughly $37.5 million in water resources" of the City of Bakersfield, and "another $25 million in potential replacement costs" for other entities who bank water (Buena Vista Water Storage District, Cal Water Service Company, Kern County Water Agency, and the Olcese Water District). The comment states that the KFWRA is an essential element of the City's water supply that is relied upon for water storage. If banking of water at this project is restricted, the City may be required to seek additional water supplies from the already stressed State Water Project and Central Valley Project, which will result in additional economic and environmental impacts. Further, if banking of water during flood events is restricted, Kern River water could flood adjacent properties resulting in public safety risks. The commenter also suggested that the designation of Unit 3 may alter the diversion of water upstream of the habitat area and that Section 7 consultations "could cause the Army Corps of Engineers to re-schedule its operational releases from Lake Isabella to maintain habitat downstream in Unit 3."
Our Response (27): Importantly, Unit 3 of the proposed designation is excluded from the final designation and impacts to water banking projects including the KFWRA associated with shrew conservation measures are therefore not expected. The following discussion, however, provides some context to the consideration of this project in the DEA. Multiple possible management scenarios for Unit 3 were investigated in the development of the DEA through interviews with area water district managers and representatives exploring the potential restrictions or other measures that could be imposed on water districts or purveyors. This research determined that a change in the management of the water recharge area from its historic operations would not be required if Unit 3 is designated as critical habitat. In the case that water banking quantity or timing were impacted, economic impacts could occur though all information gathered during the development of the DEA did not suggest this would be the case.
Comment (28): One comment noted that, should the banked water from the Kern River and Friant-Kern Canal in Unit 3 be made unavailable to the Pioneer Project, Kern Water Bank, and Berrenda Mesa Project, the "replacement value" at a rate of $209 per acre-foot for a total of 43,337 acre-feet banked annually would amount to $9.1 million per year (or $130 million over 20 years applying a seven percent discount rate). Additionally, the commenter states that the DEA doesn't consider total economic impacts; "secondary impacts" resulting from timing of water supply and economic dislocation may result in an even greater cost. Applying a multiplier of 2.2, the commenter suggests impacts may be as high as $311 million. The commenter further suggests that "conservation of that water may entail fallowing in some other location that is supplying the water," and cites estimates for field crops (e.g., alfalfa) and the loss of revenue that would lead to an economic impact of $21.8 million annually. An additional commenter suggested that the Friant Water Authority could be affected in its ability "to manage flood waters with Kern and Tulare County water districts and growers throughout its Service Area."
Our Response (28): Unit 3 is not included in the final designation for the BLVS and therefore no costs are expected related to the shrew designation in this area for purchase of replacement water. The following discussion, however, provides more information on the water use in the region. The current operation of Unit 3 is as a water recharge area, where excess flows from the Kern River are allowed to percolate to the groundwater aquifer for later extraction. The DEA concludes that a change in the management of the water recharge area from its historic operations would not be required if the area were to be designated as critical habitat and, as such, that there would not be a need to purchase the replacement of 43,337 acre-feet. In the case that operations were significantly affected, and some amount of water lost to these projects, the DEA would understate the economic effects to water users.
The Kern Fan Water Recharge Area also serves as a flood control management area, where flood flows may be deposited and channeled from other areas. The DEA concludes that the area will continue its historic use of flood management. To the extent that *3445 flood management uses were restricted, the DEA would understate the economic effects in Unit 3.
Comment (29): One commenter stated that the Friant-Kern Canal and its district distribution systems could be affected by additional vegetation control or management on canals directing water to the critical habitat units.
Our Response (29): Neither the Friant-Kern Canal or Friant Water Authority and its member districts have facilities within or adjacent to any of the proposed units, and their distribution systems are not likely to be affected with additional vegetation control requirements.
Comment (30): One commenter indicated that the requirement for water to enhance critical habitat units "could cause a redirection of water in the Friant-Kern Canal," and that such a redirection would cause a financial burden to the Friant Water Authority. The commenter further notes that water purchased by the federal government for the critical habitat units "must be delivered to the sites, and the costs of which would be partly provided by the Authority."
Our Response (30): The need for supplemental water in each of the critical habitat units is effected by the assumption that water will be purchased from willing sellers. As such, no redirection or displacement of existing uses would take place; rather, supplemental water may be purchased on an as-needed basis. A $209 per acre-foot estimate is an average spot price for leased water, equivalent to a one-time, one-use acquisition. The purchase price is assumed to include cost of delivery, and thus it would cover the cost of conveyance systems. The economic costs for water purchases are discussed in Section 6.3.5 in the DEA.
