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Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53195 Our Response: In our economic analysis, we attempted to address potential economic impacts from the designation on landowners and activities, including forest management activities. The analysis was based upon the best data available to our contractors. We subsequently released our draft analysis for public review and comment to specifically seek input from affected landowners, agencies, jurisdictions, and governments. Our final analysis incorporates or addresses any new information and issues raised in the public comments. Please refer to our final economic analysis of the designation for a more detailed discussion of these issues. (51) Comment: Several commenters voiced concern that they were not directly contacted for their opinions on the economic impacts of critical habitat designation. Our Response: It was not feasible to contact every potential stakeholder in order for us to develop a draft economic analysis. We believe we were able to understand the issues of concern to the local communities based on public comments submitted on the proposed rule and draft economic analysis, on transcripts from public hearings, and from detailed discussions with Service representatives, and from data otherwise available to us and our contractors. To clarify issues, we solicited information and comments from representatives of Federal, State, Tribal, and local government agencies, as well as some private landowners, and requested comments from all interested parties, including landowners we were unable to contact directly. (52) Comment: The opportunity for public comment on the draft Economic Analysis and draft Environmental Assessment was limited. Our Response: We announced the availability of these documents in the Federal Register on March 26, 2004, and opened a 30 -day public comment period for the draft Economic Analysis, draft Environmental Assessment, and proposed rule. On November 13, 2003, the United States District Court for the District of Arizona, (Center for Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB), extended the original deadlines for designating critical habitat and ordered us deliver the final rule to the Federal Register on August 20, 2004. We believe that sufficient time was allowed for the public to review and provide comment on these documents given the time frame ordered by the court. (53) Comment: Your draft Economic Analysis did not consider watersheds, water rights, State water rights, adjudication with Texas on water rights, or the effect on water rights of any of the people within those watersheds. Our Response: While we appreciate the concerns raised by the commenter about water rights, we do not have any specific information that leads us to believe that the designation of critical habitat for the owl will have any impact on water rights of any kind. Further, it is our interpretation that the commenter did not adequately explain their rationale as to why they believed critical habitat for the owl will impact watersheds or water rights. (54) Comment: The draft economic analysis and proposed rule do not comply with Executive Order 12866, which requires each Federal agency to assess the costs and benefits of proposed regulations. Our Response: We determined that this rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Thus, a cost - benefit analysis is not required for purposes of Executive Order 12866 (see "Required Determinations" section). (5 5) Comment: The draft economic analysis, draft environmental assessment, and proposed rule failed to adequately estimate and address the potential economic and environmental consequences and how timber, fuel wood, land acquisition and disposal, oil and gas development, and mining would be impacted by the designation. Our Response: In our proposed rule and subsequent notices reopening the comment period on the proposal and draft economic analysis, we solicited information and comments associated with the potential impacts of designating critical habitat for the owl. Further, our economic analysis contractor conducted a variety of interviews to understand and estimate the types of potential impacts and costs that were perceived to stem from owl conservation. We reviewed all comments received during the public comment periods and have concluded that further information was not provided on how the designation of critical habitat would result in economic or environmental consequences beyond those already addressed in the economic analysis, environmental assessment, or this final rule. (56) Comment: One commenter questioned whether publishing the proposed rule prior to releasing the environmental assessment violated the intent of NEPA by being pre- decisional. The Service did not consider a reasonable range of alternatives in the NEPA analysis. Our Response: Alternative I in the environmental assessment was to finalize the designation of critical habitat as described in the proposed rule published in the Federal Register on July 21, 2000 (65 FR 45336). The draft EA also considered a no- action alternative and two other action alternatives. We believe the alternatives in our EA were sufficient, the document was consistent with the spirit and intent of NEPA, and it was not pre - decisional. (5 7) Comment: The assumption applied in the economic analysis that the designation of critical habitat will cause no impacts above and beyond those caused by listing of the species is faulty, legally indefensible, and contrary to the Act. "Adverse modification" and "jeopardy" are different, will result in different impacts, and should be analyzed as such in the economic analysis. Our Response: We have conducted a new analysis of the economic impacts of designating these areas, in a manner that is consistent with the ruling of the 10th Circuit Court of Appeals in New Mexico Cattle Growers Assn v. USFWS, 248 F.3d 1277 (10th Cir. 2001). As this economic analysis details, we included an analysis of "co- extensive" effects. As such, the economic analysis does not focus only on section 7 impacts. (58) Comment: The proposed designation of critical habitat targets private property and will impose economic hardship on private landowners. There is an expressed concern that the proposed critical habitat designation would have serious financial implications for grazing and sources of revenue that depend upon Federal "multiple -use" lands. The designation will have harmful impacts on the quality of life, education, and economic stability of small towns. Anticipated effects on private property from habitat conservation plans under section 10 of the Act are not explained. Our Response: As indicated in our proposal and -this final rule, critical habit at vkis ,,no ,being designated on private andFurther, as stated in the economic analysis, the proposed rule to designate critical habitat for the owl is adding few, if any, new requirements to the current regulatory process. Since consultations for the adverse modification of the owl's critical habitat and jeopardy to the species are based upon determinations of consistency with the owl's Recovery Plan, the listing of the owl itself initiated the requirement for consultation. The critical habitat designation is unlikely to result in