Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Mojave Population of the Desert Tortoise
Federal RegisterFeb 8, 1994
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SUMMARY: The U.S. Fish and Wildlife Service (Service) designates
critical habitat for the Mojave population of the desert tortoise
(Gopherus agassizii), a species federally listed as threatened under
the Endangered Species Act of 1973, as amended (Act). Located primarily
on Federal land, and to a lesser extent on State, private, and Tribal
lands, this critical habitat designation provides additional protection
under section 7 of the Act with regard to activities that require
Federal agency action. As required by section 4 of the Act, the Service
considered economic and other relevant impacts prior to making a final
decision on the size and configuration of critical habitat.
EFFECTIVE DATE: March 10, 1994.
ADDRESSES: The complete administrative record for this rule is on file
at the U.S. Fish and Wildlife Service, Nevada Field Office, Ecological
Services, 4600 Kietzke Lane, Building C-125, Reno, Nevada 89502. The
complete file for this rule will be available for public inspection, by
appointment, during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Mr. David L. Harlow, Field Supervisor,
Nevada Field Office, U.S. Fish and Wildlife Service, at the above
address (702/784-5227).
SUPPLEMENTARY INFORMATION:
Background
The Mojave population of the desert tortoise, referred to herein as
desert tortoise or tortoise, is one of three species in the genus
Gopherus found in the United States. The Berlandier's tortoise (G.
berlandieri) is found in northeastern Mexico and southern Texas. The
gopher tortoise (G. polyphemus) is found in the hot, humid portions of
the southeastern United States. G. agassizii is relatively large, with
adults measuring up to 15 inches in shell length, and inhabits the
Mojave, Colorado, and Sonoran Deserts in the southwestern United States
and adjacent Mexico. The species is divided into the Sonoran and Mojave
populations. The Sonoran population occurs south and east of the
Colorado River in Arizona and Mexico, and the Mojave population
occupies those portions of the Mojave and Colorado Deserts north and
west of the Colorado River in southwestern Utah, northwestern Arizona,
southern Nevada, and southern California.
For a thorough discussion of the ecology and life history of the
desert tortoise, see the Draft Recovery Plan for the Desert Tortoise
(Mojave Population) (U.S. Fish and Wildlife Service 1993) and the April
2, 1990, final rule listing the desert tortoise as a threatened species
(55 FR 12178). These documents incorporate the majority of current
biological information on the desert tortoise used to develop this
rule.
The Endangered Species Act of 1973, as amended (Act) requires the
Service to designate critical habitat to the maximum extent prudent and
determinable concurrently with listing a species as endangered or
threatened. On August 20, 1980, the Service listed the Beaver Dam Slope
population of the desert tortoise (Gopherus agassizii), in southwestern
Utah, as a threatened species and designated 35 square miles of
critical habitat (45 FR 55654). On September 14, 1984, the Service
received a petition from the Environmental Defense Fund, Natural
Resources Defense Council, and Defenders of Wildlife to list the desert
tortoise in Arizona, California, and Nevada as endangered. In September
1985, the Service determined that the listing was warranted but
precluded by other listing actions of higher priority under authority
of section 4(b)(3)(iii) of the Act (50 FR 49868). The Service made
annual findings of warranted but precluded from 1985 through 1989 under
section 4(b)(3)(C) of the Act. On May 31, 1989, the same three
environmental organizations provided substantial new information and
petitioned the Service to list the desert tortoise as endangered
throughout its range in the United States under the expedited emergency
provisions of the Act. As a result of the new information, on August 4,
1989 (54 FR 32326), the Service listed the Mojave population, excluding
the Beaver Dam Slope population in Utah, as endangered by emergency
rule. The Mojave population was designated in the emergency rule as all
tortoises occurring north and west of the Colorado River, in
California, Nevada, Arizona, and Utah. The Mojave population was then
proposed under normal listing procedures on October 13, 1989 (54 FR
42270), and listed as threatened on April 2, 1990 (55 FR 12178).
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time a species is determined to be endangered or threatened. The
Service's regulations (50 CFR 424.12(a)(2)) state that critical habitat
is not determinable if information sufficient to perform required
analyses of the impacts of the designation is lacking or if the
biological needs of the species are not sufficiently well known to
permit identification of an area as critical habitat. At the time of
listing, the Service found that critical habitat was not determinable
because the specific size and spatial configuration of essential
habitats, as well as vital linkages connecting areas necessary for
ensuring the conservation of the Mojave desert population throughout
its range, could not be determined without further information.
On January 8, 1993, several plaintiffs filed a motion in Desert
Tortoise et al. v. Lujan et al., Civ. No. 93-0114 MHP (N.D. Cal.)
seeking to stop the transfer of public land to the State of California
for construction of a low-level nuclear waste disposal facility in Ward
Valley located in southern California. The plaintiffs contended that
the Service violated the Act by failing to designate critical habitat
for the desert tortoise and sought an injunction prohibiting transfer
of the site until critical habitat was designated and a new section 7
biological opinion that addressed the effects of the transfer on
critical habitat was completed.
On January 27, 1993, the Natural Resources Defense Council and
other environmental groups sued to compel designation of critical
habitat for the Mojave population of the desert tortoise, alleging that
the Secretary had failed to meet the designation deadline under section
4(b)(6)(C)(ii) of the Act (Natural Resources Defense Council v.
Babbitt, No. C-93-0301 MHP (N.D. Cal.)). Plaintiffs further requested
the court to prohibit the Service from issuing any further biological
opinions for the tortoise under section 7 of the Act until critical
habitat was designated.
On May 21, 1993, the plaintiffs, in both cases, and the Secretary
agreed on a stipulation requiring the defendants to propose critical
habitat for the desert tortoise by August 1, 1993, and to designate
critical habitat by December 1, 1993. On July 30, 1993, the plaintiffs
agreed to an extension of these deadlines to August 29, 1993, for a
proposal and December 15, 1993, for a final decision.
On March 30, 1993, the Service announced the availability of the
Draft Recovery Plan for the Desert Tortoise (Mojave Population) (Draft
Recovery Plan) (58 FR 16691). The Draft Recovery Plan (U.S. Fish and
Wildlife Service 1993) divides the range of the desert tortoise into 6
recovery units and recommends establishment of 14 Desert Wildlife
Management Areas (DWMAs) within the recovery units. Within each DWMA,
the Draft Recovery Plan recommends specific management actions to
effect recovery of desert tortoises. The public comment period on the
Draft Recovery Plan closed on June 30, 1993.
The Service published a proposed rule to designate critical habitat
for the desert tortoise on August 30, 1993 (58 FR 45748). The August 30
proposal requested comments from all interested parties on the proposed
determination and associated economic analysis. This final rule
represents the Service's final decision on this issue. However, the
Service may revise critical habitat in the future if land management
plans, recovery plans, or other conservation strategies that are
developed and fully implemented reduce the need for the additional
protection provided by critical habitat designation.
Definition of Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as ``(i)
the specific areas within the geographic area occupied by the species *
* * on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and (ii) specific
areas outside the geographical area occupied by the species at the time
it is listed * * * upon a determination * * * that such areas are
essential for the conservation of the species.'' The term
``conservation,'' as defined in section 3(3) of the Act, means ``* * *
to use and the use of all methods and procedures which are necessary to
bring an endangered species or threatened species to the point at which
the measures provided pursuant to this Act are no longer necessary,''
i.e., the species is recovered and removed from the list of endangered
and threatened species. Section 3 further states that in most cases the
entire range of a species should not be encompassed within critical
habitat.
Role in Species Conservation
Use of the term ``conservation'' in the definition of critical
habitat indicates that its designation should identify lands that may
be needed for a species' eventual recovery and delisting. However, when
critical habitat is designated at the time a species is listed, the
Service frequently does not know exactly what may be needed for
recovery. In this regard, critical habitat serves to preserve options
for a species' eventual recovery.
The designation of critical habitat will not, in itself, lead to
recovery, but is one of several measures available to contribute to a
species' conservation. Critical habitat helps focus conservation
activities by identifying areas that contain essential habitat features
(primary constituent elements) regardless of whether or not they are
currently occupied by the listed species, thus alerting the public to
the importance of an area in the conservation of a listed species.
Critical habitat also identifies areas that may require special
management or protection. Critical habitat receives protection under
section 7 of the Act with regard to actions carried out, funded, or
authorized by a Federal agency. The added protection of these areas may
shorten the time needed to achieve recovery. Aside from the added
protection provided under section 7, the Act does not provide other
forms of protection to lands designated as critical habitat.
Designating critical habitat does not create a management plan, it
does not establish numerical population goals, it does not prescribe
specific management actions (inside or outside of critical habitat),
nor does it have a direct effect on areas not designated as critical
habitat. Specific management recommendations for critical habitat are
more appropriately addressed in recovery plans, management plans, and
section 7 consultations.
In addition to considering biological information in designating
critical habitat, the Service also considers economic and other
relevant impacts of designating critical habitat. The Service may
exclude areas from critical habitat when the benefits of such exclusion
outweigh the benefits of including the areas within critical habitat,
provided that the exclusion will not result in the extinction of a
species.
Critical habitat identifies specific areas essential to the
conservation of a species. Areas not currently containing all of the
essential features, but with the capability to do so in the future, may
also be essential for the long-term recovery of the species,
particularly in certain portions of its range, and may be designated as
critical habitat. However, not all areas containing the features of a
listed species' habitat are necessarily essential to the species'
recovery. Areas not included in critical habitat that contain one or
more of the essential elements are still important to a species'
conservation and may be addressed under other facets of the Act and
other conservation laws and regulations. All designated areas may also
be of considerable value in maintaining ecosystem integrity and
supporting other species, although that is not a consideration in
designating critical habitat.
The process of designating critical habitat for the desert tortoise
consisted of three steps that are explained in this document. The first
step was to determine the elements and areas essential to the
tortoise's conservation. This step was completed in the proposal
process and is summarized in the sections of this rule entitled
``Primary Constituent Elements'' and ``Criteria for Identifying
Critical Habitat.'' The second step was to determine the potential
costs of the proposed designation, which was completed in the proposal
process and is summarized in this rule in the section entitled
``Economic Summary of the August 30 Proposal.'' The final step was to
consider whether any areas should be excluded based upon economic and
other relevant impacts and to determine the costs associated with the
final designation. This step is discussed in the sections entitled
``Summary of the Exclusion Process,'' ``Effects of the Designation,''
``Economic Impacts of the Final Designation,'' and ``Available
Conservation Measures.'' A section on biodiversity is included to
highlight the importance of that issue and its relationship to the
desert tortoise.
Designation of critical habitat may be reevaluated and revised, at
any time, when new information indicates that changes are warranted.
The Service may revise critical habitat if land management plans,
recovery plans, or other conservation strategies are developed and
fully implemented, reducing the need for the additional protection
provided by critical habitat designation. For example, after the Desert
Tortoise Recovery Plan is finalized, land management agencies may
implement increased protection for the desert tortoise. If protection
measures are implemented, the Service may revise its critical habitat
designation in the future. With increased protection, some components
of environmental variability threatening tortoise populations (or
contributing to the variance of growth rates) may be reduced, thus
lessening the need for large populations. In such an event, a
population viability analysis--considering population trends based on
the variance of population growth rates--might suggest that smaller,
viable, populations would require less habitat (i.e., smaller DWMAs and
less need for critical habitat designation). Therefore, critical
habitat units (CHUs) could be decreased in size, increased in size, or
eliminated based on changes in certain environmental variables, in land
status, or tortoise populations.
Primary Constituent Elements
In determining the areas to designate as critical habitat, the
Service considers those physical and biological attributes that are
essential to a species' conservation. In addition, the Act stipulates
that the areas containing these elements may require special management
considerations or protection. Such physical and biological features, as
stated in 50 CFR 424.12, include, but are not limited to, the
following:
(1) Space for individual and population growth, and for normal
behavior;
(2) Food, water, or other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing of offspring; and
(5) Generally, habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
The Service is required to base critical habitat designations upon
the best scientific and commercial data available (50 CFR 424.12). In
designating critical habitat for the desert tortoise, the Service has
reviewed its overall approach to the conservation of the desert
tortoise undertaken since its emergency listing in 1989. In addition,
the Service reviewed all available information that pertains to habitat
requirements of this species, including material received during the
public comment period from State and Federal agencies, other entities,
and members of the public.
Inherent difficulties in designating critical habitat for wide-
ranging threatened species, such as the desert tortoise, make it
unlikely that all habitat within the range of the species would be
included in the designation. In fact, section 3(5)(C) of the Act states
that, in most cases, critical habitat should not encompass the entire
range of the species. Based upon the parameters discussed below, the
Service determined the appropriateness of including specific areas.
Habitat Characteristics
The Service has determined that the physical and biological habitat
features (referred to as the primary constituent elements) that support
nesting, foraging, sheltering, dispersal, and/or gene flow are
essential to the conservation of the desert tortoise. These elements
were determined from studies on desert tortoise habitat preferences
(e.g., habitat structure and use, forage requirements) throughout the
range of the species (U.S. Fish and Wildlife Service 1993). Desert
tortoise habitat consists of the following primary constituent
elements: Sufficient space to support viable populations within each of
the six recovery units and provide for movements, dispersal, and gene
flow; sufficient quantity and quality of forage species and the proper
soil conditions to provide for the growth of such species; suitable
substrates for burrowing, nesting, and overwintering; burrows, caliche
caves, and other shelter sites; sufficient vegetation for shelter from
temperature extremes and predators; and habitat protected from
disturbance and human-caused mortality.
Designated critical habitat for the desert tortoise encompasses
portions of the Mojave and Colorado Deserts that contain the primary
constituent elements and focuses on areas that are essential to the
species' recovery. The CHU boundaries are based on proposed DWMAs in
the Draft Recovery Plan. Because the boundaries were drawn to conform
with accepted principles of conservation biology (U.S. Fish and
Wildlife Service 1993), the areas may contain both ``suitable'' and
``unsuitable'' habitat. The term ``suitable'' generally refers to
habitat that provides the constituent elements of nesting, sheltering,
foraging, dispersal, and/or gene flow.
Ecological Considerations
The range of the Mojave population of the desert tortoise includes
portions of the Mojave Desert and the Colorado Desert division of the
Sonoran Desert (Colorado Desert) and spans portions of four States. The
Mojave Desert is located in southern California, southern Nevada,
northwestern Arizona, and southwestern Utah. It is bordered on the
north by the Great Basin Desert, on the west by the Sierra Nevada and
Tehachapi ranges, on the south by the San Gabriel and San Bernardino
Mountains and the Colorado Desert, and on the east by the Grand Wash
Cliffs and Hualapai Mountains of Arizona. This area includes parts of
Inyo, Kern, Los Angeles, San Bernardino, and Riverside Counties in
California; the northwestern part of Mohave County in Arizona; Clark
County, and the southern parts of Esmeralda, Nye, and Lincoln Counties
in Nevada; and part of Washington County in Utah. The Colorado Desert
is located south of the Mojave Desert, east of California's Peninsular
Ranges, and west of the Colorado River. This area includes Imperial
County and parts of San Bernardino and Riverside Counties, California.
