[Federal Register Volume 69, Number 194 (Thursday, October 7, 2004)]
[Proposed Rules]
[Pages 60110-60134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22541]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018--AT86
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Navarretia fossalis (spreading
navarretia)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for Navarretia fossalis (spreading
navarretia) pursuant to the Endangered Species Act of 1973, as amended
(Act). We have identified 31,086 acres (ac) (12,580 hectares (ha)) of
habitat essential to the conservation of Navarretia fossalis, and
propose to designate 4,301 ac (1,741 ha) of this essential habitat as
critical habitat in San Diego and Los Angeles Counties, California. We
have excluded 26,785 ac (10,839 ha) of essential habitat in Riverside
and San Diego Counties from this proposed critical habitat designation.
The excluded lands are located within approved and pending habitat
conservation plans (HCPs), ``mission-critical'' training areas on
Department of Defense lands, and areas covered by Integrated Natural
Resource Management Plans (INRMPs) on Department of Defense lands. In
developing this proposal, we evaluated those lands determined to be
essential
[[Page 60111]]
to the conservation of Navarretia fossalis to ascertain if any specific
areas warrant non-inclusion or exclusion from critical habitat pursuant
to sections 4(a)(3) and 4(b)(2) of the Act. On the basis of our
evaluation, we have determined that the benefits of excluding approved
and pending HCPs and ``mission-critical'' training lands owned and
managed by the Department of Defense from critical habitat for
Navarretia fossalis outweighs the benefits of their inclusion, and have
subsequently excluded those lands from this proposed designation of
critical habitat for this species pursuant to section 4(b)(2) of the
Act. We have also evaluated Integrated Natural Resource Management
Plans (INRMP) on Department of Defense lands and have not proposed
critical habitat where the INRMP provides a benefit to the species
pursuant to section 4(a)(3) of the Act. We hereby solicit data and
comments from the public on all aspects of this proposal, including
data on economic and other impacts of the designation. We may revise
this proposal prior to final designation to incorporate or address new
information received during public comment periods.
DATES: We will accept comments until December 6, 2004. Public hearing
requests must be received by November 22, 2004.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Field
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 6010 Hidden Valley Road, Carlsbad, CA 92009.
2. You may hand-deliver written comments and information to our
Carlsbad Fish and Wildlife Office, at the above address, or fax your
comments to (760) 731-9618.
3. You may send your comments by electronic mail (e-mail) to
[email protected]. For directions on how to submit electronic
filing of comments, see the ``Public Comments Solicited'' section. In
the event that our internet connection is not functional, please submit
your comments by the alternate methods mentioned above.
All comments and materials received, as well as supporting
documentation used in preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the above address. Maps of essential habitat not included in
the proposed critical habitat are available for viewing by appointment
during regular business hours at the Carlsbad Fish and Wildlife Office
(see ADDRESSES section) or on the Internet at http://carlsbad.fws.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor,
Carlsbad Fish and Wildlife Office (telephone (760) 431-9440; facsimile
(760) 431-9618).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
It is our intent that any final action resulting from this proposal
will be as accurate as possible. Therefore, we solicit comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. In the development of our final
designation, we will incorporate or address any new information
received during the public comment periods, or from our evaluation of
the potential economic impacts of this proposal. As such, we may revise
this proposal to address new information and/or to either exclude
additional areas that may warrant exclusion pursuant to section 4(b)(2)
or we designate additional areas determined to be essential to the
species but excluded from this proposal. We particularly seek comments
concerning:
(1) The reasons why any areas should or should not be determined to
be critical habitat as provided by section 4 of the Act.
(2) Specific information on the amount and distribution of
Navarretia fossalis and its habitat, and which habitat or habitat
components are essential to the conservation of this species and why;
(3) Land use designations and current or planned activities in or
adjacent to the areas proposed and their possible impacts on proposed
critical habitat;
(4) Any foreseeable economic or other potential impacts resulting
from the proposed designation, in particular, any impacts on small
entities and;
(5) Whether our approach to designate critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
Some of the lands we have identified as essential for the
conservation of the Navarretia fossalis are not being proposed as
critical habitat. The following areas essential to the conservation of
N. fossalis are not being proposed as critical habitat or have been
excluded from this proposal: lands on Marine Corps Air Station Miramar
(MCAS, Miramar); ``mission-critical'' training areas on Marine Corps
Base, Camp Pendleton (Camp Pendleton); areas within the San Diego
Multiple Species Conservation Program (MSCP), and areas within the
Western Riverside Multiple Species Habitat Conservation Plan (MSHCP).