Comment (31): One commenter noted that requirement of water to flood habitat may burden the water districts operating the Friant-Kern Canal. During dry years, when the amount of water is limited, additional burden may occur on the Friant Water Authority and its member districts.
Our Response (31): The supplemental water for the critical habitat units is assumed to be purchased on an as-needed basis from willing sellers. In dry years, when water to member districts may be limited, the critical habitat units may also be limited in acquisition of water. In other words, water for the critical habitat units is necessarily secondary (or junior) to the member districts, and may not be available in dry years. As such, that the units need water is not expected to have a supplemental financial burden effect on member districts.
Comment (32): Two comments indicated that the cost to agriculture is understated in that a larger buffer that the 45 feet estimated in the DEA would be necessary between farmed lands and critical habitat. One commenter also suggested that farmers who typically use aerial application of pesticides may have to change to more expensive ground application, and incur the higher costs.
Our Response (32): For the DEA, the Extension Service was consulted regarding the appropriate width of a buffer that is intended to prevent pesticide drift from farmed lands, and that would also allow for maneuverability of farm equipment. This width (45 feet) was used in the analysis.
Aerial application of pesticides is more likely to result in pesticide drift than are ground-based methods. There are six or fewer farms with cultivated land located adjacent to critical habitat. These are farms that are adjacent to Unit 2 (Kern Fan Recharge), Unit 3 (Goose Lake), and Unit 5 (Kern Lake). To the extent that any or all of these farms currently use aerial pesticide applications and switch to ground applications then the annual cost to those farms may be understated assuming costs of ground application is more expensive. It is not clear, however, how and where these farms employ pesticides, and it was not determined in the development of the DEA that aerial application would be restricted.
Comment (33): One comment indicated that the cost to agriculture is overstated, in that the value of the fruit produced in buffers should be subtracted from the cost of the trees.
Our Response (33): The DEA assumed that the pomegranate tree buffers planted on agricultural lands would not be developed for commercial production purposes, but to create "hedgerow thickets" designed to limit pesticide drift. As such, the plantings would be dense and managed for brush and foliage rather than fruit production, the yield of which would be less than a comparable orchard. Harvesting of fruit would be made difficult by the thicket. In conclusion, any revenue from fruit sales would be minimal.
Comment (34): One comment indicated that in Unit 5 (Kern Lake), "soil and groundwater conditions will not allow tree production" in the proposed buffer strip.
Our Response (34): The buffers would be installed in currently cultivated farmland. To the extent that the suggested buffer planting of a pomegranate hedgerow will not survive because of the soil type, an alternative brushy or hedgerow plant could be identified as suitable for the soils. The cost of installing the buffer is not expected to vary more than a nominal amount from that estimated in the DEA in the case that a different hedgerow is required.
Comment (35): One comment noted that the DEA statement that "there is no cultivated farmland within the boundaries of the proposed designation" is not accurate. The commenter noted that approximately 47 acres in four fields within Unit 2, Goose Lake, have been cultivated in the past, and have been and are eligible for annual loan deficiency (Farm Program) payments.
Our Response (35): To the extent that the land continues to be enrolled in the Farm Program, and the owners choose not to cultivate the land for crop production in the future in order to avoid an incidental take of shrew, then the effect of the critical habitat designation would be the difference between net revenue (after expenses) of crop production and the farm program deficiency payment. This amount will vary depending upon crop and deficiency payment amount. In 2004, according to the commenter, the fields received loan deficiency payments, indicating that they may not have been cultivated and have not been used to produce an alternate crop. If this status were to continue in the future, there would be no effect on the owner from the critical habitat designation.
Comment (36): One commenter states that the DEA "fails to address the impacts to upstream agricultural water users if their water allotments are reduced or eliminated."
Our Response (36): The DEA considered the water needs of the critical habitat units, and acknowledges that supplemental water, whether required or optional, would necessitate a purchase or lease of water from willing sellers. Section 6.3.5 provides an analysis of the water requirements and associated costs for each of the units. The DEA also contemplated the possibility of closure of the existing facilities or effects on water users upstream of the units and determined these scenarios were considered unlikely; therefore, associated impacts were too speculative to be considered reasonably foreseeable.