The desert tortoise is most commonly found within the desert scrub
vegetation type, primarily in creosote bush scrub vegetation, but also
in succulent scrub, cheesebush scrub, blackbush scrub, hopsage scrub,
shadscale scrub, microphyll woodland, and Mojave saltbush-allscale
scrub. Within the desert microphyll woodland, the desert tortoise
occurs in blue palo verde-ironwood-smoke tree woodland. The desert
tortoise also occurs in scrub-steppe vegetation types of the desert and
semidesert grassland complex (U.S. Fish and Wildlife Service 1993).
Within these vegetation types, desert tortoises potentially can
survive and reproduce where their basic habitat requirements are met.
These requirements include a sufficient amount and quality of forage
species; shelter sites for protection from predators and environmental
extremes; suitable substrates for burrowing, nesting, and
overwintering; various plants for shelter; and adequate area for
movement, dispersal, and gene flow. Throughout most of the Mojave
Region, tortoises occur most commonly on gently sloping terrain with
soils ranging from sand to sandy-gravel and with scattered shrubs, and
where there is abundant inter-shrub space for growth of herbaceous
plants. Throughout their range, however, tortoises can be found in
steeper, rockier areas (U.S. Fish and Wildlife Service 1993).
The size of desert tortoise home ranges varies with respect to
location and year. Females have long-term home ranges that are
approximately half that of the average male, which range from 10 to 80
hectares (Berry 1986).
Although desert tortoise populations are not generally known to
inhabit elevations much above 4,000 feet, tortoise burrows have been
located at 4,800 feet in the Providence and Clark Mountains of the
eastern Mojave (Luckenbach 1982; W. Yumiko, pers. comm., 1992).
Reliable sources have recorded desert tortoises at 7,300 feet in Death
Valley National Monument, California (Luckenbach 1982); at 4,800 feet
in the Goodsprings Mountains (R. Marlow, pers. comm.) and the Spring
Range, Nevada (C. Stevenson, pers. comm.); at 5,000 feet in the East
Pahranagat Range, Nevada (C. Stevenson, pers. comm.); and at 5,200 feet
on the Nevada Test Site (B. Burge, pers. comm.). In addition, numerous
anecdotal reports place desert tortoises as high as 7,000 feet on Mount
Charleston, Nevada, and in the Clark Mountains, California. Fossil
remains from the Pleistocene to late Holocene (12,000 to 1,000 years
before present) indicate the preferred habitat of the desert tortoise
included elevations far exceeding those of today, perhaps in response
to arid climatic episodes that occurred during this epoch (Morafka and
Brussard, in prep.; Schneider and Everson 1989). This fossil evidence
indicates that the species may have spent less than 10 percent of its
taxonomic life span in the contemporary warm creosote bush desert, the
remainder having been spent in more mesic, equable, and productive
climates and ecosystems. This implies that contemporary tortoise
populations in most of the Mojave region are likely to be vulnerable to
adverse climatic conditions and to regional climate change (Morafka and
Brussard, in prep.).
Throughout its geographic distribution, the desert tortoise
exhibits trait variations in behavior, ecology, genetics, morphology,
and physiology (Weinstein and Berry 1988, Germano 1989, Lamb et al.
1989, Brussard 1992, Brussard and Britten 1992). For example, three
basic shell shapes (phenotypes) are indicative of desert tortoise
populations in distinct geographic areas within their range (Weinstein
and Berry 1988). Tortoises occurring in California and southern Nevada
exhibit a boxlike, high-domed shell phenotype; Beaver Dam Slope
tortoises have a short plastron (underside) and a low-domed shell
phenotype; and Sonoran Desert tortoises have a pear-shaped, low-domed
shell phenotype (Weinstein and Berry 1988). Furthermore, identification
of the three phenotypes parallels results of mitochondrial DNA (mtDNA)
studies that also ``type'' desert tortoises into the same three
populations based on genetics (Lamb et al. 1989). It is because of such
variability that six recovery units representing six distinct
population segments of the Mojave population have been proposed in the
Draft Recovery Plan (U.S. Fish and Wildlife Service 1993). These
population segments should not be confused with subspecies or
recognized populations, e.g., the Mojave or Sonoran populations. The
six recovery units within the range of the desert tortoise, as outlined
in the Draft Recovery Plan, mirror the biotic and abiotic variability
found in the desert tortoise habitat.
The objective of the Draft Recovery Plan is the recovery and
delisting of the Mojave population of the desert tortoise. Desert
tortoise populations have declined substantially throughout the Mojave
Region in the last 2 decades, primarily due to habitat loss. These
populations grow slowly, and significant improvement in the status of
the Mojave population will be a very long process, measured in decades
or centuries in most parts of the Mojave Region. Nevertheless,
delisting of the desert tortoise may be considered if the following
criteria are met:
(1) As determined by a scientifically credible monitoring plan, the
population within a recovery unit exhibits a statistically significant
upward trend toward target density or remains stationary at target
density for at least 12 years (one-half of a desert tortoise
generation);
(2) Enough habitat is protected within a recovery unit and/or the
habitat and desert tortoise populations are managed intensively enough
to ensure long-term population viability;
(3) Regulatory mechanisms or land management commitments have been
implemented that provide for adequate long-term protection of desert
tortoises and their habitat; and
(4) The population is unlikely to need protection under the Act in
the foreseeable future.
Even though the Draft Recovery Plan has not been approved, it
represents the best available biological information on the conditions
needed to bring the Mojave population of the desert tortoise to the
point where listing under the Act is no longer necessary (i.e.,
recovery).
The Service would delist the Mojave population of the desert
tortoise if the delisting criteria were met because protection under
the Act would be unnecessary. With the delisting criteria met, the
desert tortoise and its habitat would continue to be protected under
other regulatory mechanisms outlined in a final recovery plan. Upon
delisting, the interim protection afforded by the Act in the
designation of critical habitat would be eliminated.
Management Considerations
Current and historic desert tortoise habitat loss, deterioration,
and fragmentation is largely attributable to urban development,
military operations, and multiple-uses of public land, such as off-
highway vehicle (OHV) activities and livestock grazing. Historically,
habitat reduction and fragmentation have not been uniform throughout
the desert tortoise's range, but have been concentrated around
populated areas, such as Mohave, Boron, Kramer Junction, Barstow,
Victorville, Apple Valley, Lucerne Valley, and Twentynine Palms,
California. Similar patterns are evident near Las Vegas, Laughlin, and
Mesquite, Nevada; and St. George, Utah.
Human ``predation'' (taking desert tortoises out of their natural
populations either by death (accidental or intentional) or by removal)
is also a major factor in the decline of the desert tortoise. People
illegally collect desert tortoises for pets, food, and commercial
trade. Some immigrants to the United States have collected desert
tortoises for medicinal or other cultural purposes (U.S. Fish and
Wildlife Service 1993).
Desert tortoises are often struck and killed by vehicles on roads
and highways, and mortality of desert tortoises due to gunshot and OHV
activities is common in many parts of the Mojave Region, particularly
near cities and towns. In the western Mojave Desert of California, 14.3
percent of the carcasses found on 11 permanent study plots showed
evidence of gunshot (Sievers et al. 1988). At one plot, 28 percent of
the carcasses had evidence of gunshot. Loss of tortoises from vandalism
has also been reported in northwestern Arizona. Approximately 10
percent of shell remains from a tortoise study plot near Littlefield,
Arizona, had gunshot wounds.
OHV use in the desert has increased and proliferated since the
1960s (U.S. Fish and Wildlife Service 1993). As of 1980, OHV activities
affected approximately 25 percent of all desert tortoise habitat in
California, as well as substantial portions in southern Nevada (U.S.
Fish and Wildlife Service 1993). Negative effects range from minor
habitat alteration to total denudation of extensive areas. While direct
effects are immediate (mortality from crushing, collection, and
vandalism), indirect effects can be either immediate (disruption of
soil integrity; degradation of annual plants, grasses, and perennial
plants; and/or destruction of desert tortoise shelter sites), delayed,
and/or cumulative (soil loss due to erosion, soil compaction and its
effects on annual and perennial plants, water pollution, and litter and
refuse) (Biosystems Analysis 1991).
Impacts of roads within desert tortoise habitat extend
significantly beyond the tracks that are created. Fewer tortoise signs
are found closer to roads, suggesting reduced populations (Nicholson
1978). Thus, well-used OHV areas often result in depressed tortoise
populations extending beyond the immediate boundaries of the directly
disturbed habitat.
The use of OHVs appears to have a significant effect on tortoise
abundance and distribution. Although road closures have been
implemented in some areas, illegal vehicle route proliferation has also
occurred in many areas and can result in a significant cumulative loss
of habitat. Human access increases the incidence of tortoise mortality
from collecting, gunshot, and crushing by vehicles.
Domestic livestock grazing has occurred in desert tortoise habitat
since the mid-1800s, with an increase in intensity near the turn of the
century to the mid-1930s (Biosystems Analysis 1991). Possible direct
impacts from grazing include trampling of both tortoises and shelter
sites; possible indirect impacts include loss of plant cover, reduction
in number of suitable shelter sites, change in vegetation, compaction
of soils, reduced water infiltration, erosion, inhibition of nitrogen
fixation in desert plants, and the provision of a favorable seed bed
for exotic annual vegetation (U.S. Fish and Wildlife Service 1991,
1993). Habitat destruction and degradation are especially evident in
livestock watering, bedding, loading, and unloading areas (U.S. Fish
and Wildlife Service 1991).
The degree and nature of impacts from livestock grazing are
dependent upon the local ecosystem, grazing history, seasons of use,
stocking rates, annual rainfall, and density of the tortoise
population. Desert ecosystems require decades to recover from
disturbances, and desert tortoise populations are incapable of rapid
growth, even under optimum conditions.
Desert tortoises, particularly hatchlings and juveniles, are preyed
upon by several native species of mammals, reptiles, and birds.
Domestic and feral dogs are a new source of mortality.
Common raven (Corvus corax) populations in the southwestern deserts
have increased significantly since the 1940s, presumably in response to
expanding human use of the desert. Sewage ponds, landfills (authorized
and unauthorized), power lines, roads, and other human uses have
increased available foraging, roosting, and nesting opportunities for
ravens. Over the last 20 years, raven populations in the western Mojave
Desert have increased 1528 percent between 1968 and 1988 (about 15
percent per year) and increased in the Colorado-Sonoran Deserts 474
percent (over 9 percent per year). While not all ravens may include
tortoises as significant components of their diets, these birds are
highly opportunistic in their feeding patterns and concentrate on
easily available seasonal food sources, such as juvenile tortoises.
Increased mortality of young desert tortoises (in part due to predation
by ravens), combined with drastically lowered survivorship of adults,
is likely responsible for observed catastrophic population declines
(U.S. Fish and Wildlife Service 1993).
An upper respiratory tract disease (URTD) is prevalent in captive
desert tortoises and has been identified in wild desert tortoises in
many localities in the western Mojave Desert and in limited localities
elsewhere. URTD appears to be spreading and may have been introduced to
wild populations through illegal releases of diseased captive desert
tortoises. Wild desert tortoises with signs of URTD are commonly found
near cities and towns with concentrations of captive desert tortoises
(Marlow and Brussard 1993). Disease has contributed to high mortality
rates in the western Mojave Desert in the last 4 years (Avery and Berry
1990, U.S. Fish and Wildlife Service 1993).
Recent studies have demonstrated Mycoplasma agassizii sp. nov. as
the causative agent of URTD. Predisposing factors, such as habitat
degradation, poor nutrition, and drought, are likely involved in
increasing the susceptibility of individual animals to disease
(Jacobson et al. 1991). Drought and concomitant poor nutrition have the
potential to compromise desert tortoises immunologically and,
therefore, make them more susceptible to URTD and other diseases.
Controlling human-related spread of URTD, improving habitat conditions,
and monitoring health status of desert tortoise populations are some of
the more important management tools that can be used in controlling
URTD in wild populations of the desert tortoise (U.S. Fish and Wildlife
Service 1993).
A shell disease has also been observed in the Chuckwalla Bench
population in the eastern Colorado Desert (Jacobson et al. 1992). A
variety of mineral and metal deficiencies, as well as various
toxicants, are known to cause integumentary pathology in mammals,
suggesting disease or toxicosis may be responsible for these observed
shell abnormalities (U.S. Fish and Wildlife Service 1993). Another
shell disease, osteopenia, occurs in desert tortoise populations on the
Beaver Dam Slope and may be related to poor nutrition (Jarchow and May
1989).
Criteria for Identifying Critical Habitat
The maintenance of stable, self-sustaining, and well-distributed
populations of desert tortoises throughout their range is dependent
upon habitat quality and its ability to support viable populations. The
biological and physical characteristics of the desert ecosystem that
support nesting, foraging, sheltering, dispersal, and/or gene flow are
essential for this purpose. The Service based its designation of
critical habitat on those areas recommended for recovery of the desert
tortoise in the Draft Recovery Plan.
The Draft Recovery Plan proposes 14 DWMAs within 6 recovery units
within the range of the desert tortoise. The Service used the DWMAs as
the basis for CHUs because:
(1) The Draft Recovery Plan's conservation strategy is based upon
the best available information on desert tortoises gathered and
analyzed over the past 20 years;
(2) The Draft Recovery Plan represents an in-depth analysis of the
conservation needs of the desert tortoise;
(3) The areas recommended as DWMAs were proposed by experts
familiar with the species and its habitat based on the principles of
conservation biology; and
(4) Use of the DWMAs is consistent with the Service's other
conservation efforts (e.g., it has been the focus in section 7
consultations and conservation planning).
The Service's identification of areas consistent with the proposed
DWMAs containing the primary constituent elements described above was
based on the seven principles of conservation biology used in the Draft
Recovery Plan:
(1) Reserves should be well-distributed across a species' native
range;
(2) Reserves should contain large blocks of habitat with large
populations of the target species;
(3) Blocks of habitat should be close together;
(4) Reserves should contain contiguous rather than fragmented
habitat;
(5) Habitat patches should contain minimal edge to area ratios;
(6) Blocks should be interconnected by corridors or linkages
containing protected, preferred habitat for the target species; and
(7) Blocks of habitat should be roadless or otherwise inaccessible
to humans.
Critical habitat is based on the framework of the Draft Recovery
Plan. Should a final approved recovery plan vary significantly from the
draft, or significantly change the assumptions underlying this critical
habitat designation, then the Service may reevaluate critical habitat
boundaries.
Differences From the Draft Recovery Plan
Designation of critical habitat does not accomplish the same goals
or have as dramatic an effect upon tortoise conservation as does a
recovery plan because critical habitat does not apply a management
prescription to designated areas. Because critical habitat designation
is not a management plan, there was not a limitation on the size of the
areas designated, although the designation is consistent with
recommendations of the Draft Recovery Plan.
Adjustments to Legally Described Boundaries
The regulations require that the Service define ``* * * by specific
limits using reference points and lines as found on standard
topographic maps'' those areas designated as critical habitat (50 CFR
424.12 (c)). After selecting DWMAs as the starting point, the Service
made several types of adjustments. To facilitate legal definition, CHU
boundaries were adjusted to adjacent section lines, depending upon the
amount and quality of habitat within the adjacent sections. The
boundaries generally follow the 4,100-foot elevation contour line,
except where excluding higher elevations would compromise reserve
design principles. When adjacent to cities or towns, critical habitat
boundaries were drawn on \1/2\ or \1/4\ section lines to remove as much
unsuitable habitat as possible.
In addition to adjusting DWMA boundaries to meet the requirements
to define critical habitat boundaries, the Service made other changes.