These areas have been excluded because they meet the standard for
exclusion under section 4(a)(3) of the Act, or because we believe the
benefit of excluding these areas from critical habitat outweighs the
benefit of including them pursuant to section 4(b)(2). We specifically
solicit comment on: (a) Whether these areas are essential; (b) whether
these areas warrant exclusion; and (c) the basis for not designating as
or excluding these areas from critical habitat pursuant to section
4(a)(3) or section 4(b)(2) of the Act (see Exclusions Under Section
4(b)(2) of the Act and Relationship to Department of Defense Lands
sections for a detailed discussion).
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please submit Internet comments to [email protected] in
ASCII file format and avoid the use of special characters or any form
of encryption. Please also include ``Attn: RIN 1018-AT86'' in your e-
mail subject header and your name and return address in the body of
your message. If you do not receive a confirmation from the system that
we have received your Internet message, contact us directly by calling
our Carlsbad Fish and Wildlife Office at phone number (760) 431-9440.
Please note that the e-mail address [email protected] will be
closed out at the termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
[[Page 60112]]
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. Additionally, we have also found
that comparable conservation can be achieved by implementation of laws
and regulations obviating the need for critical habitat. The Service's
present system for designating critical habitat has evolved since its
original statutory prescription into a process that provides little
real conservation benefit, is driven by litigation and the courts
rather than biology, limits our ability to fully evaluate the science
involved, consumes enormous agency resources, and imposes huge social
and economic costs. The Service believes that additional agency
discretion would allow our focus to return to those actions that
provide the greatest benefit to the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 36 percent (445 species)
of the 1,244 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat. We address the habitat needs
of all 1,244 listed species through conservation mechanisms such as
listing, section 7 consultations, the section 4 recovery planning
process, the section 9 protective prohibitions of unauthorized take,
section 6 funding to the States, and the section 10 incidental take
permit process. The Service believes it is these measures that may make
the difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion,
Gifford Pinchot Task Force v. United State Fish and Wildlife Service,
has invalidated the Service's regulation defining destruction or
adverse modification of critical habitat. We are currently reviewing
the decision to determine what effect it may have on the outcome of
consultations pursuant to Section 7 of the Act.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been overwhelmed with lawsuits regarding designation of
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA), all are part of the cost of
critical habitat designation. None of these costs result in any benefit
to the species that is not already afforded by the protections of the
Act enumerated earlier, and they directly reduce the funds available
for direct and tangible conservation actions.
Background
It is our intent to discuss only those topics directly relevant to
the identification and proposed designation of critical habitat for
Navarretia fossalis in this rule. For more information on this species,
refer to the final listing rule published in the Federal Register on
October 13, 1998 (63 FR 54975) and the Recovery Plan for the Vernal
Pools of Southern California (Recovery Plan) finalized on September 3,
1998 (Service 1998).
Life History
Navarretia fossalis, a member of Polemoniaceae (phlox family), is a
low, mostly spreading or ascending, annual herb, 10 to 15 centimeters
(cm) (4 to 6 inches (in)) tall. This species grows in vernal pools,
clay flats, irrigation ditches, alkali grasslands, alkali playas, and
alkali sinks (Dudek and Associates, Inc. 2003; Spencer 1997). The lower
portions of the stems are mostly glabrous (bare). The leaves are soft
and finely divided, 1 to 5 cm (0.4 to 2 in) long, and spine-tipped when
dry. The flowers are white to lavender white with linear petals and are
arranged in flat-topped, compact, leafy heads. The fruit is an ovoid,
2-chambered capsule (Day 1993; Moran 1977).
There are approximately 30 species in the genus Navarretia, several
of which occur within the range of Navarretia fossalis. N. fossalis can
be confused with, and has been misidentified as, N. prostrata (Moran
1977). N. fossalis is distinguished by its linear or narrowly ovate
corolla lobes, erect habit, cymose inflorescences, the size and shape
of the calyx, and the position of the corolla relative to the calyx
(Day 1993; Service 1998). Two other Navarretia taxa are also federally
listed as endangered: N. leucocephala ssp. plieantha (many-flowered
navarretia) and N. leucocephala ssp. pauciflora (few-flowered
navarretia) (62 FR 33029). However, these two species are found in
vernal pools in northern California.
Distribution and Status
Navarretia fossalis is distributed from northwestern Los Angeles
County and western Riverside County, south through coastal San Diego
County, California to northwestern Baja California, Mexico (Moran 1977;
Oberbauer 1992). It is found at elevations between sea level and 4,250
[[Page 60113]]
feet (ft) (1,300 meters (m)) in vernal pools, alkali grassland, alkali
playa, and alkali sink habitats (Day 1993; Munz 1974; California Native
Plant Society (CNPS) 2001; Reiser 2001; California Natural Diversity
Data Base (CNDDB) 2004).