Comment (37): One comment letter requested information as to whether critical habitat designation in Unit 5 (Kern Lake) would affect: (1) Mosquito abatement; (2) diversions of water from New Rim Ditch; (3) timing and *3446 quantities of flows through the Kern Delta Water District facilities; (4) farming activities adjacent to Unit 5; (5) operation of the tile drain system; (6) maintenance of canals and roadways; (7) eligibility of the site for development into a mitigation bank; (8) eligibility for inclusion of Unit 5 into the Metropolitan Bakersfield HCP; and (9) activities of the owner to voluntarily supply water to the site.
Our Response (37): In the development of the DEA, our investigation regarding whether changes would be recommended to modify existing mosquito abatement activities revealed that producers who follow pesticide labels instructions for application will not be impacted by shrew conservation activities. The Kern Delta Water District uses the New Rim Ditch to transport water to its service members. The New Rim Ditch lies adjacent to, but outside of, critical habitat in Unit 5. It was determined that requirements for changing diversions, quantities, and timing of flows through existing facilities was not reasonably foreseeable in this area. The DEA considered farming activities in terms of the planting of buffer strips on adjacent lands, including those adjacent to Unit 5 (see Section 5.4 of the DEA). Implementation of these buffer zones is estimated to cost approximately $5,187 annually. The DEA also considered whether designation of critical habitat would affect operation, or possible removal, of the tile drain system. Discussions with the land owner indicate that operations on the tile drain system include periodic maintenance and repair of the pumps transporting tailwater at the end of the drains; these activities are not likely to affect the shrew. Routine maintenance of canals and roadways, including grading and adding to gravel base, have been conducted in the past and are not anticipated to be restricted due to shrew conservation activities. Further investigation did not indicate that designation of Unit 5 would limit its eligibility for development into a mitigation bank, or inclusion into the Metropolitan Bakersfield HCP. The potential for restrictions on additional water supply, or changes in the timing of water applications to the site, were also considered. Such activities are not likely to be restricted or limited as the shrew thrives on moist edges to wetted areas, and could reasonably adapt under these conditions.
Comment (38): One comment letter expressed concern about the future status of the tile drain system in Unit 5 (Kern Lake), and the economic damage in terms of land values and crop losses "in excess of $30 million" that would result if the Service required it to be dismantled.
Our Response (38): In developing the DEA, the possibility of impacts to tile drain system project, including its removal, were examined. No evidence was uncovered to give reason to assume that the existing system or tile drain in place would require any alteration, and therefore it was determined that there would not be any reasonably foreseeable loss of land value or crop production associated with modification to this project.
Comment (39): One commenter stated that the Kern Delta Water District operates and maintains the New Rim Ditch in Unit 5, and expressed concern that the district would be impacted if their ability to operate the ditch is affected by the designation.
Our Response (39): The New Rim Ditch, levee, and adjacent roadway are on the boundary, but outside of, the Unit 5. Previous operations and use of the New Rim Ditch have been conducive for the survival of the shrew, and the seepage has been beneficial for its habitat. As long as current operations and use do not change in the future, there would be no restrictions placed upon it that would result in economic effects.
Comment (40): One commenter indicated that the Buena Vista Water Storage District (BVWSD), which owns the Outlet Canal, located within Unit 4, Coles Levee, could be affected if they are unable to line the canal as they plan.
Our Response (40): Proposed Unit 4 is not included in the final designation for the BLVS and therefore no further costs are expected related to the shrew associated with this potential project. The following discussion, however, provides more information on the Outlet Canal lining project. A representative of the BVWSD was contacted regarding operational plans for the Outlet Canal. The BVWSD has considered lining the Outlet Canal since the late 1970s, but never completed necessary feasibility studies. More recently, the District has begun to consider it again, based on the installation of new equipment to better measure the seepage from the canal. Among the study alternatives is the efficacy of lining the entire canal (bottom and sides) versus lining the bottom and only parts of the sides, leaving the top parts of the levees unlined in order to protect the waterway habitat. Lining of the canal could provide the BVWSD with a reduction in seepage loss and ability to use or sell the conserved water. The benefit to the BVWSD of the additional water would be offset by the cost of lining. Future improvements or changes to the Outlet Canal are uncertain, as the economic feasibility of improvements to the BVWSD has not yet been determined.
Comment (41): One comment asserts that the study understated the full range of effects on private individuals or entities due to Section 7 consultations that induce the preparation of biological reports. In particular, costs of preparation and ongoing operating costs for the Kern County Valley Floor HCP are understated. The Kern County Planning Department estimates that these costs are $200,000 for completion of the HCP document and more than $70,000 annually in subsequent years for implementation.