Some CHUs represent more precisely described desert tortoise habitat
within the DWMA boundary, and thus, encompass a much smaller area. For
example, portions of DWMAs were not included in critical habitat if
unsuitable habitat was identifiable on available maps and the exclusion
would not affect the size or configuration recommendations made by the
Draft Recovery Plan. Conversely, some critical habitat boundaries were
expanded beyond DWMA boundaries to include additional habitat based on
information made available to the Service during preparation of the
rule.
In addressing the above factors, the Service considered existing
suitable habitat and desert tortoise populations that were not included
in existing DWMAs and areas where additional protection should be
considered to reduce the risk to recovery. When including other areas,
the Service considered factors similar to those outlined in the Draft
Recovery Plan on contiguity, shape, habitat quality, and spacing. Areas
with minimal fragmentation were selected over areas with more extensive
fragmentation.
The desert tortoise requires large, contiguous areas of habitat to
meet its life requisites. Human activities have reduced much of the
habitat in some areas to small, fragmented, and isolated areas that are
not expected to support viable populations over time. In some cases,
those areas were designated as critical habitat when they were needed
to promote future development of large contiguous habitat areas in the
future.
Lands Outside of Critical Habitat
Not all suitable desert tortoise habitat was included in critical
habitat. The Service recognizes the importance of all lands, but did
not incorporate all habitat within CHUs, primarily because most of
these lands did not meet the designation criteria (i.e., were not
associated with an area recommended in the Draft Recovery Plan, were
too small to maintain a stable population of tortoises over time, or
were already protected). This does not mean that lands outside of
critical habitat do not play an important role in the tortoise's
conservation. These lands are also important to providing nesting,
foraging, sheltering, dispersal, and/or gene flow habitat for
tortoises.
Previously Protected Areas
The current management policies of the Desert National Wildlife
Range, Joshua Tree National Monument, and the Desert Tortoise Natural
Area provide adequate protection against potential habitat-altering
activities because they are primarily managed as natural ecosystems.
The Service considered their relative contribution to the tortoise's
conservation but did not include them in critical habitat because of
their current classification. These lands are essential to the
conservation of the species because they provide important links and
contain large areas of contiguous habitat.
By themselves, these previously protected areas are not large
enough and do not contain sufficient population levels to support
viable populations. They will be considered in developing recovery
areas for the desert tortoise, in addition to surrounding public lands
with desert tortoise habitat.
Management Planning
The Service's intent in designating critical habitat for the desert
tortoise is to provide protection for habitat that contains constituent
habitat elements in sufficient quantities and quality to maintain a
stable population of desert tortoises throughout their range. The
emphasis for future management will be on maintaining or developing
habitat that has the characteristics of suitable tortoise habitat and
to avoid or reduce the adverse effects of current management practices.
Although critical habitat is not a management plan, the areas
selected for inclusion play a role in maintaining a stable and well-
distributed population of tortoises. Identification of these areas
concluded the first step in the designation of critical habitat for the
desert tortoise.
Economic Summary of August 30 Proposal
Section 4(b)(2) of the Act requires the Service to designate
critical habitat on the basis of the best scientific data available and
to consider the economic effects and other relevant impacts of
specifying any particular area as critical habitat. The Secretary may
exclude areas from critical habitat if he determines that the benefits
of such exclusions outweigh the benefits of specifying such areas as
part of the critical habitat, unless he determines, based on the best
scientific and commercial data available, that the failure to designate
such areas as critical habitat will result in the extinction of the
species concerned.
The economic effects of designating critical habitat for the desert
tortoise are the incremental impacts over and above those impacts that
occurred as a result of implementation of management plans, such as
Federal land management plans, habitat conservation plans that have
already been implemented, and previous events, including the listing of
the desert tortoise. The economic analysis considers the critical
habitat impacts to be those incremental impacts that are expected as a
result of the critical habitat.
The Service analyzed the economic effects of the August 30, 1993,
proposal to designate critical habitat (Schamberger et al. 1993). A
summary of that analysis was provided in the proposed rule (58 FR
45748). That analysis examined how designation of critical habitat was
expected to affect the use of Federal lands or State or private
activities with some Federal involvement, and the economic costs or
benefits that would ensue in the four-State area. These were the
regional economic effects of the designation that were over and above
those expected to result from previous actions, including the listing
of the desert tortoise as threatened. The economic analysis assumed
those values that were in place prior to critical habitat (e.g., final
Bureau of Land Management (BLM) plans, section 7 jeopardy standard, the
Clark County short-term habitat conservation plan, and section 9
prohibitions) as the baseline for this analysis. As a result, critical
habitat effects were those incremental impacts that would occur solely
as a result of the critical habitat proposal above and beyond the
effects of these other actions.
The critical habitat covers a broad geographic area in four States
and includes Federal, State, private, and Tribal lands. Because the
designation affects only Federal agency actions under section 7, it is
assumed that any ensuing economic impacts of the designation would
occur only on Federal lands or on non-Federal lands where there is
Federal involvement. The Service concluded that the impacts on Federal
lands would be largely limited to livestock grazing, mining, and
recreational activities that may affect tortoise habitat.
As a result of that analysis, the Service concluded that the August
30 proposal would affect 51 Federal grazing permits that provide about
59,500 animal unit months (AUMs). The maximum potential reduction in
regional employment was estimated to be 425 jobs (340 direct jobs; 85
indirect jobs). The profitability of ranches in the seven counties is
estimated to fall by $4,470,000 due to critical habitat designation.
That is the estimated permanent decrease in ranch profits, capitalized
at 10 percent for a 50-year period, in accordance with the methodology
of Rice et al. (1978). Reduced grazing fees in the seven-county region
from Federal allotments was estimated to total $170,000 annually. Half
of this amount ($85,000) was returned to the grazing programs for range
improvements, the U.S. Treasury received a maximum 37.5 percent
($63,750) of the fees, and local governments received a minimum of 12.5
percent ($21,250). The effect of reduced grazing on Federal land is
expected to vary among counties. The designation of critical habitat is
not expected to have significant economic effects within any of the
seven counties.
Designation of critical habitat will not affect ongoing mining
operations, as the ground disturbances typical of mineral extraction
make mine sites unsuitable for tortoise habitat. Expansion of existing
mines or development of new mines will require section 7 consultation
with the Service. Most of the CHUs include surface areas on which
mining claims have been filed. The economic impact of critical habitat
designation cannot be determined at the present time due to the
uncertainty of economically feasible mineral extraction. Mining claims
allow exploration but do not assure exercise of exploration rights, nor
do they ensure economic profits to the owner.
The Service was unable to identify significant economic impacts to
recreation activities due to critical habitat designation.
Conservation of the desert tortoise and its habitat through
designation of critical habitat will result in a wide range of
benefits, including recreation values, watershed protection, and
others, as well as the values that society places on conservation of
the tortoise and its ecosystem. However, it was not possible to place
dollar estimates on these values.
As a result of this analysis, the Service concluded that the
economic impacts that would be incurred from critical habitat
designation would not be significant to either the regional (seven-
county) or national economy. The Service did not recommend any
exclusions based on economic effects.
Summary of the Exclusion Process
To determine whether or not to exclude areas from the designation
of critical habitat pursuant to section 4(b)(2) of the Act requires
determinations of:
(1) The benefits of excluding an area as critical habitat,
(2) The benefits of including an area, and
(3) The effects of exclusions on the probability of species
extinction.
This process consists of estimating the benefits of retaining or
excluding CHUs, weighing those benefits, and determining if exclusion
of an area or areas will lead to the extinction of the species. If the
exclusion of an area or areas from critical habitat will result in
eventual species extinction, then the exclusion would be prohibited
under the Act.
Extinction
Critical habitat consists of areas with habitat characteristics
that are essential to the conservation of a listed species. However,
the exclusion process focuses upon a threshold for species extinction.
Conservation (recovery) and extinction are separate standards. Recovery
and extinction are at opposite ends of a continuum, with the likelihood
of a species' continued survival increasing the closer the species is
to the recovery end of the continuum. It may be more difficult to
predict the point at which extinction would be inevitable than to
determine where recovery may occur.
Each such determination may be different for different species and
may vary over the range of a species. It may be related to a number of
factors, such as the number of individuals, amount of habitat,
condition of the habitat, and reproductive success. Extinction of a
wide-ranging species such as the desert tortoise would most likely
occur as a result of increased fragmentation of its habitat (affecting
quality). Portions of the species' range would no longer support
tortoises before the species would become extinct. Cumulatively,
reductions in range would inevitably lead to the species' extinction.
The focus of the analysis was on those factors that pertain to these
issues and included consideration of the condition and location of
habitat.
Criteria and Decision
The Act specifically prohibits consideration of economic effects
when listing species as threatened or endangered, but requires an
analysis of the economic and other relevant impacts of designating
critical habitat. Therefore, economic costs and benefits of critical
habitat designation were defined as the economic effects that:
(1) Exceed those that resulted from listing the desert tortoise as
a threatened species in April 1990; and
(2) Are above those economic effects resulting from the previous
implementation of tortoise protection measures by Federal land
management agencies.
In evaluating the designation of critical habitat to determine
whether or not to exclude areas because of concerns over economic
effects, the Service used the following process:
(1) Areas were identified that are essential to the conservation of
the species based upon the criteria described in this document; and
(2) An economic analysis was conducted to ascertain the anticipated
economic consequences of designating areas as critical habitat, using
the county as the basic level of economic analysis.
Exclusion
After considering the economic and other factors that may be
pertinent to any decision to exclude areas from designation as critical
habitat, the Secretary of the Interior has determined that no
exclusions are appropriate.
Biological Modifications to Boundaries
Based on information received during the proposal process, the
Service refined boundaries of six CHUs based on biological information
that these areas did not contain constituent elements and that deletion
of them from critical habitat would not compromise the function of the
CHU or its reserve design. These areas included:
(1) Approximately 2,000 acres in the Chocolate Mountains in the
Chuckwalla CHU in California;
(2) Approximately 20,800 acres within and adjacent to the
Twentynine Palms Marine Corps Base in the Ord-Rodman CHU in California;
(3) Approximately 13,200 acres in the Newberry Mountains in the
Piute-Eldorado CHU in Nevada;
(4) Approximately 76,300 acres on both the northern and southern
borders of the Mormon Mesa CHU in Nevada;
(5) Approximately 80,757 acres around the Gold Butte-Pakoon CHU in
Arizona; and
(6) Approximately 8,100 acres north of St. George, Utah in the
Upper Virgin River CHU in Utah.
In addition, based on information and a request submitted from the
BLM, the Service included an additional 1,920 acres on the southern
border of the Beaver Dam Slope CHU in Arizona. This request was
accommodated because:
(1) It was made by the landowner and will not affect other
landowners,
(2) The proposed inclusion constitutes an insignificant change from
the proposed rule, and
(3) It will allow the BLM's desert tortoise study plots to be
included within desert tortoise habitat.
Effects of the Designation
The proposed rule for the designation of critical habitat for the
desert tortoise published on August 30, 1993, identified 12 areas
encompassing a total of approximately 6.6 million acres. It included
eight CHUs totaling 4.8 million acres in California, four CHUs totaling
1.3 million acres in Nevada, two CHUs totalling 137,200 acres in Utah,
and two CHUs totaling 417,400 acres in Arizona. This included 5 million
acres of BLM land, 247,400 acres of military lands, 151,200 acres of
National Park Service land, 170,100 acres of State lands, 1,600 acres
of Tribal lands, 1,079,500 acres of private lands, and 100 acres of
Forest Service land. A summary of changes in acreage between the
proposed rule and this final rule are provided in Table 1.
Table 1.--Summary of Changes in Acreage Between Proposal and Final
Critical Habitat Designations
[Figures are rounded to the nearest hundred]
------------------------------------------------------------------------
Total
acre
reduction
------------------------------------------------------------------------
Reductions:
Bureau of Land Management.................................. 204,900
Military................................................... 5,200
National Park Service...................................... 3,900
State...................................................... 4,000
Tribal..................................................... 0
Increases:
Private.................................................... \1\18,900
------------------------------------------------------------------------
\1\An increase in private land acreage resulted from a correction in
land status in the Mormon Mesa CHU; the BLM land sold to Aerojet-
General Corporation through the Nevada-Florida Land Exchange Act of
1988 was originally shown as BLM.
Total Acres Included in Critical Habitat
As a result of boundary revisions based on new biological
information, the Service is designating approximately 199,100 acres
less than proposed in the August 30, 1993 proposal. The final rule for
the designation of critical habitat for the desert tortoise identifies
12 areas, encompassing a total of 6.4 million acres. The Service has
designated eight units totaling 4.8 million acres in California, four
units totaling 1.2 million acres in Nevada, two units totaling 129,100
acres in Utah, and two units totaling 338,700 acres in Arizona. The
final designation encompasses approximately 4,790,600 acres of BLM
land, 242,200 acres of military land, 147,200 acres of National Park
Service land, 166,200 acres of State land, 1,600 acres of Tribal land,
and 1,098,400 acres of private land (see Tables 2 and 3). Three CHU
boundaries span more than one State--Piute-Eldorado (California and
Nevada), Gold Butte-Pakoon (Nevada and Arizona), and Beaver Dam Slope
(Nevada, Arizona, and Utah).
Table 2.--Approximate Acreage of Critical Habitat Designated for the
Desert Tortoise by Critical Habitat Unit
[Figures are rounded to the nearest hundred]
------------------------------------------------------------------------
Critical habitat unit Acres
------------------------------------------------------------------------
California:
Chemehuevi................................................. 937,400
Chuckwalla................................................. 1,020,600
Fremont-Kramer............................................. 518,000
Ivanpah Valley............................................. 632,400
Pinto Mountains............................................ 171,700
Ord-Rodman................................................. 253,200
Piute-Eldorado............................................. 453,800
Superior-Cronese........................................... 766,900
Nevada:
Beaver Dam Slope........................................... 87,400
Gold Butte-Pakoon.......................................... 192,300
Mormon Mesa................................................ 427,900
Piute-Eldorado............................................. 516,800
Utah:
Beaver Dam Slope........................................... 74,500
Upper Virgin River......................................... 54,600
Arizona:
Beaver Dam Slope........................................... 42,700
Gold Butte-Pakoon.......................................... 296,000
------------------------------------------------------------------------
Table 3.--Approximate Acreage of Critical Habitat Designated for the Desert Tortoise by Landownership
[Figures are rounded to the nearest hundred]
----------------------------------------------------------------------------------------------------------------
California Nevada Utah Arizona Total
----------------------------------------------------------------------------------------------------------------
Bureau of Land Management...................... 3,327,400 1,085,000 89,400 288,800 4,790,600
Military....................................... 242,200 0 0 0 242,200
National Park Service.......................... 0 103,600 0 43,600 147,200
State.......................................... 132,900 0 27,600 5,700 166,200
Tribal......................................... 0 0 1,600 0 1,600
Private........................................ 1,051,500 35,800 10,500 600 1,098,400
----------------------------------------------------------------
Total........................................ 4,754,000 1,224,400 129,100 338,700 6,446,200
Number of critical habitat units............... 8 4 2 2 *12
----------------------------------------------------------------------------------------------------------------
*Two areas overlap two States, one area overlaps three States.