One population has been reported from San Luis Obispo County,
however, the identification of this population is thought to be in
error (pers. comm. with Spencer 2004). Fewer than 45 populations exist
in the United States (CNDDB 2004). Nearly 60 percent of the known
populations are concentrated in three locations: Otay Mesa in southern
San Diego County, along the San Jacinto River in western Riverside
County, and near Hemet in Riverside County (Service 1998). The two
largest populations occur in Riverside County and have been estimated
to support 375,000 and 100,000 individuals respectively within 8 ac (3
ha) of habitat. Most other populations contain fewer than 1,000
individuals and occupy less than 1 ac (0.5 ha) of habitat. We estimate
that less than 300 ac (120 ha) of habitat in the United States is
occupied by this species (63 FR 54975). This estimate only quantifies
the areas where the Navarretia fossalis is physically found and does
not include the areas adjacent to the populations that are necessary to
provide the hydrology that this species requires. In Mexico, N.
fossalis is known from fewer than 10 populations clustered in three
areas: along the international border, on the plateaus south of the Rio
Guadalupe, and on the San Quintin coastal plain (Moran 1977).
Threats
It is estimated that greater than 90 percent of the vernal pool
habitat in Southern California has been converted as a result of past
human activities (Bauder and McMillan 1998; Keeler-Wolf et al. 1998).
Navarretia fossalis is threatened by habitat destruction and
fragmentation from urban and agricultural development, pipeline
construction, alteration of hydrology and floodplain dynamics,
excessive flooding, channelization, off-road vehicle activity,
trampling by cattle and sheep, weed abatement, fire suppression
practices (including discing and plowing to remove weeds and create
fire breaks), and competition from alien plant species (63 FR 54975).
Previous Federal Action
The final listing rule for Navarretia fossalis provides a
description of previous Federal actions through October 13, 1998 (63 FR
54975). Efforts necessary for the survival and recovery of N. fossalis
are presented in the Recovery Plan (Service 1998).
At the time of listing, we concluded that designation of critical
habitat for Navarretia fossalis was not prudent because such
designation would not benefit the species. On November 15, 2001, a
lawsuit was filed against the Department of the Interior (DOI) and the
Service by the Center for Biological Diversity and California Native
Plant Society, challenging our ``not prudent'' determinations for eight
plants including Navarretia fossalis (CBD, et al. v. Norton, No. 01-CV-
2101 (S.D. Cal.)). A second lawsuit asserting the same claim was filed
against the DOI and us by the Building Industry Legal Defense
Foundation (BILD) on November 21, 2001 (BILD v. Norton, No. 01-CV-2145
(S.D. Cal.)). The parties in both cases agreed to a remand of the
critical habitat determinations to us for additional consideration. In
an order dated July 1, 2002, the U.S. District Court for the Southern
District of California directed us to reconsider our not prudent
finding and publish a proposed critical habitat rule for N. fossalis,
if prudent, on or before January 30, 2004. In a motion to modify the
July 1, 2002 order, the DOI and we requested that the due date for the
proposed rule for N. fossalis be extended until October 1, 2004. This
motion was granted on September 9, 2003. This proposed rule complies
with the court's ruling.
Critical Habitat
Section 3(5)(A) of the Act defines critical habitat as: (i) The
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the provisions of section 4 of
[the] Act, 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 a species at the time
it is listed in accordance with the provisions of section 4 of [the]
Act, upon a determination that such areas are essential for the
conservation of the species (Endangered Species Act (Act) 1973 (as
amended)). ``Conservation'' means the use of all methods and procedures
that are necessary to bring an endangered or a threatened species to
the point at which listing under the Act is no longer necessary (Act
1973).
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat.
To be included in a critical habitat designation, the habitat must
first be ``essential to the conservation of the species.'' Critical
habitat designations identify, to the extent known using the best
scientific data available, habitat areas that provide essential life
cycle needs of the species (i.e., areas on which are found the primary
constituent elements, as defined at 50 CFR 424.12(b)).
Occupied habitat may be included in critical habitat only if the
essential features thereon may require special management or
protection. Thus, we do not include areas where existing management is
sufficient to conserve the species. (As discussed below, such areas may
also be excluded from critical habitat pursuant to section 4(b)(2).)
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by the species only when a designation limited to its present range
would be inadequate to ensure the conservation of the species'' (50 CFR
424.12(e)). Accordingly, when the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographic area occupied by the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271)
and our U.S. Fish and Wildlife Service Information Quality Guidelines
(2002) provide criteria, establish procedures, and provide guidance to
ensure that our decisions represent the best scientific and commercial
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing package for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials and expert opinion or personal knowledge.