Our Response (41): The costs to private entities was determined along with other costs associated with Section 7 consultations and development of HCPs. Table 16 in the DEA provides a summary of the costs to non-Federal entities, both as a result of the listing and anticipated in the future.
With respect to the Kern County Valley Floor HCP, the commenter was contacted for cost estimates in the course of preparing the DEA, and those costs were subsequently included in the revised economic analysis. The total cost to date of $450,000 was assumed to be divided equally among the 28 species included in the HCP. The prospective annual cost, which is $125 as shown in Table 16, was based on the $70,000 forecasted by the commenter as required to complete the HCP. The annual costs may appear understated because they are assumed to be shared equally among the 28 listed species considered in the HCP.
Comment (42): One comment suggested that designation of Unit 3, Kern Fan Water Recharge, would necessitate the installation of "an irrigation system such as sprinklers * * * to water disconnected areas and establish sufficient vegetative cover." As such, the DEA should include the annual costs for a sprinkler system.
Our Response (42): Proposed Unit 3 is currently operated as a water recharge area, where excess flows from the Kern River are allowed to percolate to the groundwater aquifer for later extraction. The DEA did not anticipate significant enough changes to operations in this Unit to necessitate the installation of infrastructure for irrigation. However, Unit 3 is not included in the final designation for the BLVS and therefore no costs are expected related to the shrew for an irrigation system in this area.
Comment (43): One comment noted that the DEA does not consider "the costs of replacing the consumptive use *3447 of water needed to moisten shrew habitat" within Unit 3, the Kern Fan Water Recharge, and that the replacement of 9,163 acre-feet of groundwater in that unit would cost $1.9 million annually.
Our Response (43): Unit 3 is not included in the final designation for the BLVS and therefore no costs are expected related to the shrew for purchase of replacement water. The following discussion, however, provides more information on the consumptive water use in the region. The Kern Fan Water Recharge area operates as a water bank with an intentional use of allowing water to percolate to the groundwater aquifer for eventual reuse. In allowing percolation of supplemental water, and simultaneously providing habitat moisture to the benefit of the shrew, some evaporative loss may occur that would not be recoverable. Assuming a 15 percent rate of evaporative loss, approximately 1,375 acre-feet of the supplemental water would not be available to groundwater users. It should be noted that it is not known whether supplemental water will be required in the Kern Fan Recharge Area. If water is required, it is assumed that water would be purchased from willing sellers, and hence would not displace other existing uses. Nevertheless, should the water be required, the upper bound on the opportunity cost of the 1,375 acre-feet of water lost, at $209 per acre-foot, would be $287,375 annually.
Comment (44): One comment letter stated that the Semitropic Water District owns and operates a canal in Unit 2 for water delivery and transport of flood waters, and concern was expressed that the district would be constrained in its operations or use of the canal.
Our Response (44): This canal is not included in the final designation for the shrew as Unit 2 has been excluded from designation and therefore no economic impacts are anticipated to this project. Current operations of the canal in Unit 2 for water delivery and transport of flood waters have permitted the survival of the shrew, however, and investigation regarding whether the canal's operation or use would be restricted in the future under a critical habitat designation concluded that restrictions are reasonably foreseeable.
Comment (45): One comment letter submitted on behalf of the Gooselake Holding Company (GHC) clarified the ownership status and plans for surface water regulation and groundwater recharge within Unit 2, Goose Lake, consistent with a Biological Opinion signed by the Service on November 15, 2004. GHC owns most of the Goose Lake Area, not the Semitropic Water Storage District as stated in the DEA.
Our Response (45): The Biological Opinion for this project was signed after the publication date of the DEA. The Service appreciates these clarifications to the description in the DEA and they are incorporated into the revised analysis. It is of note, however, that Unit 2 of the proposed critical habitat, which contains this project, has been excluded from the final designation of critical habitat.
Comment (46): One comment inquired whether water purchased for maintenance of shrew habitat would enhance waterfowl habitat in Unit 2 (Goose Lake), and if so, could a monetary value be placed on the enhancement and deducted from the cost of water.
Our Response (46): It is possible that waterfowl habitat would be enhanced by purchase of water for shrew habitat. However, estimating the monetary value or economic benefits ("negative costs") of habitat enhancement is extremely difficult, and requires that a strict set of conditions be met in order to follow the guidance of the Office of Management and Budget and develop useable results. While improvements to habitat to other species may occur, the Service believes that the benefits of critical habitat designation are best expressed in biological terms that can be weighed against the expected cost impacts of the rulemaking. Thus, this DEA does not provide a monetary measure of the economic benefits of improving habitat for other species.