Developed areas, such as towns, airports, and roads, and dry lakes,
active mining operations, and water bodies will not be affected by the
designation because they will never contain primary constituent
elements. To the extent possible, these areas were deleted from
critical habitat. If these areas were found along the periphery of
CHUs, boundaries were redrawn to physically exclude them from the final
maps. This was not possible for areas imbedded within individual units.
Acreage totals were adjusted where possible to reflect their exclusion.
The majority of desert tortoises and suitable desert tortoise
habitat (i.e., for nesting, sheltering, foraging, dispersal, and gene
flow) are found on BLM land. Much of the private land included in the
critical habitat boundaries results from checkerboard landownership
patterns along railroads. The final designation of critical habitat
includes the areas that contain the best remaining desert tortoise
habitat.
Economic Impacts of the Final Designation
The economic analysis (Schamberger et al. 1993) provides the
Service's conclusions on the potential impacts of the areas selected
for final designation as critical habitat. This analysis served as a
decision document in evaluating economic consequences of the action
leading to the final decision to designate critical habitat.
Consistent with the requirements of section 4 of the Act, the
economic analysis reviews the final economic impact of designating
critical habitat. Only these incremental costs and benefits of
designation may be considered in determining whether to exclude lands
from designation. The economic analysis examined the costs and benefits
of precluding or limiting specific land uses within portions of
critical habitat beyond those restrictions that have already been
implemented either for the benefit of the desert tortoise through the
listing process or for some other reason. Incremental analysis was the
appropriate method to use because the designation of critical habitat
is the only action for which the Service now has decision authority.
The economic costs of listing the species have already been incurred,
and the economic effects of actions taken by other Federal or State
agencies are outside the purview of the Service. The analysis was cast
in a ``with'' critical habitat versus a ``without'' critical habitat
framework and measures the net change in various categories of benefits
and costs when the critical habitat designation was imposed on the
existing baseline. The analysis evaluated national economic, or
efficiency, costs and benefits that reflect changes in social welfare.
The standard measure of those costs and benefits is economic surplus in
the form of economic rents and consumer surplus.
The costs of designating an area as critical habitat are the net
economic costs of precluding or restricting certain land uses over the
period of analysis. Costs are measured as the difference between the
resource's value in its economically best use without critical habitat
and its next best use (opportunity cost) when that use is precluded or
restricted by critical habitat. Economic effects include a mixture of
efficiency and equity measures.
The economic efficiency effects of designation include those that
result in changes in social welfare. Regional economic impacts often
represent transfers among people, groups, and/or geographic regions.
For simplicity, economic efficiency effects are referred to as benefits
and costs, and distributional effects are cited as economic impacts.
National economic efficiency effects may include, but are not
restricted to:
(1) Net change in aggregate value of capital (e.g., lands) due to
critical habitat designation;
(2) Wage earnings foregone from a significant number of employees
permanently displaced through critical habitat designation;
(3) Opportunity costs of foregone or precluded economic activities
(e.g., curtailed or terminated land development); and
(4) Benefits of retaining genetic and biological diversity through
specific species protection measures.
Regional (distributional) economic impacts may include:
(1) Changes in specific county tax revenues due to changes in land
use (e.g., developed real estate versus raw, undeveloped land); and
(2) Regional social costs and benefits from factors such as
transient unemployment, job training, or redistribution of existing
job-mix categories (e.g., transitioning from underemployment in
seasonal range or mine work to full employment in other sectors).
The analysis of effects of critical habitat designation combines
national economic efficiency effects and regional (distributional)
impacts. These include effects on the net returns of local ranch
operations, foregone grazing fees, compensation to allottees for
permanent improvements to land leased from the Federal government for
grazing, changes in total employment, and the portion of grazing fees
that would be shared with local governments.
These consequences are presented in the context of size, relative
to the value added, of the seven counties in which the grazing impacts
would be realized. These consequences illustrate the relative magnitude
of critical habitat designation economic effects.
Economic Baseline
In assessing the economic impacts of the critical habitat
designation, the Service has used the expected economic situation
consistent with restrictions that were in place at the time of
proposing critical habitat. The principal land use restrictions that
were already in place were the BLM's Management Framework Plans,
Resource Management Plans, and habitat management plans; the BLM's
Rangewide Plan; National Park Service land management policies;
military land-use policies; and the listing of the desert tortoise as a
threatened species (section 7 jeopardy standard and section 9
prohibitions).
Industry (e.g., grazing and mining) and recreation-related effects
of designating critical habitat concern primarily those activities not
already affected by earlier decisions. For all activities, however, it
is the incremental effects of avoiding adverse modification of critical
habitat and the marginal changes in ensuing benefits and costs that are
the appropriate measures of the effects of critical habitat
designation.
Desert tortoise management and curtailment of the activities that
threatened the species began when the BLM established the Desert
Tortoise Preserve in 1973 in the Western Mojave Desert (Brussard et al.
1993). The preserve was expanded and formally designated a Research
Natural Area and an Area of Critical Environmental Concern (ACEC) by
1980 (U.S. Fish and Wildlife Service 1993). In 1988, the BLM published
its Rangewide Plan (Spang et al. 1988), which is based on the
categorization of desert tortoise habitat on BLM land into three
categories based on:
(1) Importance of the habitat to maintaining viable populations,
(2) Resolvability of conflicts,
(3) Desert tortoise density, and
(4) Desert tortoise population status (stable, increasing, or
decreasing).
Category 1 lands are the most important to desert tortoises for
survival and recovery, and category 3 lands are the least important.
The Rangewide Plan provides management goals and objectives for each
form of authorized multiple use within each of the categories on
Federal land managed by the BLM, including livestock grazing, mining,
and OHV activities. All CHUs in this final rule minimally include
category 1 and/or 2 habitats. Additionally, CHUs contain some category
3 habitats, uncategorized habitats, and lands managed by other Federal
entities.
The Service has assumed a distinction exists between the effects of
listing the species and the incremental effects of designating critical
habitat. The differences between listing and designation of critical
habitat vary within each CHU based on existing management.
Eight CHUs, or portions thereof, are designated in California
(Chemehuevi, Chuckwalla, Pinto Mountain, Piute-Eldorado (includes
Fenner DWMA), Ivanpah, Fremont-Kramer, Ord-Rodman, and Superior-
Cronese). All are managed primarily by the BLM according to guidance
provided in the California Desert Conservation Area Plan of 1980, as
amended (Desert Plan), and the 1992 California Statewide Desert
Tortoise Management Policy (Tortoise Management Policy). The Desert
Plan defines four classes of land use with differing management goals
and prescriptions. Classes include controlled use (wilderness and areas
recommended for wilderness), limited use, moderate use, and intensive
use (vehicle travel restrictions range from designated routes only in
limited-use areas to no vehicular restrictions in intensive use areas).
The Tortoise Management Policy designates three categories of desert
tortoise habitat in which varying levels of protection are afforded to
the desert tortoise and its habitat. Additional management guidance is
provided in livestock allotment management plans (AMPs), habitat
management plans (HMPs) for desert tortoises and other wildlife
species, the East Mojave National Scenic Area Plan, and management
plans for specific ACECs.
The West Mojave Coordinated Management Plan and the Eastern
Colorado Desert HMP are BLM management plans currently in preparation
that will have an important effect on desert tortoise management in
California. The West Mojave Coordinated Management Plan will be the
basis for a programmatic section 7 consultation for BLM activities in
the western Mojave Desert and may serve as a basis for habitat
conservation plan(s) for local governments in the section 10(a)(1)(B)
permit process. The Eastern Colorado Desert HMP will address all BLM
activities in the Chuckwalla Bench area and will provide a framework
for a programmatic section 7 consultation.
The Chuckwalla CHU is managed by the BLM and the Navy (Chocolate
Mountains Aerial Gunnery Range). Parts of the Superior-Cronese CHU are
managed by the Army (National Training Center at Ft. Irwin) and the
Navy (China Lake Naval Air Weapons Station). The Fremont-Kramer CHU
includes a portion of Edwards Air Force Base. Portions of the Piute-
Eldorado and Ivanpah CHUs in California are within the boundaries of
the East Mojave National Scenic Area, which affords special protection
to the area's natural, scenic, and other values (BLM 1980).
Several programmatic and other biological opinions have resulted in
additional regulation of activities within desert tortoise habitat in
California. Biological opinions have limited grazing of sheep to
category 3 habitats. Programmatic consultations have been completed for
land use plans at the Naval Air Weapons Station and the Rand-Fremont
Valley areas. The Service has also completed a biological opinion
concerning the on-going mission for the Army's National Training Center
at Ft. Irwin. Programmatic consultations also exist that define
standard terms and conditions for mining operations disturbing less
than 10 acres, for non-competitive vehicle races, such as poker runs,
which occur on designated routes in some desert tortoise areas, and for
the four OHV management areas within the western Mojave Desert.
The Service and the BLM are currently developing a programmatic
approach to long-term pipeline maintenance. The Service and the Navy
are also informally consulting on a programmatic consultation for
training activities at the Marine Corps Air Ground Combat Center
(MCAGCC) and within the Chocolate Mountains Aerial Gunnery Range.
In Nevada, the majority of the desert tortoise habitat is managed
by the BLM under the Clark County Management Framework Plan. The
Stateline Resource Area of the Las Vegas District has prepared a draft
Resource Management Plan that proposes designation of ACECs for desert
tortoises; however, this document has not yet been finalized. Livestock
grazing in Nevada is restricted to the period of June 15 to March 1, in
accordance with the BLM's proposed livestock grazing program and the
Service's biological opinion that analyzed that proposal. However, as
of this date, the BLM's decision to implement this seasonal restriction
has been stayed by an Administrative Law Judge. Although Interior Board
of Land Appeals Administrative Law Judges have the authority to review
land use decisions made by Interior agencies, they lack jurisdiction
needed to review biological opinions issued by the Service. In southern
Clark County, portions of the Piute-Eldorado CHU are also managed by
the National Park Service (Lake Mead National Recreation Area).
In 1991, the Piute-Eldorado Valley was established as a Tortoise
Management Area (TMA), as mitigation for the incidental take of desert
tortoises in the Las Vegas Valley, pursuant to section 10(a)(1)(B) of
the Act. The Short-Term Habitat Conservation Plan for the Desert
Tortoise in the Las Vegas Valley, Clark County, Nevada (Regional
Environmental Consultants 1991), which described this mitigation,
provides land-use control measures for this area. These measures
include prohibition of competitive and commercial events, except in
some portions of Eldorado Valley, placing livestock grazing areas into
non-use status, and designation of roads and trails.
The majority of the lands within the Gold Butte-Pakoon and Beaver
Dam Slope CHUs in Arizona are managed by the BLM under the Arizona
Strip Management Plan. This plan designates the Beaver Dam Slope ACEC
and includes management prescriptions designed to minimize impacts to
desert tortoises and their habitat. All desert tortoise habitat in
Arizona is within the area managed by the Virgin River-Pakoon Basin
Habitat Management Plan, a cooperative Sikes Act document written by
the BLM and the Arizona Game and Fish Department. Additionally, desert
tortoise habitat occurring in wilderness areas in Arizona is managed
according to the Paiute-Beaver Dam Wilderness Management Plan and the
Grand Wash Cliffs Wilderness Management Plan. Grazing is administered
according to the Cedar Wash, Highway, Beaver Dam Slope, Mormon Well,
Littlefield Community, Mesquite Community, Mosby-Nay, Pakoon Springs,
Pakoon, Cottonwood, Mud and Cane, and Tassi Allotment Management Plans.
In addition to prescriptions set forth in these allotment management
plans, a Service biological opinion on livestock grazing limited
grazing to the period from June 1 to March 15.
In Utah, the Beaver Dam Slope CHU is primarily managed by the BLM.
In the Castle Cliffs allotment, a 3,040-acre exclosure encompassing the
historic Woodbury-Hardy study area and several other important tortoise
shelter site areas was established to serve as a natural study area to
enhance the tortoise population. However, the exclosure was never
completely operational or effective in eliminating grazing in the area.
The BLM reduced the exclosure to 1,500 acres, where grazing was
completely excluded. The Dixie Resource Area developed a resource
management plan for the area, but the final document was rejected and
the process has been reinitiated. Currently, BLM management in the
Beaver Dam Slope CHU is conducted under the Habitat Management Plan
adopted in 1980.
The BLM and the State of Utah are the primary managers of the Upper
Virgin River CHU. Smaller amounts of habitat are owned by private
entities and by the Paiute Indians. Several consultations have been
initiated regarding grazing, housing development, horse racing, and
energy pipeline developments, for which the Service has prepared draft
biological opinions. Also, Washington County is pursuing development of
a habitat conservation plan for the area encompassing the Upper Virgin
River CHU, and the Service is providing guidance for development of
this plan. The BLM is pursuing land exchanges with the State of Utah
for consolidation of desert tortoise habitat within the Upper Virgin
River CHU for ease of management and for long-term conservation of the
desert tortoise and other desert species. The BLM's Dixie Resource Area
is currently preparing a Resource Management Plan to guide land
management on BLM lands encompassing the Upper Virgin River CHU.
Because of the area's small size and its proximity to an expanding
urban population center, the Service has maintained that any
significant losses of habitat within this area would likely jeopardize
the continued existence of desert tortoises within the Upper Virgin
River Recovery- Unit.
Limitations of the Analysis
The regional economy includes the full economic activity of each
county in which proposed CHUs are located. CHUs generally are located
in remote areas containing a very small fraction of the human
population and total economic activity within a county. The entire
county economy may not be affected by establishing CHUs; thus, the size
of the relevant regional economy may be overstated. Likewise, important
activities in rural areas may appear to be insignificant when compared
to the entire regional economy. For example, mining does not appear to
be an important employer in the seven counties, but may contribute to
the economic stability of small rural communities that offer few other
employment opportunities.
Costs of Critical Habitat Designation
The following sections summarize the results of the Service's
analysis of data and identify the potential costs associated with the
final designation of critical habitat.
Regional Effects to Livestock Industry
Public lands in the four States in 1990 furnished nearly 3,000
operators with cattle grazing permits that provided more than 3 million
AUMs (Table 4). The designation of critical habitat may partially or
totally affect 51 cattle permits that provided 59,000 AUMs. Nearly all
sheep grazing was eliminated from most CHUs prior to critical habitat
designation; therefore, sheep grazing was not an activity examined in
the economic analysis. The effect of CHU restrictions on the
availability of Federal land for grazing varies widely among the
States, from 0.6 percent of cattle AUMs in Nevada to 9.6 percent of
cattle AUMs in California. Across the four States, CHUs may affect 1.7
percent of cattle and sheep grazing AUMs (note these effects apply to
the States rather than the seven-county region, for which comparable
data were not available).
The economic consequences of reduced cattle grazing on Federal
lands to establish the proposed CHUs includes three effects. Ranch
profits in the seven counties are estimated to fall by $4,470,000. This
amount is the estimated permanent decrease in ranch profits,
capitalized at 10 percent for a 50 year period, in accordance with the
methodology of Rice et al. (1978). The Federal government will
compensate allottees with a one-time payment estimated at $376,000 for
the loss of permanent improvements to grazing lands (pending BLM
administrative decisions of partially affected allotments).
Discontinuing grazing leases will result in an annual reduction of
$170,000 in collected grazing fees that are divided among range
improvements, the U.S. Treasury, and local governments. The $170,000 is
not a ``net'' annual reduction in that it does not include the reduced
costs of grazing program administration.