Critical habitat designations do not signal that habitat outside
the designation is unimportant to
[[Page 60114]]
Navarretia fossalis. Areas outside the critical habitat designation
will continue to be subject to conservation actions that may be
implemented under section 7(a)(1), and to the regulatory protections
afforded by the section 7(a)(2) jeopardy standard, as determined on the
basis of the best available information at the time of the action. We
specifically anticipate that federally funded or assisted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b)(2) of the Act, we use the best
scientific data available in determining areas that are essential to
the conservation of Navarretia fossalis. The Recovery Plan for Vernal
Pools of Southern California (Recovery Plan) outlines areas essential
to the conservation of seven species, including Navarretia fossalis (as
well as San Diego fairy shrimp (Branchinecta sandiegonensis), Riverside
fairy shrimp (Streptocephalus woottoni), Eryngium arstulatum var.
parishii (San Diego button-celery), Pogogyne nudiuscula (Otay mesa
mint), Pogogyne abramsii (San Diego mesa mint), Orcuttia californica
(California Orcutt grass)) (Service 1998). The Recovery Plan also
outlines steps necessary to stabilize and recover these species to the
point where protection under the Act is no longer required. The
Recovery Plan uses Management Areas to define regional conservation
needs. We have used these Management Areas to aid in identifying
habitat essential to the conservation of the species. The areas
essential for conservation of this species are detailed in appendices F
and G of the Recovery Plan. This and additional information gathered
after the completion of the Recovery Plan, are the basis for
identifying the essential habitat for Navarretia fossalis.
To map and define the areas listed in the Recovery Plan we used
research and survey observations published in peer-reviewed articles,
regional Geographic Information System (GIS) vegetation, soil, and
species coverages, and data compiled in the CNDDB. Information about
Navarretia fossalis was mapped using GIS and refined indicating the
essential habitat associated with each of the occurrences. Areas not
containing the primary constituent elements were not included in the
boundaries of proposed critical habitat, whenever possible. After
creating a GIS coverage of the essential areas, we created legal
descriptions of the essential areas. We used a 100-meter grid to
establish Universal Transverse Mercator (UTM) North American Datum 27
(NAD 27) coordinates which, when connected, provided the boundaries of
the essential areas.
The areas of essential habitat were then analyzed with respect to
sections 4(a)(3) and 4(b)(2) of the Act, and any areas that should not
be included or excluded from proposed critical habitat were identified.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to base critical habitat determinations on the
best scientific data available and to consider those physical and
biological features (primary constituent elements (PCEs)) that are
essential to the conservation of the species, and that may require
special management considerations or protection. These include, but are
not limited to: Space for individual and population growth and for
normal behavior; water, air, light, minerals, or other nutritional or
physiological requirements; space for growth, development and
reproduction, including the space necessary for pollinators to live;
and habitats that are protected from disturbance or are representative
of the historic geographical and ecological distributions of a species.
The specific biological and physical features, otherwise referred
to as the primary constituent elements, which comprise Navarretia
fossalis habitat are based on specific components that provide for the
essential biological needs of the species as described below.
Individual and Population Growth, Including Sites for Germination,
Pollination, Reproduction, Pollen and Seed Dispersal, and Seed Dormancy
Navarretia fossalis is primarily associated with vernal pools (Day
1993; Service 1998) at elevations between sea level and 4,250 ft (1,300
m), and on flat to gently sloping terrain. N. fossalis occurs in vernal
pools in alkali grassland habitat along the San Jacinto River in
Riverside County (Bramlet 1993). The species also occasionally occurs
in ditches and other artificial depressions in degraded vernal pool
habitat (Moran 1977).
Areas That Provide Basic Requirements for Growth, Such as Water, Light,
and Minerals
Navarretia fossalis requires areas that are ephemerally wet in the
winter and spring months and dry in the summer and fall months. This
type of ephemeral habitat does not allow either upland plants that live
in a dry environment year round or wetland plants that require year
round moisture to become established (Keeler-Wolf et al. 1998). These
habitats then allow for specialized plants, such as the N. fossalis, to
benefit from the exclusion of strictly upland and wetland plants.
Areas That Support Populations of Pollinators and Seed Dispersers
Navarretia fossalis flowers from May through June. This species has
evolved mechanisms to self-pollinate (Spencer 1997). The fruit of this
species consists of indehiscent (i.e., not opening spontaneously at
maturity to release seeds) capsules 2 to 3 millimeters long containing
5 to 25 seeds. The seeds develop a sticky, slimy coating when wet,
which may retain moisture and aid in germination (Moran 1977). After
fruiting, the species dries out and loses its color rapidly, and can be
difficult to detect late in the dry season or in dry years. The number
of individuals of N. fossalis at a given population site varies
annually in response to the timing and amount of rainfall and
temperature (Service 1998).