Summary of Changes From the Proposed Rule

In preparing our final designation of critical habitat for the Buena Vista Lake shrew, we reviewed comments received on the proposed designation of critical habitat. In addition to minor clarifications in the text, we made numerous changes to our proposed designation, as follows:
(1) Under section 4(b)(2) of the Act, we excluded four properties with adequate management plans that provide for conservation of the Buena Vista Lake shrew and its habitat. For more information, refer to Exclusions Under 4(b)(2) of the Act section below.
(2) We refined our mapping boundaries, using the best information available to us, to include only occupied areas which we have determined to have the primary constituent elements and are essential to the shrew. We removed canals, open water areas, and other nonessential areas from the proposed critical habitat designation.
(3) Collectively, we excluded a total of 4,566 ac (1,848 ha) of federally and privately-owned lands from this final critical habitat designation.
 
          Table 1.--Proposed and Final Critical Habitat Area           
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             Unit                     Proposed              Final      
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1. Kern Wildlife Refuge Unit .. 387 ac (157 ha) ...... 0 ac (0 ha).    
2. Goose Lake Unit ............ 1,277 ac (517 ha) .... 0 ac (0 ha).    
3. Kern Fan Recharge Unit ..... 2,682 ac (1,085 ha) .. 0 ac (0 ha).    
4. Coles Levee Unit ........... 214 ac (87 ha) ....... 0 ac (0 ha).    
5. Kern Lake Preserve Unit .... 90 ac (36 ha) ........ 84 ac (34 ha).  
Total ......................... 4,649 ac (1,882 ha) .. 84 ac (34 ha).  
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Critical Habitat