Table 4.--Cattle Grazing Affected by Critical Habitat Units
------------------------------------------------------------------------
Grazing
State permits on AUMs on AUMs Percent
CHUs CHUsa Statewidea
------------------------------------------------------------------------
Arizona............... 12 10,580 514,674 2.1
California............ 13 28,240 295,676 9.6
Nevada................ 17 11,790 1,821,875 0.6
Utah.................. 9 8,870 770,143 1.2
-------------------------------------------------
Total............... 51 59,480 3,402,368 1.7
------------------------------------------------------------------------
aIncludes cattle and sheep.
Source: U.S. Bureau of Land Management 1991. U.S. Bureau of Land
Management, district offices, personal communications, 1993.
Regional Effects of Mining Industry
The Service does not anticipate disruption to current mining
operations from designation of critical habitat. The Service notes that
active or previously disturbed mine sites typically do not provide
suitable habitat for desert tortoises. Those areas, such as currently
operating mine sites, lacking primary constituent elements are not
considered critical habitat.
Expansion of mining sites on public land would require section 7
consultation to determine whether the expansion would likely destroy or
adversely modify critical habitat. In cases where habitat is likely to
be adversely modified, the Service may recommend reasonable and prudent
alternatives, including relocation of roads or recovery of disturbed
mine sites. Mining claims provide rights to explore and develop mineral
deposits but there is no assurance that deposits can be developed
economically.
Claims may never be developed if market conditions do not warrant
or if reserves prove insignificant. The uncertainty involved in mining
claims and mineral reserves precludes accurate estimation of economic
effects from designation of critical habitat.
Reductions in County Revenues
Potential revenue loss to the seven counties examined in the
economic analysis due to reduced use of existing Federal leases and/or
permits is not precisely calculable due to several factors, including
(but not limited to):
(1) The aggregate number of leases for grazing that have been
issued under section 15 of the Taylor Grazing Act of 1934, and from
which a 50 percent revenue-sharing basis exists, as opposed to section
3 permits that carry a basis of 12.5 percent revenue sharing with the
affected county;
(2) The final administrative decision by the BLM to partly or
completely terminate certain permits/leases for grazing predicated upon
their location, existing ingress/egress to other lands, etc.; and
(3) The percentage mixture of the above two types of permits issued
by the BLM and its attendant fee structure.
Although it is known that certain grazing fees in each of the
counties will be reduced and/or foregone, it is not possible to
estimate accurately the dollar impact on the specific county level
until the BLM has concluded its administrative decision process. The
effect to the seven counties is expected to total approximately $21,000
(the minimum 12.5 percent local share of the $170,000 grazing fees
collected on allotments affected by critical habitat designation).
Net Economic Effect to U.S. Treasury
The U.S. Treasury's portion of grazing fees collected by the BLM in
fiscal year 1989 was insufficient to cover the direct costs of
administering grazing programs in eight BLM districts in the hot
deserts of the southwest. According to a 1991 report from the U.S.
General Accounting Office (GAO), the BLM collected grazing fees
totaling $3.97 million from the eight BLM desert districts. Half of
this amount ($1.98 million) was returned to the grazing programs for
range improvements, the U.S. Treasury received a maximum 37.5 percent
($1.49 million) of the fees, and local governments received a minimum
of 12.5 percent ($496,000). The U.S. Treasury thus received no more
than $1.49 million, 53 percent of the $2.79 million expense for grazing
management in the eight BLM districts. According to GAO:
``Critics of livestock grazing could argue that the costs of
managing livestock grazing * * * exceeded the funds available to the
Treasury to offset these management costs. Proponents could counter
that * * * grazing fees more than offset * * * management costs and
provided funds for State and county projects as well as for range
improvements.
No matter how costs are analyzed, the resources currently being
spent on range management * * * are insufficient to perform all
essential tasks. [I]nsufficient funding and staffing have been
instrumental in the BLM's inability to restore degraded riparian
areas, deal with overstocked grazing allotments, and detect
livestock grazing trespass. Consistent with our findings, the BLM
has concluded that its current budget is inadequate to perform all
needed land management tasks throughout the public lands'' (U.S.
General Accounting Office 1991).
Based on the GAO's findings, the U.S. Treasury may realize a net
financial gain from discontinuing or reducing Federal grazing programs
in the hot desert (assuming administrative costs were reduced
accordingly and not reassigned). Although the potential savings to the
U.S. Treasury was not evaluated in the Draft Economic Analysis, it is
reasonable to assume that discontinuation of grazing on the public
lands designated as critical habitat for the desert tortoise may
contribute to those savings.
Employment Effects
Designation of critical habitat for the desert tortoise is expected
to result in the loss of no more than 425 jobs in the seven-county
region (Table 5). This estimate includes 340 jobs lost directly in
ranching and 85 jobs lost indirectly in other industries. This job
loss, due to the reduction of Federal grazing permits in CHUs, is an
insignificant proportion of the 1,535,100 workers employed in the seven
counties in 1990. Specific employment losses cannot be estimated for
each county until the BLM decides on how to handle partially affected
grazing allotments. This total job loss will be reduced if there is
replacement of affected permits by permits on unaffected lands (Federal
or private) or if those laborers transfer to jobs on unaffected ranch
lands. These estimated employment losses will not be permanent for most
laborers, as it is anticipated that over 85 percent will be reemployed
within 2 years.
Critical habitat designation is not expected to result in lost jobs
in the mining sector because current mining operations will not be
affected by designation. The impact on future employment in the mining
sector cannot be calculated reliably because of the uncertainty of
future expansion and development of claims.
Table 5.--Regional Employment Losses From Critical Habitat Designation Compared With Total Regional Employment
----------------------------------------------------------------------------------------------------------------
Direct ranching Total
State employment loss Employment employment loss Total
multiplier employees
----------------------------------------------------------------------------------------------------------------
Arizona............................................. 35-60 1.21 40-75 36,600
California.......................................... 40-80 1.25 50-100 1,031,900
Nevada.............................................. 45-120 1.14 50-135 446,800
Utah................................................ 40-80 1.44 55-115 19,800
-----------------------------------------------------------
Total......................................... 160-340 ........... 195-425 1,535,100
----------------------------------------------------------------------------------------------------------------
Source: Estimated direct employment losses supplied by BLM offices in affected areas. Employment multiplier
estimated by IMPLAN.
Summary of Potential Impacts
The economic consequences of designating critical habitat includes
reduced ranch profits in the seven counties of $4,470,000 (this amount
is the estimated permanent decrease in ranch profits capitalized at 10
percent for a 50-year period, in accordance with the methodology of
Rice et al. (1978)). The Federal government will compensate allottees
with a one-time payment estimated at $376,000 for the loss of permanent
improvements to grazing lands (pending BLM administrative decisions of
partially affected allotments). Discontinuing grazing will result in an
annual reduction of $170,000 in collected grazing fees that are divided
among range improvements, the U.S. Treasury, and local governments.
Critical habitat designation should result in the loss of fewer
than 425 total jobs in the seven counties. These include 340 direct
ranching jobs and 85 indirect jobs in other industries. The estimated
employment loss will not be permanent because over 85 percent of
laborers will be reemployed within 2 years.
Benefits of Critical Habitat Designation
Conservation of the desert tortoise and its habitat through
designation of critical habitat may result in a wide range of benefits.
These benefits include preservation of recreation and existence values
that will increase the benefits for most affected activities. Scenic
beauty contributes to the quality of desert recreational experiences.
Many of the CHUs are adjacent to or within Wilderness Study Areas or in
designated Wilderness Areas. Habitat conservation will enhance the
wilderness values of these adjacent or contiguous areas. Habitat
preservation also provides for improved water quality, scenic and air
quality, biological diversity, and other environmental benefits.
Many of the resource services provided by critical habitat are not
marketed. The lack of market prices makes it difficult to value them in
dollar terms, as compared to some cost impacts, such as impacts to
livestock grazing. As a result, this analysis currently focuses on the
cost impacts, primarily related to livestock grazing. No comprehensive
estimate of the benefits of designating critical habitat is feasible
with available data. Rather, the analysis provides a discussion of the
kinds of benefits that are expected to ensue, with empirical data and
examples as available. Existence values represent an additional
category of non-use benefit, albeit one that remains difficult to
measure. Furthermore, society places preservation benefits on
endangered species for the option of future recreational use, with the
knowledge that the desert tortoise's natural ecosystem exists and is
protected, and the satisfaction from its bequest to future generations.
Many of these benefits are expected to increase in relative value over
time. As human activities continue to reduce desert ecosystems, the
remaining areas will become less available and more valuable. Habitat
protection for the desert tortoise clearly benefits other species, as
well as the human use and enjoyment of these species.
Dividing the sum of benefits between the various parts by which
gains are generated is a delicate task. If preservation of a species is
accomplished wholly through designating critical habitat, then the full
value of benefits could be attributed to that action. Typically,
however, preservation is attained through a set of interactive
management actions, each of which is essential to success and no one of
which can be singled out as the sole means by which a species is
preserved (Walsh 1992). Given the information at hand, and without
better understanding the network of consequences from management
alternatives, it is not possible to disaggregate the sum of benefits to
identify that portion directly attributable to critical habitat
designation.
Biodiversity Benefits
Designation of critical habitat for the desert tortoise will
contribute to the protection of the biotic diversity of the arid
Southwest. The tortoise's habitat includes components that make it
useful to a variety of other desert species whose existence is enhanced
through retention of original characteristics of their habitat.
Modification or elimination of activities that would adversely modify
the natural ecology of the region will conserve the desert tortoise, as
well as other animal and plant species.
Recreational Use Benefits
Direct, non-consumptive recreational use of the desert tortoise
(i.e., tortoise watching) occurs, although it is limited by the desert
tortoise's burrowing habits and its relatively dispersed populations.
Some recreational activities may be relocated or restricted due to
critical habitat designation, particularly OHV use.
Intrinsic Values
Users and non-users of natural resources place value on knowing
that resources will exist in the future. Benefits, which may be
substantial, reside in the form of ensured future existence and
availability for use and in the ability to preserve the resource for
future generations. By designating critical habitat for the desert
tortoise, land managers will assure the retention of option and bequest
values, potentially providing benefits far outside the designated
habitat region.
Long-Term Effects of Critical Habitat Designation
The analysis of economic impacts of critical habitat designation
was based primarily on data that are both current and calculable. Long-
term economic impacts, especially on a county-level basis, explicitly
have not been addressed. For example, although there may be a very low
level of temporary unemployment (less than 0.1 percent) of those
laborers on any given Federal allottee's lease/permit, it is normally
anticipated that those workers will be reemployed within 2 years or be
shifted to other private ranch lands in the short-term.
A given county's receipt of grazing fees will be based on final
administrative decisions by the surface managing agencies on the number
of issued/reissued permits and their percentage revenue sharing base
(cited in Schamberger et al. 1993).
Mining may be impacted over the long term, but only to the extent
that surface expansion is limited explicitly to avoid adverse
modification to critical habitat. If such limitations do occur, they
would also be predicated on governmental administrative decision at
that time (by the BLM, military, tribal councils), but reasonably would
be expected to be minimal both in percent and dollar-level impacts.
Available Conservation Measures
The purpose of the Act, as stated in section 2(b), is to provide a
means to conserve the ecosystems upon which endangered and threatened
species depend and to provide a program for the conservation of listed
species. Section 2(c)(1) of the Act declares that ``* * * all Federal
departments and agencies shall seek to conserve endangered and
threatened species and shall utilize their authorities in furtherance
of the purposes of this Act.''
The Act mandates the conservation of listed species through
different mechanisms, such as: Section 7 (requiring Federal agencies to
further the purposes of the Act by carrying out conservation programs
and insuring that Federal actions will not likely jeopardize the
continued existence of the listed species or result in the destruction
or adverse modification of critical habitat); section 9 (prohibition of
taking of listed species); section 10 (wildlife research permits and
habitat conservation planning on non-Federal lands); section 6
(cooperative State and Federal grants); land acquisition; and research.
Other Federal laws also require conservation of endangered and
threatened species, such as the Federal Land Policy Management Act,
National Environmental Policy Act, and various other State and Federal
laws and regulations.
The Service's intent in designating critical habitat is to provide
habitat that contains primary constituent elements in sufficient
quantities to maintain viable populations of desert tortoises within
the six recovery units. Critical habitat designation will help reduce
the risk associated with the near-term reduction in desert tortoise
numbers and cumulative loss of habitat anticipated from on-going
management plans. Critical habitat offers additional protection through
section 7, but it does not replace the management recommendations
provided by the Draft Recovery Plan. Designation of critical habitat
will, however, provide regulatory protection and help retain options
until long-term conservation plans are accepted and fully implemented.
Other Protections
The States of Nevada, California, Arizona, and Utah have
established laws that provide varying levels of protection for
individual desert tortoises. The State of Nevada affords limited
protection to the desert tortoise, having established it as a protected
reptile under section 501.110.1(d) of the Nevada Revised Statutes,
protected and rare outside of the urban areas of Clark County (Las
Vegas) under section 503.080.2 of the Nevada Administrative Code, and
unlawful to transport across State lines without the written consent of
the Nevada Department of Wildlife. Nevada does not have any laws that
regulate the degradation of desert tortoise habitat.
The California Fish and Game Commission listed the desert tortoise
as a State threatened species on June 22, 1989, amending the California
Code of Regulations, section 670.5(b)(4) of title 14. California has
also designated the desert tortoise as its official State reptile.
The Arizona Game and Fish Commission extended full protection from
take to the desert tortoise, effective January 1, 1988, through
Commission Order 43: Reptiles. Also prohibited is the sale of desert
tortoises and their importation to the State, as well as the release of
captive tortoises into the wild. There is no State authority in Arizona
to regulate the modification of desert tortoise habitat.
In Utah, the desert tortoise is considered a ``prohibited
reptile,'' protecting it from collection, importation, transportation,
possession, sale, transfer, or release because it poses unacceptable
disease, ecological, environmental, or human health or safety risks. No
State regulations exist to stop the loss or degradation of desert
tortoise habitat through land development or other actions (U.S. Fish
and Wildlife Service 1990).
Recovery Planning and Section 7 Consultation
Recovery planning under section 4(f) of the Act is the ``umbrella''
that eventually guides all of the Act's activities and promotes a
species' conservation and eventual delisting. Because critical habitat
designation was based on recommendations provided in the Draft Recovery
Plan, final critical habitat will be incorporated as part of the final
recovery plan for the desert tortoise. The Service has worked closely
with the Recovery Team and other efforts to ensure consistency and will
reevaluate the need for critical habitat after completion and
implementation of the recovery plan or at any time that new information
indicates that changes may be warranted. The Service may also reassess
critical habitat designation if other land management plans or
conservation strategies, which may reduce the need for the additional
protection provided by critical habitat designation, are developed and
fully implemented.
Although critical habitat is not intended as a management or
conservation plan, association with the Draft Recovery Plan leaves the
perception that critical habitat is a form of that plan. The Draft
Recovery Plan, critical habitat, and other conservation processes are
working with the same land base containing the same specific locations
of desert tortoise populations within recovery units; it is therefore
inevitable that these processes overlap. Critical habitat is based upon
the recommendations of the Draft Recovery Plan because it lays out a
framework for identifying and evaluating habitat that is founded on
scientific principles. Designation of critical habitat does not offer
specific direction for managing desert tortoise habitat. That type of
direction, as well as any change in direction, will come through
administration of other facets of the Act (e.g., section 7, section 10,
and recovery planning) or through development of land management plans
addressing the desert tortoise.