Sufficient studies to reveal possible pollinators of Navarretia
fossalis have not yet been conducted. Seeds of this plant are likely
dispersed locally by the flow of water throughout the vernal pool or
alkali wetlands in which this plant occurs. More distant dispersal is
most likely accomplished by the spiney flowerheads clinging to the fur
of larger mammals or via mud containing seeds stuck to birds that visit
these wetlands (pers. comm. with E. Bauder 2004)
Habitats That Are Representative of the Historic Geographical and
Ecological Distribution of the Species
The distribution of Navarretia fossalis ranges from northwestern
Los Angeles County and western Riverside County, south through coastal
San Diego County, California to northwestern Baja California, Mexico
(Day 1993; Munz 1974; Reiser 2001, CNPS 2001; CNDDB 2003). One
population has been reported from San Luis Obispo County, however, the
identification of this population is thought to be in error (pers.
comm. with Spencer 2004). Fewer
[[Page 60115]]
than 45 populations exist in the United States (CNDDB 2004). Nearly 60
percent of the known populations are concentrated in three locations:
Otay Mesa in southern San Diego County, along the San Jacinto River in
western Riverside County, and near Hemet in Riverside County (Service
1998). In Mexico, N. fossalis is known from fewer than 10 populations
clustered in three areas: Along the international border, on the
plateaus south of the Rio Guadalupe, and on the San Quintin coastal
plain (Moran 1977).
Pursuant to our regulations, we are required to identify the
primary constituent elements essential to the conservation of
Navarretia fossalis, together with a description of proposed critical
habitat. In identifying primary constituent elements, we used the best
available scientific data. The physical ranges described in the primary
constituent elements may not capture all of the variability that is
inherent in natural systems that support N. fossalis. The primary
constituent elements determined essential to the conservation of N.
fossalis are:
(1) Vernal pool, alkali grassland, alkali playa, or alkali sink
habitats, at elevations between sea level and 4,250 ft (1,300 m), and
on flat to gently sloping terrain.
(2) Clay soils that retain water for sufficient amounts of time,
especially in the winter and spring months, to support vernal pool,
alkali grassland, alkali playa, or alkali sink habitats; and
(3) Watershed area immediately surrounding vernal pool, alkali
grassland, alkali playa, or alkali sink habitats with hydrology
necessary to maintain these specialized habitats.
Description of Essential Habitat
The majority of extant populations of Navarretia fossalis exist in
the United States (CNDDB 2004), and are concentrated in three
locations: Otay Mesa in southern San Diego County, along the San
Jacinto River in western Riverside County, and near Hemet in Riverside
County (Service 1998). We have determined that 26 areas totaling
approximately 31,086 ac (12,580 ha) are essential to the conservation
of the species. Seventeen of these areas essential to the conservation
of the N. fossalis, totaling approximately 26,785 ac (10,839 ha), are
not included in (pursuant to section 4(a)(3)) or are excluded from
(pursuant to section 4(b)(2)) proposed critical habitat: Lands on
Marine Corps Air Station Miramar (MCAS, Miramar); ``mission-critical''
training areas on Marine Corps Base, Camp Pendleton (Camp Pendleton);
areas within approved subareas of San Diego Multiple Species
Conservation Program (MSCP); and areas within the approved Western
Riverside Multiple Species Habitat Conservation Plan (MSHCP). Where
appropriate, these areas are described briefly in the unit descriptions
in the Proposed Critical Habitat Designation section. They are also
shown on the maps in the Proposed Regulation Promulgation section.
Military lands not included in the proposal pursuant to section 4(a)(3)
are shown on the maps for information purposes only.
All areas of essential habitat for N. fossalis in the Western
Riverside County Management Area occur within the Western Riverside
MSHCP area, and, therefore, have been excluded from proposed critical
habitat pursuant to section 4(b)(2) of the Act. These six areas are in
the vicinity of Perris, Hemet, Lake Elsinore, and Temecula. The six
areas are shown on a map in the Proposed Regulation Promulgation
section.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the areas
determined to be essential for conservation may require special
management considerations or protection. Many of the sites where
Navarretia fossalis occur require special management and protection.
Habitat destruction and loss is the greatest threat to this species
(CNDDB 2004), followed by disruption of natural hydrologic regimes that
support populations of N. fossalis. Projects that occur adjacent to or
distant from the location of a population of N. fossalis can alter the
hydrology and thereby impact the fitness of the population (Service
1998). In some locations encroachment of exotic plants pose a threat to
N. fossalis; special management is needed to limit this threat (Bramlet
1996; Service 1998).
Proposed Critical Habitat Designation
Proposed critical habitat includes Navarretia fossalis essential
habitat in Los Angeles and San Diego Counties, California. Areas
proposed as critical habitat are under Federal, State, local, and
private ownership. The approximate area of proposed critical habitat by
county and land ownership is shown in Table 1. Certain lands that are
considered essential to Navarretia fossalis have not been included or
have been excluded from proposed critical habitat based on our 4(a)(3)
and 4(b)(2) analyses; these are summarized in Table 2.
Table 1.--Approximate Proposed Critical Habitat Area (Acres(ac); Hectares (ha) for Navarretia fossalis in
California by County and Land Ownership.