Section 3(5)(A) of the Act defines critical habitat as--(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the *3448 species. "Conservation" means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.
The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. It does not allow government or public access to private lands. Under section 7 of the Act, Federal agencies must consult with us on activities they undertake, fund, or permit that may affect critical habitat and lead to its destruction or adverse modification. However, the Act prohibits unauthorized take of listed species and requires consultation for activities that may affect them, including habitat alterations, regardless of whether critical habitat has been designated. We have found that the designation of critical habitat provides little additional protection to most listed species.
To be included in a critical habitat designation, habitat must be either a specific area within the geographic area occupied by the species on which are found those physical or biological features essential to the conservation of the species (primary constituent elements, as defined at 50 CFR 424.12(b)) and which may require special management considerations or protections, or be specific areas outside of the geographic area occupied by the species which are determined to be essential to the conservation of the species. Section 3(5)(C) of the Act states that not all areas that can be occupied by a species should be designated as critical habitat unless the Secretary determines that all such areas are essential to the conservation of the species. Our regulations (50 CFR 424.12(e)) also state that, "The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species."
Regulations at 50 CFR 424.02(j) define special management considerations or protection to mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of listed species. When we designate critical habitat, we may not have the information necessary to identify all areas that are essential for the conservation of the species. Nevertheless, we are required to designate those areas we consider to be essential, using the best information available to us. Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best available scientific and commercial data demonstrate that those areas are essential for the conservation needs of the species.
Section 4(b)(2) of the Act requires that we take into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.
Our Policy on Information Standards under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by States and counties or other entities that develop HCPs, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.
Section 4 of the Act requires that we designate critical habitat on the basis of what we know at the time of listing. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by section 7(a)(2) and section 9 of the Act, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Methods

Our methods for identifying the Buena Vista Lake shrew critical habitat included in this final designation are identical to the methods we used in our proposal of critical habitat for the Buena Vista Lake shrew, published on August 19, 2004 (69 FR 51417).
As required by section 4(b)(2) of the Act and regulations at 50 CFR 424.12, we used the best scientific and commercial data available to determine areas that contain the physical and biological features that are essential for the conservation of the shrew. This included data and information contained in, but not limited to, the proposed and final rules listing the shrew (65 FR 35033, June 1, 2000, and 67 FR 10101, March 6, 2002), the Recovery Plan for Upland Species of the San Joaquin Valley, California (Service 1998), the proposed rule designating critical habitat (69 FR 51417, August 19, 2004), research and survey observations published in peer-reviewed articles (Grinnell 1932, 1933; Hall 1981; Williams and Kilburn 1984; Williams 1986), habitat and wetland mapping and other data collected and reports submitted by biologists holding section 10(a)(1)(A) recovery permits, biological assessments provided to the Service through section 7 consultations, reports and documents that are on file in the Service's field office (Center for Conservation Biology 1990; Maldonado et al. 1998; ESRP 1999a; ESRP 2004), personal discussions with experts inside and outside of the Service with extensive knowledge of the shrew and habitat in the area, and information received during the two open comment periods. We also conducted site visits and visual habitat evaluation in areas known to have shrews, and in areas within the historical ranges that had potential to contain shrew habitat.
The critical habitat units were delineated by creating rough areas for each unit by screen-digitizing polygons (map units) using ArcView (Environmental Systems Research *3449 Institute, Inc.), a computer Geographic Information System (GIS) program. The polygons were created by overlaying current and historic species location points (CNDDB 2004), and mapped wetland habitats (California Department of Water Resources 1998) or other wetland location information, onto SPOT imagery (satellite aerial photography) (CNES/SPOT Image Corporation 1993-2000) and Digital Ortho-rectified Quarter Quadrangles (DOQQs) (USGS 1993-1998) for areas containing the shrew. We utilized GIS data derived from a variety of Federal, State, and local agencies, and from private organizations and individuals. To identify where essential habitat for the shrew occurs, we evaluated the GIS habitat mapping and species occurrence information from the CNDDB (2004). We presumed occurrences identified in CNDDB to be extant unless there was affirmative documentation that an occurrence had been extirpated. We also relied on unpublished species occurrence data contained within our files, including section 10(a)(1)(A) reports and biological assessments.
These polygons of identified habitat were further evaluated. Several factors were used to delineate the proposed critical habitat units from these land areas. We reviewed any information in the Recovery Plan for Upland Species of the San Joaquin Valley, California (Service 1998), or other peer-reviewed literature or expert opinion for the shrew to determine if the designated areas would meet the species' needs for conservation and whether these areas contained the appropriate primary constituent elements for the species. Further refinement was done by using satellite imagery, watershed boundaries, soil type coverages, vegetation/land cover data, and agricultural/urban land use data to eliminate areas that did not contain the appropriate vegetation or associated native plant species, as well as features such as cultivated agriculture fields, development, and other areas that are unlikely to contribute to the conservation of the shrew.
As stated earlier, the shrew occurs in habitats in and adjacent to riparian and wetland edge areas with a vegetation structure that provides cover, allowing for moist soils that support a diversity of terrestrial and aquatic insect prey. We have determined that one of the five known locations of shrew should be designated as critical habitat (CNDDB 2004). This area contains wetland and/or riparian habitat, is located within the historical range of the shrew, and is occupied by the shrew. The specific essential habitat is explained in greater detail below in the Unit Descriptions section.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features (primary constituent elements (PCEs)) that are essential to the conservation of the species, and that may require special management considerations and protection. These include, but are not limited to: space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
The specific primary constituent elements required for the shrew are derived from the biological needs of the shrew as described in the Background section of this proposal and in the final listing rule.