The final DWMA boundaries will be determined by land management
agencies, in consultation with the Service, through a planning process
that is coordinated with local government and interested members of the
public. The Service intends that critical habitat for the Mojave desert
tortoise population conform to the DWMA boundaries determined through
the recovery planning and implementation process. Because the agency
planning process for determining the DWMA boundaries will not be
completed until after critical habitat for the Mojave desert tortoise
population is initially designated, adjustments to critical habitat may
need to be made in subsequent rulemaking documents to make critical
habitat correspond to the DWMAs. As soon as the agency planning process
for delineating DWMA boundaries is completed, the Service will consider
publishing a proposed rule to effect appropriate adjustments in the
critical habitat boundaries for the affected recovery unit(s).
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to destroy
or adversely modify critical habitat. This Federal responsibility
accompanies, and is in addition to, the requirement in section 7(a)(2)
of the Act that Federal agencies ensure their actions do not jeopardize
the continued existence of any listed species. Regulations implementing
this interagency cooperation provision of the Act are found at 50 CFR
part 402. As required by 50 CFR 402.14, a Federal agency must consult
with the Service if it determines an action may affect a listed species
or critical habitat. Thus, the requirement to consider adverse
modification of critical habitat is an incremental section 7
consideration above and beyond section 7 review to evaluate jeopardy
and incidental take of the species.
Jeopardy is defined at 50 CFR 402.02 as any action that would be
expected to appreciably reduce the likelihood of both the survival and
recovery of a species. Destruction or adverse modification of critical
habitat is defined at 50 CFR 402.02 as a direct or indirect alteration
that appreciably diminishes the value of critical habitat for both the
survival and recovery of a listed species. The regulations also clearly
state that such alterations include, but are not limited to,
alterations adversely modifying any of those physical or biological
features that were the basis for determining the habitat to be
critical.
Survival and recovery, mentioned in both the definition of adverse
modification and jeopardy, are directly related. Survival may be viewed
as a linear continuum between recovery and extinction of the species.
The closer one is to recovery, the greater the certainty in the
species' continued survival. The terms ``survival and recovery'' are
thus related by the degree of certainty that the species will persist
over a given period of time. Survival relates to viability. Factors
that influence a species' viability include population numbers,
distribution throughout the range, stochasticity, expected duration,
and reproductive success. A species may be considered recovered when
there is a high degree of certainty for the species' continued
viability.
The Act's definition of critical habitat indicates that the purpose
of critical habitat is to contribute to a species' conservation, which
by definition equates to recovery. Section 7 prohibitions against the
destruction or adverse modification of critical habitat apply to
actions that would impair survival and recovery of the listed species,
thus providing a regulatory means of ensuring that Federal actions
within critical habitat are considered in relation to the goals and
recommendations of a recovery plan. As a result of the link between
critical habitat and recovery, the prohibition against destruction or
adverse modification of the critical habitat should provide for the
protection of the critical habitat's ability to contribute fully to a
species' recovery. Thus, the adverse modification standard may be
reached closer to the recovery end of the survival continuum, whereas
the jeopardy standard traditionally has been applied nearer to the
extinction end of the continuum.
Basis for Analysis
Designation of critical habitat focuses on the primary constituent
elements within the defined units and their contribution to the
species' recovery, based on consideration of the species' biological
needs and factors that contribute to recovery (e.g., distribution,
numbers, reproduction, and viability). The evaluation of actions that
may affect critical habitat for the desert tortoise should consider the
effects of the action on any of the factors that were the basis for
determining the habitat to be critical, including the primary
constituent elements of nesting, foraging, sheltering, dispersal, and/
or gene flow, as well as the contribution of the area to recovery. The
Service will focus on a proposed action's effect on the eventual
recovery of the tortoise in a CHU (e.g., the type of activities that
led to the tortoise's listing, such as habitat loss, degradation, and
fragmentation). The Service would issue an adverse modification opinion
if it determined that a proposed action was likely to preclude recovery
of the tortoise in a particular unit.
The range of the desert tortoise has been divided into six recovery
units in the Draft Recovery Plan. These areas are based on genetic,
morphological, ecological, and physiological differences among the
desert tortoises. The designated CHUs are intended to provide for
viable populations of desert tortoises representing this variation in
traits. The basis for an adverse modification opinion should follow the
recommendations in the recovery plan for maintaining viable populations
and variation throughout the range. Should the Recovery Team redefine
these parameters in the final recovery plan, then the basis for
analysis under section 7 will follow that basis.
For a wide-ranging species such as the desert tortoise, where
multiple CHUs are designated, each unit has both a local role and a
rangewide role in contributing to the conservation of the species. The
loss of a single unit may not jeopardize the continued existence of the
species but may significantly reduce the ability of critical habitat to
contribute to recovery.
Present conditions vary throughout the range of the desert
tortoise, with the result that some areas may be less able to sustain
continuing impacts than others at any given time. The level of
disturbance a CHU could withstand and still fulfill its intended
purpose is variable throughout the tortoise's range and will need to be
reviewed in the context of its current status, condition, and location.
Each project will need review as to its impacts at all levels. When
determining whether any particular action would appreciably diminish
the value of the habitat for the survival and recovery of the tortoise,
the baseline condition and expected role for the individual unit and
those within the same recovery unit must be considered. Among the
factors to be considered are the extent of the proposed action, the
present condition of the habitat (e.g., percent of the area containing
the primary constituent elements, degree of fragmentation, size of the
unit), the existing density of desert tortoises in the unit, the
expected time to regenerate sufficient habitat to support an effective
population in a particular area, consistency of the action with the
intent of the recovery plan, geographic consideration, and local and
regional problems. The analysis should also consider the effect of the
action on critical habitat from actions planned outside the designated
area. Analysis of impacts to individual units must consider the effects
to the local area, the recovery unit in which it resides, and the
overall range of the listed species.
Consultation Process
Section 7 consultation for critical habitat will focus on the
effects of actions on tortoise habitat whether or not it is currently
occupied. The presence or absence of tortoises will not factor into the
determination of actions that trigger section 7. Any action that may
affect critical habitat will trigger section 7 consultation.
The requirement to consider adverse modification of critical
habitat is an incremental section 7 consideration above and beyond
section 7 review necessary to evaluate jeopardy and incidental take. As
required by 50 CFR 402.14, a Federal agency must consult with the
Service if it determines an action may affect a listed species or its
critical habitat. Federal agencies are responsible for determining
whether or not to consult with the Service and should consider a number
of factors when determining if a proposed action may affect critical
habitat. To the extent possible, agencies should consult on a
programmatic basis.
The Service will consider the effect of the proposed action on the
primary constituent elements along with the reasons why that particular
area was determined to be critical habitat. The trigger to initiate
section 7 consultation (under adverse modification) is any action that
may affect any of the five primary constituent elements of critical
habitat or reduce the potential of critical habitat to develop these
elements--this is independent from any action that would affect known
individuals. The evaluation should also take into consideration what
happens outside of critical habitat because such projects may also
impact habitat within critical habitat. It should also consider what
effects the action may have on other adjacent CHUs, the recovery unit,
and the overall range of the desert tortoise.
Examples of Proposed Actions
Section 4(b)(8) of the Act requires, for any final regulation that
designates critical habitat, a brief description and evaluation of
those activities (public or private) that may adversely modify such
habitat or may be affected by such designation. Regulations found at 50
CFR 402.02 define destruction or adverse modification of critical
habitat as a direct or indirect alteration that appreciably diminishes
the value of critical habitat for both the survival and recovery of a
listed species. Such alterations include, but are not limited to,
alterations adversely modifying any of those physical or biological
features that were the basis for determining the habitat to be
critical.
Activities that disturb or remove the primary constituent elements
within designated CHUs might adversely modify the tortoise's critical
habitat. These activities may include actions that would reduce the
area of a recovery unit below that which can sustain a viable
population or provide for movements, dispersal, and gene flow; reduce
the quantity and quality of forage species, either directly or through
soil modifications, thereby affecting the tortoise's nutritional
requirements; reduce the suitability of substrates for burrowing,
nesting, and overwintering; reduce the number and availability of
burrow sites, caliche caves, and other shelter sites; appreciably
modify the function and/or availability of vegetation to provide
shelter from temperature extremes and predators; and increase the
potential for future habitat disturbance and human-caused mortality.
A number of Federal agencies or departments fund, authorize, or
carry out actions that affect lands that the Service designates as
critical habitat. Among these agencies are the BLM, Department of
Defense (DOD), Bureau of Mines, Corps of Engineers, Bureau of
Reclamation, Bureau of Indian Affairs (BIA), Federal Energy Regulatory
Commission, National Park Service, Federal Highway Administration, and
Department of Housing and Urban Development. Federal agencies and the
Service are currently consulting on numerous activities proposed within
the range of the desert tortoise. These activities include Federal land
management plans; Bureau livestock grazing operations; road, trail, and
utility construction and maintenance; mining plans of operation; land
sales, leases, and exchanges; Federal housing loans; BLM recreation and
public purpose leases; permits for OHV activities; military operations;
sand and gravel operations; rights-of-way; landfills; and a number of
smaller actions. The economic analysis provides more details on
specific projects affected by critical habitat designation.
The Service expects that proposed actions that are inconsistent
with land management recommendations for DWMA's in the Draft Recovery
Plan would likely be considered to adversely modify critical habitat.
Proposed actions that are consistent with the recommendations within
the Draft Recovery Plan would not be likely to result in destruction or
adverse modification of critical habitat.
Areas designated as critical habitat support a number of existing
and proposed commercial and non-commercial activities. Commercial
activities that may affect desert tortoise critical habitat include,
but are not limited to, livestock grazing, sand and gravel extraction,
mining, OHV activities, military operations, landfills, rights-of-way,
and utility corridors. Commercial activities not likely to destroy or
adversely modify critical habitat include various site-specific
activities such as scenic tours. Conducting desert tortoise surveys
would not likely destroy or adversely modify critical habitat. Non-
commercial activities are largely associated with recreation and are
not considered likely to adversely affect critical habitat, provided
they do not involve use of vehicles off of designated roads. Such
activities include hiking, camping, hunting, and various activities
associated with nature appreciation. In certain CHUs where more
intensive management is needed (e.g., the Upper Virgin River CHU), the
effects of recreational activities will be evaluated on a case-by-case
basis.
Some activities could be considered to be of benefit to desert
tortoise habitat and, therefore, would also not be expected to destroy
or adversely modify critical habitat. Examples of activities that could
be of benefit to critical habitat include protective measures such as
some forms of fire suppression and restoration of disturbed areas.
Further research may support or refute any potential benefits from such
actions. At this time, they will be evaluated on a case-by-case basis.
In general, activities that do not remove or degrade constituent
elements of habitat for desert tortoises are not likely to destroy or
adversely modify critical habitat. Each proposed action would be
examined pursuant to section 7 of the Act in relation to its site-
specific impacts. Thus, proposed actions may or may not destroy or
adversely modify critical habitat, depending on the type and extent of
the action and the pre-project condition of the area in relation to
desert tortoise habitat needs. The involved Federal agencies can assist
the Service in its evaluation of proposed actions by providing detailed
information on the habitat configuration of a project area, habitat
conditions of surrounding areas, and information on known locations of
desert tortoises.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of the desert tortoise. Lands outside of critical habitat
are important for providing nesting, sheltering, foraging, gene flow,
and dispersal habitat for desert tortoises. Federal activities outside
of critical habitat are still subject to review under section 7 if they
may affect the desert tortoise. The Service expects that management
activities outside of critical habitat on Federal lands would be
managed as recommended by a final recovery plan, Federal land
management plans, or other valid plans.
Reasonable and Prudent Alternatives
In cases where it is concluded that an action would likely result
in the destruction or adverse modification of critical habitat, to the
extent possible, the Service is required to provide reasonable and
prudent alternatives to the proposed action in its biological opinion.
By definition, reasonable and prudent alternatives allow the intended
purpose of the proposed action to go forward and remove the conditions
that would adversely modify critical habitat--alternatives may vary
according to local conditions, project size, or other factors. The
Service recommends that the agencies initiate discussions early enough
in the planning process to preserve a greater number of options to
reduce impacts.
Under this scenario, if adverse modification was anticipated,
examples of possible reasonable and prudent alternatives that may be
provided in a biological opinion include:
(1) Relocating the planned action to another location,
(2) Modifying the action to minimize fragmentation, and/or
(3) Modifying the action to implement land management practices
that are known to be compatible with maintaining primary constituent
elements for the desert tortoise.
For some actions, the Service may propose minor modifications to
the project design that may avoid adverse modification of critical
habitat. In the case of a proposed upgrade of a powerline right-of-way
corridor, for example, the Service may recommend that the corridor be
expanded on one side of the existing corridor versus the other side to
avoid impacts to habitat where the primary constituent elements are of
higher quality. For projects that may result in more severe impacts,
substantial project changes may be necessary. The Service would propose
reasonable and prudent alternatives to the agency's proposed action.
Reasonable and prudent alternatives, by definition, would allow the
intended purpose of the project to go forward without adversely
modifying critical habitat.
No reasonable and prudent alternatives may be available for some
proposed actions. For example, due to the size of a unit or high levels
of existing fragmentation, no level of habitat disturbance may be
possible without resulting in the destruction or adverse modification
of critical habitat. In these situations, the Service would issue an
adverse modification biological opinion with no reasonable and prudent
alternatives. The Service recommends that agencies initiate discussions
at the earliest opportunity to help avoid this type of situation.
Research on desert tortoises and their habitat may negatively
affect critical habitat. Wherever possible, research should be
conducted outside of CHUs, coordinated throughout the listed range of
the tortoise, and based upon an approved long-term strategy.
Conservation Measures on Non-Federal Lands
State, private, and Tribal lands have been included within the
designation of critical habitat. Critical habitat designation will not
affect non-Federal lands except for actions that are authorized,
funded, or carried out by a Federal agency. Actions on State and
private lands will continue to be subject to section 9 of the Act,
requiring an incidental take permit pursuant to section 10(a)(1)(B) of
the Act for any actions that may result in take of desert tortoises.
This provision also will apply to actions on Tribal lands without a
Federal nexus. Those with a Federal nexus will be subject to section 7
consultation under the Act.
Section 9 of the Act prohibits intentional and non-intentional
``take'' of listed species and applies to all landowners regardless of
whether or not their lands are within critical habitat. The term
``take,'' as defined by the Act, means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct. ``Harass'' is defined as an intentional or
negligent act or omission that creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly disrupt
normal behavioral patterns, which includes breeding, feeding, or
sheltering. ``Harm'' in the definition of ``take'' means any action,
including habitat modification, which actually kills or injures
wildlife. Such act may include significant habitat modification or
degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including
breeding, feeding, or sheltering (50 CFR part 17).
Section 10(a)(1)(B) authorizes the Service to issue permits for the
taking of listed species incidental to otherwise lawful activities,
such as housing development. Incidental take permit applications must
be supported by a habitat conservation plan (HCP) that identifies
conservation measures that the permittee agrees to implement to
conserve the species. A key element of the Service's review of an HCP
is a determination of the plan's effect upon the long-term conservation
of the species. An HCP would be approved and a section 10(a)(1)(B)
permit issued if it would minimize and mitigate the impacts of the
taking and would not appreciably reduce the likelihood of survival and
recovery of that species in the wild.