[Estimates reflect the total area within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
County Federal* Private Total
----------------------------------------------------------------------------------------------------------------
Los Angeles.......................... 0 ac 596 ac 596 ac
(0 ha) (241 ha) (241 ha)
Riverside............................ (**) (**) (**)
San Diego............................ 178 ac 3,527 ac 3,705 ac
(72 ha) (1,427 ha) (1,499 ha)
--------------------------
Total................................ 178 ac 4,123 ac 4,301 ac
(72 ha) (1,669 ha) (1,741 ha)
----------------------------------------------------------------------------------------------------------------
* Federal lands include Department of Defense and other Federal land.
** Not Applicable because all lands in Riverside County that are essential for Navaretia fossalis are excluded
under 4(b)(2) of the Act.
[[Page 60116]]
Table 2.--Approximate Essential Habitat, Excluded Essential Habitat, and
Proposed Critical Habitat (Acres (ac); hectares (ha) for Navarretia
fossalis in Los Angeles, San Diego, and Riverside Counties, California
------------------------------------------------------------------------
------------------------------------------------------------------------
Total essential habitat identified for 31,086 ac
Navarretia fossalis. (12,580 ha)
Essential habitat not included in the 774 ac
proposed critical habitat designation (3,313 ha)
pursuant to section 4(a)(3) of the Act
due to an INRMP that benefits Navarretia
fossalis (Marine Corps Air Station
(MCAS), Miramar).
Essential habitat excluded from the 25,944 ac
proposed critical habitat designation (10,499 ha)
pursuant to section 4(b)(2) of the Act:
Completed and pending HCPs (San Diego
Multiple Species Conservation Program
(MSCP) and Western Riverside County
Multiple Species Habitat Conservation
Plan (MSHCP)).
Essential habitat excluded from the 67 ac
proposed critical habitat designation (27 ha)
pursuant to section 4(b)(2) of the Act:
``Mission-critical'' Department of
Defense lands (Marine Corps Base (MCB),
Camp Pendleton).
Total essential habitat excluded from 26,785 ac
proposed critical habitat. (10,839 ha)
Total essential habitat proposed as 4,301 ac
critical habitat. (1,741 ha)
------------------------------------------------------------------------
Lands proposed as critical habitat are divided into five units
(Units 1 through 5) based on the Management Areas in which the species
occurs as identified in the Recovery Plan (Service 1998). Units 1, 4,
and 5 were further divided into subunits (1A, 1B, 4A, 4B, 4C, 4D, 4E,
5A, 5B, 5C, 5D) based on their geographical location. Unit boundaries
were delineated based on geographical location of vernal pools, soil
types, associated watersheds, and local variation of topographic
position (i.e., coastal mesas, inland valley). Descriptions of each
unit and the reasons for proposing lands within each unit as critical
habitat are presented below.
Unit 1 (Subunits 1A, 1B): Transverse Range Critical Habitat Unit, Los
Angeles County, California (596 ac (241 ha))
The occurrences of Navarretia fossalis in northern Los Angeles
County represent isolated occurrences at the northern most extent of
the range of the species. Conservation biologists have demonstrated
that populations at the edge of a species' distribution can be
important sources of genetic variation and represent the best
opportunity for colonization or re-colonization (Gilpin and
Soul[eacute] 1986; Lande 1999). Although the populations of N. fossalis
in Los Angeles County are far removed from other known locations, these
pools are possible sources of unique genetic information that will aid
this species in its ability to adapt to future changes in the
environment. Such characteristics may not be present in other parts of
the species' range (Lesica and Allendorf 1995). For these reasons the
unit is essential to the conservation of the species.
The proposed Transverse Range Critical Habitat Unit encompasses 596
ac (241 ha) within the Transverse Management Area as identified in the
Recovery Plan, and includes the occupied vernal pools at Cruzan Mesa in
Los Angeles County (Service 1998). Navarretia fossalis also occurs in a
vernal pool in nearby Plum Canyon. Vernal pools at both sites are
currently under private ownership. These vernal pools are the last
remaining vernal pools in Los Angeles County. The area proposed as
critical habitat in Unit 1 contains the primary constituent elements
relating to the pooling basins, watersheds, underling soil substrate
and topography associated with occupied vernal pools at Cruzan Mesa and
Plum Canyon in Los Angeles County.
Unit 2: San Diego North Coastal Mesas Critical Habitat Unit, San Diego
County, California (143 ac (64 ha))
The San Diego North Coastal Mesas Critical Habitat Unit encompasses
143 ac (64 ha) within the San Diego North Coastal Mesas Management Area
as identified in the Recovery Plan and includes occupied vernal pools
on Camp Pendleton and one occupied pool complex in the City of Carlsbad
(Service 1998). Essential habitat within training areas defined by the
Department of Defense as ``mission critical'' in the Stuart Mesa area
of the Oscar One Training Area on Camp Pendleton have been excluded
from the proposed critical habitat designation pursuant to section
4(b)(2) of the Act.