Space for Individual and Population Growth and Normal Behavior

As described previously, shrew were recorded in association with perennial and intermittent wetland habitats along riparian corridors, marsh edges, and other palustrine (marsh type) habitats in the southern San Joaquin Valley of California. The shrew presumably occurred in the moist habitat surrounding wetland margins in the Kern, Buena Vista, Goose and Tulare Lakes basins on the valley floor below 350 ft (107 m) elevation (Grinnell 1932, 1933; Hall 1981; Williams and Kilburn 1984; Williams 1986; Service 1998). With the draining and conversion of the majority of the shrew's natural habitat from wetland to agriculture and the channelization of riparian corridors for water conveyance structures, the vegetative communities associated with the shrew have become degraded and non-native species have replaced the plant species associated with the shrew (Grinnell 1932; Mercer and Morgan 1991; Griggs 1992; Service 1998). Current survey information has identified five areas where the shrew has been found (CNDDB 2004; Maldonado 1992; Williams and Harpster 2001; ESRP 2004). The five locations are the former Kern Lake Preserve (Kern Preserve) on the old Kern Lake bed, the Kern Fan recharge area, Cole Levee Ecological Preserve (Cole Levee), the Kern National Wildlife Refuge (Kern NWR), and the Goose Lake slough bottoms. The vegetative communities associated with these areas and with shrew occupancy are characterized by the presence of but are not limited to: Fremont cottonwood (Populus fremontii), willows (Salix spp.), glasswort (Salicornia sp.), wild-rye grass (Elymus sp.), rush grass (Juncus sp.), and other emergent vegetation (Service 1998). Maldonado (1992) found shrews in areas of moist ground covered with leaf litter near other low-lying vegetation, branches, tree roots, and fallen logs, or in areas with cool, moist soil beneath dense mats of vegetation kept moist by its proximity to the water line. He described specific habitat features that would make them suitable for the shrew: (1) Dense vegetative cover; (2) a thick, three-dimensional understory layer of vegetation and felled logs, branches, and detritus/debris; (3) heavy understory of leaf litter with duff overlying soils; (4) proximity to suitable moisture; and (5) a year-round supply of invertebrate prey. Williams and Harpster (2001) concluded that the best habitat for the shrew was found in "riparian and wetland communities with an abundance of leaf litter (humus) or dense herbaceous cover." They also determined that "although moist soil in areas with an overstory of willows or cotton woods appears to be favored," they doubted that such overstory was essential. Based on changes in the native habitat composition and structure and information on habitat descriptions of where the shrew have been found, we include the moist vegetative communities surrounding permanent and semipermanent wetlands in our description of shrew critical habitat because they are the habitat requirements needed by the shrew.