Due to limited Federal involvement, the Service expects that few,
if any, formal section 7 consultations would be initiated for State
lands that are included in critical habitat. The States are subject to
the ``take'' prohibitions under section 9 of the Act, however, and may
enter into the section 10 HCP process where appropriate.
Desert tortoises occurring on lands outside critical habitat
boundaries are still subject to section 9 prohibitions. The Service
envisions that the role of desert tortoise habitat in the conservation
of the species will be addressed through section 7, the HCP process,
the recovery planning process, and other appropriate State and Federal
laws. On these lands, it is expected that recovery goals will be
achieved through the use of other conservation mechanisms available to
the Service and other landowners (e.g., land exchanges, conservation
and development easements).
Summary of Comments and Recommendations
In the August 30, 1993, proposed rule and associated notifications,
the Service requested all interested parties to submit factual reports
or information that might contribute to the development of this final
rule. The public comment period was open from August 30, 1993, to
October 29, 1993. During that period, the Service conducted three
public hearings on this issue at the following locations: Riverside,
California, on October 6, 1993; Las Vegas, Nevada, on October 12, 1993;
and St. George, Utah, on October 14, 1993. The Service accepted
testimony from the public from 1 to 4 p.m. and from 6 to 8 p.m on each
of those days. The Service announced the dates, times, and locations of
the public hearings in the August 30, 1993, proposed rule (58 FR
45748). Appropriate State agencies, county governments, Federal
agencies, scientific organizations, and other interested parties were
contacted and asked to comment. In addition, the Service published
notices in the Kingman Daily Miner, Las Vegas Review Journal, Las Vegas
Sun, Barstow Desert Dispatch, The Sun, and the Press Enterprise on
September 23, 1993, and in the Daily Spectrum on September 16, 1993,
announcing the publication of the proposed rule and the dates, times,
and locations of the public hearings.
During the 60-day comment period, the Service received
approximately 270 written comments. In addition, 147 people testified
at the three public hearings. The Service received comments from the
BLM, the Bureau of Mines, other Federal agencies, military
installations, State and county agencies, town boards, environmental
organizations, the mining industry, recreational enthusiasts, and the
ranching industry. Comments are part of the administrative record and
are available for public review. Issues raised during the public
comment period announced in the August 30, 1993, proposal, whether
written or oral, are discussed below.
Issue 1: One respondent requested that the Service adjust the
boundaries of CHUs to reflect the boundaries proposed for the East
Mojave National Park, as depicted in Senate Bill 21.
Service Response: The Service cannot assume that the legislation
for the East Mojave National Park will pass or what form it will take.
The boundaries proposed for the East Mojave National Park in Senate
Bill 21 reflect the balancing of a variety of concerns, both biotic and
abiotic, and should not be expected to resemble boundaries reflecting
habitat critical to the recovery of a single species. Should the East
Mojave National Park be established, the Service will reevaluate the
designation of critical habitat, if appropriate.
Issue 2: The Service received several comments regarding the
presence of unsuitable habitat within proposed CHUs. Examples of areas
already developed that were included in the proposal were golf courses,
buildings, towns, and existing mining operations. Many stated that
these areas should not be included even for the ease of writing legal
descriptions.
Service Response: The Service identified large contiguous blocks of
tortoise habitat containing the primary constituent elements that
support nesting, foraging, sheltering, dispersal, and/or gene flow,
primarily on Federal lands. To the extent possible, the Service
adjusted boundaries to exclude peripheral areas that do not support
primary constituent elements. However, it was not possible to exclude
all areas of non-habitat via boundary revisions. In some cases, CHUs
contain small towns, farms, or human-made structures. These areas,
although physically located within the boundaries of critical habitat,
are not included in critical habitat designation because they do not
contain any of the primary constituent elements of desert tortoise
habitat. Areas not currently containing all of the essential features,
but with the capability to do so in the future, may still be needed for
the long-term conservation of the species, particularly in certain
portions of the range.
Issue 3: Some respondents stated that the Service should use
natural landmarks for critical habitat boundaries and legal
descriptions rather than section lines. Use of section lines instead of
natural or human-made boundaries will make enforcement difficult, if
not impossible. One letter stated that, in a majority of cases
(according to the BLM), documented sheep trespasses during the 1993
grazing season occurred where there were ambiguous boundary lines.
Service Response: In designating critical habitat, the Service is
required to legally define boundaries. In this effort, the Service has
primarily used section lines. The Service also used major roads to
legally define some of the CHUs.
Issue 4: Many commenters suggested removing specific areas from the
proposal. Such suggestions typically reflected concerns over inclusion
of private lands in the proposal or were based on potentially
conflicting uses, especially mining areas. Some letters provided
additional biological information to support site-specific deletions
from critical habitat.
Service Response: The Service has reviewed the individual requests
and determined whether the critical habitat boundaries should be
modified to avoid non-tortoise habitat. Where possible, considering
restraints of the map scale with which the Service was working,
boundary lines have been modified. Areas suggested for deletion on the
basis of perceived land-use conflicts were deleted if they did not meet
the criteria for inclusion or did not provide important benefits to the
species. Areas suggested for deletion because of poor habitat were re-
examined in terms of value to tortoises. In some key areas, habitat
currently in poor condition was retained because of its important
location and high potential for contribution to recovery.
Issue 5: A number of commenters stated that critical habitat should
not be designated because existing reserved lands, such as national
parks and wildlife refuges, provide sufficient land for the tortoise.
Service Response: The Service determined that the tortoise should
be listed as a threatened species in 1990 (55 FR 12178) partly because
insufficient habitat is protected within congressionally protected
areas to adequately conserve desert tortoises. In addition, the Draft
Recovery Plan recognizes that areas of sufficient size to support self-
sustaining tortoise populations do not exist in already protected
habitats. Critical habitat is primarily designated for areas identified
in the Draft Recovery Plan as necessary for recovery of the desert
tortoise.
Issue 6: Many commenters stated that the Service had proposed to
designate too much habitat for the desert tortoise.
Service Response: The Service proposed critical habitat designation
for those areas that met certain criteria. The proposed and final
designations include at least one CHU within each of the six recovery
units outlined in the Draft Recovery Plan. The size of these areas is
based primarily on the requirements to support self-sustaining
populations. Land management agencies, in consultation with the
Service, may establish desert wildlife management areas in which the
desert tortoise will receive special consideration. Upon establishment
of these areas, the Service may reevaluate the critical habitat
designation.
Issue 7: Several respondents stated that the designation should
include other important desert tortoise habitats, especially the
southern portion of Ft. Irwin, Joshua Tree National Monument, the
Desert Tortoise Natural Area (DTNA), and the Desert National Wildlife
Range. They stated that Congressional withdrawal of public lands within
the DTNA from the general mining and mineral laws must be renewed after
20 years (year 2000). If mineral extraction is allowed after that time,
designation of the DTNA as critical habitat may be the only way to
protect this habitat from the effects of mining. Some respondents
questioned why management plans developed for the DTNA and Joshua Tree
National Monument are sufficient to preclude critical habitat
designation, yet the BLM's Conservation Plan of 1980 is ignored. One
letter said that such inconsistencies degrade the Service's contention
that the DTNA is protected so well that it need not be included in the
critical habitat designation.
Service Response: The critical habitat designation includes the
southern 2 mile-strip of Ft. Irwin, which is south of where most
existing military operations have already degraded or eliminated desert
tortoise habitat. Joshua Tree National Monument, the DTNA, and the
Desert National Wildlife Range were not included in the designation of
critical habitat because the designation would not afford these areas
any additional benefit. The mandates of the Service and the National
Park Service provide for ecosystem management, and those of the BLM are
for multiple use of public lands. The DTNA is managed specifically for
the benefit of the desert tortoise as both a research natural area and
an Area of Critical Environmental Concern. The specified areas are
considered important for recovery of the desert tortoise in the Draft
Recovery Plan and will be considered in establishing desert wildlife
management areas. If, in the future, mineral extraction or other
actions that may adversely affect critical habitat are proposed to be
allowed within these areas, the Service may reevaluate whether
additional critical habitat should be designated.
Issue 8: Several people were concerned that critical habitat would
restrict access to their private lands or mining operations.
Service Response: The Service anticipates being able to work with
other Federal agencies to minimize effects on private landowners.
Section 7 consultation requirements on Federal rights-of-way
applications may, in some limited cases, result in additional
mitigation requirements or modified access to private lands, but the
Service cannot quantify the economic effects.
Issue 9: A few letters stated that the critical habitat designation
should include the Pahrump/Amargosa Valley.
Service Response: The Service based its critical habitat proposal
on those areas recommended for recovery in the Draft Recovery Plan. The
Pahrump/Amargosa Valley was not one of those areas, and, therefore, it
was not included in the proposed designation.
Issue 10: A few respondents requested inclusion of additional areas
as critical habitat for the desert tortoise. One letter suggested that
inclusion of previously disturbed areas will provide buffer zones while
recovery of the habitat occurs, thereby minimizing edge effects of
incompatible land uses and providing smooth-edged boundaries that are
preferable in minimizing the boundary-to-area ratio.
Service Response: The Administrative Procedure Act requires Federal
agencies to provide appropriate notification of proposed actions prior
to making final determinations. Therefore, the Service cannot adopt a
final rule that is significantly different from the proposed rule
without first offering the public an opportunity to comment on the
differences. Departmental policy is to waive notice and public comment
only in special cases such as emergencies or instances where a proposed
amendment makes only minor technical changes in a rule. The only
addition to critical habitat in the final rule for desert tortoise
critical habitat was the inclusion of 3 square miles of BLM land on the
southern boundary of the Beaver Dam Slope CHU in Arizona. This request
for inclusion came from the BLM, as the landowner, to ensure that its
desert tortoise study plot was within desert tortoise critical habitat.
No other landowners will be affected by this inclusion. Other requests
for inclusions were considered significant and were not requested by
the landowner. In order to meet the court-mandated schedule for
designation of critical habitat, the Service was not able to prepare a
second proposal including any of these areas for public review. Such
inclusions may be considered during any future reevaluation of the
designated critical habitat boundaries.
Issue 11: The BIA opposes designation of any critical habitat on
any tribal lands. The critical habitat proposal included lands within
Paiute Indian Tribe of Utah-Shivwits Band (Paiute-Shivwits) lands. The
BIA maintains that formal consultation under the section 7 jeopardy
standard of the Act provides adequate protection for the desert
tortoise.
Service Response: The Service expects that all landowners,
regardless of their status, will comply with the Act and will
contribute to the conservation of the desert tortoise. Low, medium, and
high density desert tortoise habitat exists on Utah tribal lands.
Tribal lands were not excluded from final designation because no new
biological or economic information was provided, and tribal lands
contain desert tortoise habitat necessary for recovery of the Upper
Virgin River Recovery Unit. This recovery unit is unique in that it
contains some of the highest densities of desert tortoises known
throughout the species' range, and it is the smallest recovery unit,
requiring more intensive management to ensure long-term survivability
and ultimate recovery of the unit. Desert tortoise habitat necessary
for recovery within the Upper Virgin River Recovery Unit is not
distinguished by landownership boundaries, and it includes Federal,
State, private, and Tribal lands. Following Service approval and
implementation of a Washington County HCP, the Service will reevaluate
the critical habitat boundaries and may propose to modify critical
habitat, if appropriate.
Issue 12: The Service received several comments concerning the
Washington County HCP process, an effort that has been on-going for
more than 2 years. The final critical habitat designation should
reflect the final Desert Habitat Preserve, to be proposed under a
Washington County HCP.
Service Response: Washington County, Utah, is preparing an HCP
under section 10 of the Act, as part of its application for a permit to
take desert tortoises incidentally. To issue a section 10(a) permit,
the Service must determine that, to the maximum extent practicable, the
applicant will minimize and mitigate the impacts of the taking. The
mitigation for the Washington County permit includes establishment of a
Desert Habitat Preserve, primarily for desert tortoise survival and
recovery. Washington County has not yet submitted an application for a
section 10(a) permit or an HCP to the Service. This final designation
of critical habitat for the desert tortoise reflects in large part the
habitat conservation planning process to date that, if successful, will
result in a desert habitat preserve of sufficient size and
configuration to provide for survival and recovery of desert tortoises
in this recovery unit. If the Service approves a Washington County HCP
and issues a permit to take desert tortoises incidentally, the Service
may reevaluate critical habitat, and propose revisions, if appropriate.
Issue 13: The designation of critical habitat will create ``dumping
grounds'' for desert tortoises.
Service Response: Handling (e.g., ``dumping'') of desert tortoises
is prohibited by the Act, which defines ``take'' to mean to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any
listed species. Critical habitat provides an extra layer of protection
for desert tortoise habitat, but has no effect upon the other
protections provided by the Act.
Issue 14: The Desert Habitat Preserve boundary line north of the
city of Washington was ``agreed upon'' by members of the Washington
County HCP Steering Committee, and that exact line should be reflected
in final designation of critical habitat.
Service Response: The Service has not reviewed that ``agreed upon''
line, nor has it approved any aspect of a Washington County HCP to
date. That line will be reviewed in the context of a Desert Habitat
Preserve established under a Washington County HCP, as part of the
mitigation for incidental take of desert tortoises and their habitat.
Issue 15: Some respondents perceived critical habitat designation
for the desert tortoise as a means by which the Federal government can
seize and ``federalize'' public and private lands. One person saw
designation of critical habitat as a Federal conspiracy. The Service
has a hidden political agenda, is deliberately misinforming the public,
and is attempting to control private property, much in the same regard
as if under a communist regime.
Service Response: Designation of critical habitat does not, in and
of itself, impose additional legal restrictions on private lands except
for actions that are authorized, funded, or carried out by Federal
agencies on those lands. Non-Federal, as well as Federal lands, with or
without designated critical habitat, are still subject to the
prohibitions against take of listed species on their land, pursuant to
section 9 of the Act. Designation of critical habitat is not a
conspiracy, but rather is a requirement of the Endangered Species Act
for threatened and endangered species.
Issue 16: Numerous comments were received from DOD agencies,
requesting that military installations be excluded from designation of
critical habitat. The agencies cited concern over their ability to use
existing facilities, the existence of desert tortoise management plans,
the increased cost of managing critical habitat, and existing
regulatory mechanisms that make the designation of critical habitat
unnecessary.
Service Response: Numerous ongoing activities occur on Federal
lands managed by the military. The Service has issued section 7
biological opinions on many of these activities. These opinions contain
terms and conditions, which were usually developed in coordination with
the military, to reduce the take of desert tortoises. Many ongoing
activities and existing uses, such as the bombing ranges at Edwards Air
Force Base (EAFB), the Naval Air Weapons Station (NAWS) at China Lake,
the Chocolate Mountains Air Gunnery Range, the communications
facilities at the National Aeronautics and Space Administrations'
Goldstone Deep Space Communications Complex, and the rocket test area
at Leuhmann ridge on EAFB, have already resulted in the removal of the
constituent elements of desert tortoise habitat and would not be
affected by a designation of critical habitat. Therefore, military
agencies would not be required to relocate existing facilities to areas
outside of critical habitat.
Issue 17: Several DOD agencies were concerned that expansion of
existing facilities or the siting of new facilities would be prohibited
by designation of critical habitat.