Within the jurisdiction of the City of Carlsbad, one occupied
vernal pool complex is located at the Poinsettia Lane train station.
This complex is associated with a remnant of coastal terrace habitat
and is considered essential for the conservation of the species in
northern San Diego County. This pool is one of the last remaining
coastal occurrences of Navarretia fossalis outside the boundaries of
MCB Camp Pendleton. The City of Carlsbad is developing a subarea plan
as part of the Draft Multiple Habitat Conservation Program (MHCP) in
northwestern San Diego County. However, the Poinsettia Lane vernal pool
complex is not currently covered in the City of Carlsbad's draft
subarea plan. The area being proposed as critical habitat in Unit 2
contains the primary constituent elements described above relating to
the pooling basins, watersheds, underling soil substrate and topography
associated with the Poinsettia Lane vernal pool complex in the City of
Carlsbad.
Unit 3: San Diego Central Coastal Mesas Critical Habitat Unit, San
Diego County, California (143 ac (64 ha))
The San Diego Central Coast Mesas Critical Habitat Unit encompasses
143 ac (64 ha) within the San Diego Central Coast Mesas Management Area
as identified in the Recovery Plan (Service 1998), and includes
occupied vernal pools.
All four areas essential for the conservation of Navarretia
fossalis in the Central Coast Mesas Management Area are not included in
or are excluded from the proposed designation. The majority of pools in
this area are on MCAS Miramar and are managed as part of the base's
INRMP. Miramar's INRMP places vernal pools and vernal pool habitat in
management areas where vernal pool conservation is a high priority.
Therefore, areas considered essential for the conservation of N.
fossalis at Miramar MCAS have not been included in proposed critical
habitat pursuant to section 4(a)(3) of the Act.
Other pools in the Central Coast Mesas Management Area are included
in the San Diego MSCP. This plan details a policy of ``no-net-loss''
for vernal pools (City of San Diego 1997). There is currently an effort
to develop a management plan for vernal pools within the MSCP that
provides conservation benefit to N. fossalis. Areas considered
essential for the conservation of N. fossalis within the MSCP are being
excluded from
[[Page 60117]]
proposed critical habitat pursuant to section 4(b)(2) of the Act. The
area being proposed as critical habitat in Unit 3 contains the primary
constituent elements described above relating to the pooling basins,
watersheds, underling soil substrate and topography associated with
occupied vernal pools.
Unit 4 (Subunits 4A, 4B, 4C, 4D & 4E): San Diego Inland Valleys
Critical Habitat Unit, San Diego County, California (3,027 ac (1,225
ha))
The San Diego Inland Valleys Critical Habitat Unit encompasses
3,027 ac (1,225 ha) within the San Diego Inland Valleys Management Area
as identified in the Recovery Plan (Service 1998). The five subunits
proposed as critical habitat for Navarretia fossalis contain one or
more occupied vernal pool complexes within the jurisdiction of the City
of San Marcos and the community of Ramona.
In the community of Ramona, one of the complexes is within the
boundaries of Ramona Airport. These vernal pool complexes are isolated
from maritime influence and are representative of vernal pools
associated with alluvial or volcanic type soils (Keeler-Wolf et al.
1998; Service 1998). The vernal pools in San Marcos are associated with
native grassland and a unique association of multiple species of
Brodiaea (Service 1998). The Recovery Plan specifically identifies
these vernal pools as essential for recovery of N. fossalis because of
their role in stabilizing populations and preventing habitat loss
(Service 1998). This unit includes vernal pools within the easternmost
edge of the geographical distribution of the species. Conservation of
vernal pools in this unit will help maintain the diversity of vernal
pool habitats and their unique geological substrates, and will retain
the genetic diversity of these geographically distinct populations. The
areas being proposed as critical habitat in Unit 4 contain the primary
constituent elements described above relating to the pooling basins,
watersheds, underling soil substrate and topography associated with
occupied vernal pools.
Unit 5 (Subunits 5A, 5B, 5C & 5D): San Diego Southern Coastal Mesas
Critical Habitat Unit, San Diego County, California (392 ac (159 ha))
The San Diego Southern Coastal Mesas Critical Habitat Unit
encompasses 392 ac (159 ha) within the Southern Coastal Mesas
Management Area as identified in the Recovery Plan (Service 1998), and
contains several vernal pools and other physiavl features essential to
the conservation of Navarretia fossalis. Three of the four subunits
(5A, 5B, 5C) proposed as critical habitat contain occupied vernal
pools. The majority of the land in this unit provides the essential
watershed primary constituent element that contributes to the pooling
basins that support N. fossalis.
The majority of pools in this Unit are part of the San Diego MSCP.