Food

The specific feeding and foraging habits of the shrew are not well known. In general, shrews primarily feed on insects and other animals, mostly invertebrates (Harris 1990; Williams 1991; Maldonado 1992). Food probably is not cached and stored, so the shrew must forage periodically day and night to maintain its high metabolic rate.
The vegetation communities described above provide a diversity of structural layers and plant species and likely contribute to the availability of prey for shrews. Therefore, conservation of the shrew should include consideration of the habitat needs of prey species, including structural and species diversity and seasonal *3450 availability. Shrew habitat must provide sufficient prey base and cover from which to hunt in an appropriate configuration and proximity to nesting sites. The shrew feeds indiscriminately on available larvae and adults of several species of aquatic and terrestrial insects. An abundance of invertebrates is associated with moist habitats, such as wetland edges, riparian habitat, or edges of lakes, ponds, or drainages that possess a dense vegetative cover (Owen and Hoffmann 1983). Therefore, to be considered essential, critical habitat consists of a vegetative structure that contains suitable soil moisture capable of supporting a diversity of invertebrates so that there is a substantial food source to sustain occurrences of the shrew.

Water

Open water does not appear to be necessary for the survival of the shrew. The habitat where the shrew have been found contain areas with both open water and mesic environments (Maldonado 1992; Williams and Harpster 2001). The availability of water contributes to improved vegetation structure and diversity which improves cover availability. The presence of water also attracts potential prey species improving prey availability.

Reproduction and Rearing of Offspring

Little is known about the reproductive needs of the shrew. The breeding season begins in February or March and ends in May or June, but can be extended depending on habitat quality and available moisture (Paul Collins, Santa Barbara Museum of Natural History, in litt. 2000). The edges of wetland or marshy habitat allow the shrew to provide hospitable environments and have a larger prey base to give birth and raise its young. The shrew's preference for dense vegetative understories also provides cover from predators. Dense vegetation also allows for the soil moisture necessary for a consistent supply of terrestrial and aquatic insect prey (Kirkland 1991; Ma and Talmage 2001; Freas 1990; Maldonado 1992; Maldonado et al. 1998).
The areas proposed for designation as critical habitat for the shrew consist of occupied habitat with the primary constituent elements that are essential for adult and juvenile shrews to maintain and sustain occurrences throughout their range. The PCEs below describe the physical and biological features essential to shrew conservation. Special management, such as habitat rehabilitation efforts (e.g., provision of an adequate and reliable water source and restoration of riparian habitat), may be necessary in the unit designated.

Primary Constituents for the Buena Vista Lake Shrew

Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that the shrew's primary constituent elements are:
(i) Riparian or wetland communities supporting a complex vegetative structure with a thick cover of leaf litter or dense mats of low-lying vegetation; and
(ii) Suitable moisture supplied by a shallow water table, irrigation, or proximity to permanent or semipermanent water; and
(iii) A consistent and diverse supply of prey.
The requisite riparian and wetland habitat is essential for the shrew because it provides space and cover necessary to sustain the entire life cycle needs of the shrew, as well as its invertebrate prey. The shrew is preyed upon by many large vertebrate carnivores as well as by avian predators. Therefore, a dense vegetative structure provides the cover or shelter essential for evading predators as well as serving as habitat for breeding and reproduction, and allows for the protection and rearing of offspring and the growth of adult shrews.

Criteria Used To Identify Critical Habitat

We are designating critical habitat on lands that we have determined essential to the conservation of the Buena Vista Lake shrew. These areas have the primary constituent elements described above. Protecting a variety of habitats and conditions that contain the PCEs will allow for the conservation of the species because it will increase the ability of the shrew to survive stochastic environmental (e.g., fire), natural (e.g., predators), demographic (e.g., low recruitment), or genetic (e.g., inbreeding) events, therefore lowering the probability of extinction. Suitable habitat within the historic range is extremely limited and remaining habitats are vulnerable to both anthropogenic and natural threats because so few extant occurrences of the shrew exist, and the number of individuals at each location is estimated to be low. Also, these areas provide habitats essential for the maintenance and growth of self-sustaining populations and metapopulations (a set of local populations where typically migration from one local population to other areas containing suitable habitat is possible) of shrews throughout its range. Therefore, these areas are essential to the conservation of the shrew.
We are designating critical habitat in the units that we have determined are essential to the conservation of the shrew, except for those excluded under Section 4