Service Response: In the case of new or expanded facilities that
may affect desert tortoises or designated critical habitat, the DOD
agencies will be required to consult with the Service pursuant to
section 7 of the Act. Through the consultation process, the Service
will determine if the proposed action is likely to jeopardize the
continued existence of the desert tortoise or destroy or adversely
modify designated critical habitat. The DOD provided no economic data
for such future developments by which the Service could consider the
economic costs of designating critical habitat in these areas.
Issue 18: The NAWS and National Training Center at Ft. Irwin cited
the existence of desert tortoise management plans on their lands and
the increased costs of managing critical habitat as reasons for
excluding these lands from critical habitat designation.
Service Response: The Service fully acknowledges the positive
efforts on behalf of the desert tortoise already implemented by the
Navy and the Army. Such plans should be considered in establishing
recovery areas for the desert tortoise, as recommended by the Draft
Recovery Plan. The DOD should work closely with the BLM and the Service
in determining where these recovery areas will be located and what
actions will be implemented within them to effect recovery of the
desert tortoise. Following establishment of recovery areas, the Service
will reevaluate its designation of critical habitat.
Issue 19: EAFB expressed concern that designation of critical
habitat would prevent use of supersonic corridors in the desert.
Service Response: The primary potential adverse effects of
supersonic flight on the desert tortoise would be to the tortoises
themselves, as potential harm or harassment. Supersonic flight is not
expected to destroy or adversely modify desert tortoise habitat.
Issue 20: The Marine Corps requested that Twentynine Palms Air
Ground Combat Center be removed from critical habitat designation in
the Ord-Rodman CHU.
Service Response: The Service has reevaluated the desert tortoise
habitat within the Twentynine Palms Air Ground Combat Center. Off-road
travel by armored vehicles, bombing and strafing with live ammunition,
and emergency disposal of ordnance and fuel from aircraft have resulted
in deterioration of habitat quality over large contiguous areas. Based
on this reevaluation, the Service has refined the boundaries of the
Ord-Rodman CHU to remove the Twentynine Palms Air Ground Combat Center
from designation as critical habitat.
Issue 21: A few commenters responded that there is no substantive
evidence that directly links the decline in tortoise numbers with
livestock grazing, nor is there any evidence that tortoises have
suffered because their habitat has been grazed.
Service Response: The Service is currently consulting informally
with the BLM regarding impacts of livestock grazing on desert tortoise
critical habitat. Although no definitive studies on the relation
between livestock grazing and the welfare of desert tortoises have yet
been completed, there is a significant amount of scientific literature
on the adverse effects of livestock grazing on desert ecosystems, in
terms of vegetation changes, soil compaction and erosion, and reduction
of microorganisms in the soil. The Service will continue discussions
with the BLM and the Desert Tortoise Recovery Team on this issue.
Issue 22: Some letters stated that utility corridor expansion, road
proliferation from illegal OHV activity, legal mineral exploration, and
current grazing practices are existing activities that degrade tortoise
habitat. Stopping these uses that are destructive to existing critical
habitat is the answer to protecting the tortoise.
Service Response: As stated previously, designation of critical
habitat does not create a land management plan. Federal agencies will
enter into consultation pursuant to section 7 of the Act with the
Service for all activities that they authorize, fund, or carry out.
Through that consultation, the Service will determine if the actions
are likely to jeopardize the continued existence of the species or
destroy or adversely modify critical habitat. The Federal land
management agencies will address the multiple uses on lands under their
administration in the process of establishing desert wildlife
management areas to implement recovery actions for the desert tortoise.
Issue 23: Some people questioned the existence of scientific data
that reflects a true depiction of the distribution of desert tortoises
in the West Mojave or elsewhere.
Service Response: Although not every square inch of land in the
Mojave Desert has been inventoried for the presence of desert
tortoises, the BLM and other agencies and biologists have spent
considerable time and effort conducting desert tortoise surveys
throughout the range of the desert tortoise. Such information has been
compiled into the BLM's category and density maps for the desert
tortoise, which are used by many of the agencies involved in desert
tortoise management. This information was also used in preparing the
Draft Recovery Plan. Issue 24: Some people stated that the Service
should consider the custom and culture and the continued quality of
existence of the human species. The customs and culture of the people
should have the same consideration as biology and economics in
determining critical habitat for the desert tortoise.
Service Response: The designation of critical habitat is mandated
by the Endangered Species Act and is based on the best scientific data
available after taking into consideration the economic impact and any
other relevant impact of specifying an area as critical habitat. In
developing DWMAs, land management agencies will have the opportunity to
consider local custom and culture in their decision processes.
Issue 25: One respondent stated that the Service's statements about
increasing OHV use as of 1980 statistics did not address the extent of
lands made unavailable between the years 1980 and 1993. Currently less
than 2 percent of the California desert is accessible for motorized
recreation.
Service Response: Although more roads have been closed since 1980,
between 1980 and 1988, there were more open areas and limited access
areas and fewer closed areas (Biosystems Analysis 1991). In addition,
the impact of OHVs on tortoises has increased over the last decade due
to changes in BLM zoning, increases in OHV use, and the proliferation
of illegal roads, a factor that results in serious environmental
impacts and a difficult management issue for the BLM.
Issue 26: One letter stated that organized OHV activities in the
West Mojave are regulated by section 7 permits issued by the Service
through consultation with the BLM. Because OHVs have abided by these
stipulations, expansive designation of critical habitat is not
necessary in light of the protection available through the permitting/
stipulation process.
Service Response: Through section 7 of the Act, the Service
consults with Federal agencies that authorize, fund, or carry out
actions that may affect a listed species. With the listing of a
species, the Service determines through these consultations whether an
action is likely to jeopardize the continued existence of a species.
The adverse modification standard may be applied when an action would
likely preclude recovery of a listed species. Thus critical habitat
provides additional protection to a species and its habitat through
section 7 of the Act. After designation of critical habitat, the
Service will also determine if an action is likely to destroy or
adversely modify critical habitat. Following designation of critical
habitat, all current activities for which a Federal agency maintains
discretionary action must undergo reinitiation of consultation to
analyze whether or not they are likely to destroy or adversely modify
critical habitat. OHV activities within the designated critical habitat
are not the only activities that may adversely affect the desert
tortoise and its habitat.
Issue 27: Some letters objected to the general statements that OHV
activity results in negative impacts on desert tortoise habitat without
quantifying such effects.
Service Response: The negative impacts of OHV activity on desert
tortoise habitat have been quantified extensively since the early
1970s. Tortoises are adversely affected by OHVs through loss of forage
and vegetative cover; increased mortality from crushing, collection,
and vandalism; and soil compaction and loss of burrow sites. Because
the use of OHVs in desert areas is a highly charged issue, much
attention has been placed on the review of studies and the appropriate
use of statistical tests in the quantifying the resultant data.
Issue 28: Some respondents said that the BLM has already addressed
protection of the desert tortoise in the Western Mojave Coordinated
Management Plan and other management plans previously approved and
implemented under the Federal Land Policy and Management Act. Further
protection is not necessary.
Service Response: The Western Mojave Coordinated Management Plan is
still in the planning stages and, therefore, does not yet afford the
desert tortoise any protection. Upon its finalization and
implementation, the Service may reevaluate the critical habitat
designation.
Issue 29: One respondent said that the Service, as a government
agency, has an obligation to the general public it serves to consider
its actions that, in conjunction with the proposed rule, will affect
all of the public, including those that engage in OHV recreation. There
are no areas to which these activities can be relocated or restricted.
Service Response: Protection measures were implemented by the BLM
in 1988 through its Rangewide Plan to reduce OHV use throughout the
range of the desert tortoise in category I and II habitats. As stated
in the Draft Economic Impact Analysis, in its off-highway users guide,
California listed 24 OHV recreational areas managed by Federal, State,
and other agencies in Imperial, Riverside, and San Bernardino Counties.
Four sites in the guide lie just outside proposed CHUs. Critical
habitat designation as proposed will not affect OHV use at these four
sites. The other three States also offer areas for use by OHV
enthusiasts.
Issue 30: One letter stated that hiking, camping, and birdwatching
are listed in the proposed rule as examples of non-consumptive uses.
All of these activities necessitate a vehicle, in most instances off of
a paved road, therefore, acting as OHVs. Also, OHV activities are not
``commercial,'' but rather ``recreational.'' The Service should
reevaluate this classification.
Service Response: Any use of vehicles off of designated roads and
trails, for whatever the reason, can negatively impact the desert
ecosystem. The Service is not singling out organized OHV user groups in
this assessment. However, the actions of hiking, camping, and
birdwatching, provided they do not involve use of vehicles off of
designated roads and trails, are not likely to adversely modify
critical habitat. The Service recognizes that most recreational
activity is not commercial. However, most OHV races involve profits for
the promoters, which is considered a commercial enterprise.
Issue 31: Many respondents were concerned that designation of
critical habitat would restrict all motorized access into these areas.
Some stated that OHV recreation and desert tortoise protection are not
mutually exclusive.
Service Response: The Service anticipates that, although Federal
land managers may close some roads as a result of critical habitat
designation, there will still be opportunities for scenic touring and
other motorized uses on designated roads and trails within CHUs.
Issue 32: One letter stated that the management decision to set
aside millions of acres violates the Federal Land Policy and Management
Act because it exceeds 100,000 acres and requires approval of Congress
within 90 days thereafter. Therefore, the designation of critical
habitat has no force and effect.
Service Response: Designation of critical habitat is not a land
withdrawal nor a land management action, but rather an action required
by section 4 of the Endangered Species Act. Land-use actions
authorized, funded, or carried out by Federal agencies must undergo
section 7 consultation, whereby the Service will determine if such
actions are likely to jeopardize the continued existence of the desert
tortoise or destroy or adversely modify its critical habitat. Exclusion
of activities is not automatic upon the designation of critical
habitat.
Issue 33: One letter stated that designation of critical habitat
may severely limit the ability of State game agencies to travel off-
highway to develop wildlife enhancement projects involving construction
of roads or other facilities.
Service Response: Designation of critical habitat will not prohibit
construction and maintenance of wildlife developments. Each such
development will be evaluated on a case-by-case basis through section 7
consultation between the Federal land management agency and the
Service. Although the land management agency may restrict off-road
travel within critical habitat, delivery of construction materials can
most often be accomplished by other means, such as by foot, horseback,
or helicopter.
Issue 34: Some letters recommended that areas that have
traditionally been heavily used for recreation should be excluded, as
enforcement will be costly and ineffective.
Service Response: The Service has included those areas containing
constituent elements consistent with recommendations in the Draft
Recovery Plan. In the final rule, the Service, where practicable, has
deleted areas that do not contain constituent elements. No such
information was provided for the recreation areas described. Land
management agencies can consider these recreation areas during their
establishment of recovery areas for desert tortoises.
Issue 35: Several people were concerned that designation of
critical habitat would preclude the recreational use of lands that
their families have used for generations, and they strongly opposed its
designation.
Service Response: Designation of critical habitat is not synonymous
with setting aside wilderness, locking up the lands within, or
prohibiting all uses. The Service anticipates that the land management
agencies will designate roads and trails within critical habitat, and
that they will close some roads that are secondary and not necessary
for access to private lands or mines. Also, designation of critical
habitat could increase certain types of recreational use. Many people
enjoy areas that show fewer signs of human activity. Activities
considered not likely to adversely affect critical habitat include
hunting, picnicking, casual horseback riding (on designated roads and
trails), camping, birdwatching, bike riding (on designated roads and
trails), hiking, and motor vehicle use on designated roads.
Issue 36: Some local agencies and utility companies were concerned
that designation of critical habitat would affect their ability to
access, use, and maintain existing facilities, rights-of-way, and fee
property. Some stated that existing utility corridors should be
excluded from critical habitat designation. Several agencies were
concerned that critical habitat designation would either exclude or
significantly increase the cost of future public works projects.
Service Response: Designation of critical habitat should not
interfere with on-going maintenance of existing roads and utilities.
These structures do not normally contain primary constituent elements,
and they would, therefore, not be affected by the designation. Routine
maintenance operations on existing pipelines, buried fiber-optic lines,
and electrical transmission line rights-of-way are generally covered
under existing section 7 consultations and are not likely to constitute
adverse modification of critical habitat. Any expansion, addition, or
modification within the rights-of-way or fee property will be subject
to section 7 consultation if authorized, funded, or carried out by a
Federal agency. Through such consultation, the Service will determine
if the proposed action is likely to jeopardize the continued existence
of the desert tortoise or destroy or adversely modify its critical
habitat.
Issue 37: Several individuals requested that the final rule contain
a discussion of how CHUs will be managed. Other members of the public
were concerned that critical habitat designation forces creation of a
management plan, establishes population goals, or prescribes specific
management actions.
Service Response: The designation of critical habitat does not
create a management plan for the listed species. It is the
responsibility of land management agencies to ensure that actions they
authorize, fund, or carry out do not destroy or adversely modify
designated critical habitat. Several Federal agencies charged with
management of the public's lands are preparing or already implementing
management plans that include actions that will benefit the desert
tortoise. Development of such land use plans should focus on
recommendations provided in the desert tortoise recovery plan.
Issue 38: Some people commented that the Service should prepare an
Environmental Impact Statement pursuant to the National Environmental
Policy Act (NEPA) on the proposed designation of critical habitat prior
to publishing a final rule.
Service Response: The decision in Pacific Legal Foundation v.
Andrus, 675 F.2d 829 (6th Cir. 1981), held that as a matter of law, an
Environmental Impact Statement is not required for listings under the
Act. The decision noted that preparing Environmental Impact Statements
on listing actions does not further the goals of NEPA or the Act. The
Service believes that, under the reasoning of this decision, preparing
an Environmental Impact Statement on the proposed critical habitat
designation would not further the goals of NEPA or the Act and is not
legally required. NEPA documentation will be required for BLM plans and
activities that involve critical habitat. The Service published a
notice outlining this determination on October 25, 1983 (48 FR 49244).
The decision in Douglas County v. Babbitt, 810 F.Supp. 1470 (D. Ore.
1992), which held that the Service must comply with NEPA in designating
critical habitat, has been stayed pending appeal of the decision to the
Ninth Circuit Court of Appeals.
Issue 39: One letter stated that final designation should include
more definitive guidelines and specific examples for measuring adverse
modification of critical habitat.
Service Response: It is difficult for the Service to anticipate all
activities that may be proposed within critical habitat. In addition,
the Service should avoid prejudging the outcome of section 7
consultations. The Service will make a determination, on a case-by-case
basis, if the proposed action is likely to jeopardize the continued
existence of the species or destroy or adversely modify critical
habitat.
Issue 40: A number of organizations and individuals requested that
the Service include within critical habitat the proposed site for the
low-level radioactive waste repository (LLRWR) in Ward Valley
(Chemehuevi CHU). Commenters provided a variety of reasons for
inclusion of the LLRWR site, including potential threats to the desert
tortoise should the LLRWR leak radionuclide-contaminated fluids,
leachate contamination of the aquifer underlying the LLRWR site, the
potential for contamination of the Colorado River and subsequent
adverse effects to listed species that inhabit the Colorado River, and
the alleged poor operating record of the proposed licensee. Some
commenters stated that allowing the proposed LLRWR in Ward Valley would
violate sections 2, 4(b)(2), and 7(a)(1) of the Endangere
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