There is currently an effort to develop a management plan for vernal
pools within the MSCP which will provide further conservation benefit
to N. fossalis. Areas considered essential for the conservation of
Navarretia fossalis within the MSCP have been excluded from proposed
critical habitat pursuant to section 4(b)(2) of the Act. Of the
essential locations, only the vernal pools and their watersheds that
occur on lands not protected by the MSCP are proposed as critical
habitat. The four subunits for this region include the J15 complex or
Arnie's Point and the watershed, vernal pools, and ephemeral ponds that
occur on east Otay Mesa that are in the Major and Minor Amendment Areas
of the MSCP.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.2, we define destruction or adverse
modification 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.'' We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires
Federal agencies to confer with us on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat.
Conference reports provide conservation recommendations to assist the
agency in eliminating conflicts that may be caused by the proposed
action. The conservation recommendations in a conference report are
advisory. If a species is listed or critical habitat is designated,
section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
action agency ensures that the permitted actions do not jeopardize the
continued existence of the species or destroy or adversely modify
critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
an opinion that is prepared according to 50 CFR 402.14, as if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the
[[Page 60118]]
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)).
Activities on Federal lands that may affect Navarretia fossalis or
its critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the Army Corps under section 404 of the Clean Water
Act, a section 10(a)(1)(B) permit from the Service, or some other
Federal action, including funding (e.g., Federal Highway Administration
or Federal Emergency Management Agency funding), will also continue to
be subject to the section 7 consultation process. Federal actions not
affecting listed species or critical habitat and actions on non-Federal
and private lands that are not federally funded, authorized, or
permitted do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat include those that appreciably reduce the value of critical
habitat to Navarretia fossalis. We note that such activities may also
jeopardize the continued existence of the species.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the value of critical
habitat to the listed species.
Federal agencies already consult with us on activities in areas
currently occupied by the species to ensure that their actions do not
jeopardize the continued existence of the species. These actions
include, but are not limited to:
(1) Removing, thinning, or destroying Navarretia fossalis habitat
(as defined in the primary constituent elements discussion), whether by
burning, mechanical, chemical, or other means (e.g., plowing, grubbing,
grading, grazing, woodcutting, construction, road building, mining,
mechanical weed control, herbicide application, etc.);
(2) Activities that appreciably degrade or destroy Navarretia
fossalis habitat (and its primary constituent elements) include, but
are not limited to, livestock grazing, clearing, disking, farming,
residential or commercial development, introducing or encouraging the
spread of nonnative species, off-road vehicle use, and heavy
recreational use;
(3) Activities that appreciably diminish habitat value or quality
through indirect effects (e.g., edge effects, invasion of exotic plants
or animals, or fragmentation); and
(4) Any activity, including the regulation of activities by the
Corps of Engineers under section 404 of the Clean Water Act or
activities carried out by or licensed by the Environmental Protection
Agency (EPA), that could alter watershed or soil characteristics in
ways that would appreciably alter or reduce the quality or quantity of
surface and subsurface flow of water needed to maintain Navarretia
fossalis habitat. These activities include, but are not limited to,
altering the natural fire regime either through fire suppression or by
using prescribed fires that are too frequent or poorly-timed;
development, including road building and other direct or indirect
activities; agricultural activities, livestock grazing, and vegetation
manipulation such as clearing or grubbing in the watershed upslope from
Navarretia fossalis.
(5) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities, or any activity funded or
carried out by the Department of Transportation or Department of
Agriculture that could result in discharge of dredged or fill material,
excavation, or mechanized land clearing of Navarretia fossalis habitat;
(6) Licensing of construction of communication sites by the Federal
Communications Commission or funding of construction or development
activities by the U.S. Department of Housing and Urban Development that
could result in discharge of dredged or fill material, excavation, or
mechanized land clearing of Navarretia fossalis habitat; and
(7) Funding and implementation of disaster relief projects by the
FEMA and the Natural Resource Conservation Service's Emergency
Watershed Program, including erosion control, flood control, and stream
bank repair to reduce the risk of loss of property that could result in
discharge of dredged or fill material, excavation, or mechanized land
clearing of Navarretia fossalis habitat or that could alter watershed
or soil characteristics in ways that would appreciably alter or reduce
the quality or quantity of surface and subsurface flow of water needed
to maintain Navarretia fossalis habitat.
All lands proposed as critical habitat are within the geographical
area occupied by the species and are essential for the conservation of
Navarretia fossalis. Federal agencies already consult with us on
actions that may affect N. fossalis to ensure that their actions do not
jeopardize the continued existence of the species. Thus, we do not
anticipate substantial additional regulatory protection will result
from critical habitat designation.
Exclusions Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact of specifying any
particular area as critical habitat. An area may be excluded from
critical habitat if it is determined that the benefits of exclusion
outweigh the benefits of specifying a particular area as critical
habitat, unless the failure to designate such area as critical habitat
will result in the extinction of the species.
In our critical habitat designations, we have used the provisions
outlined in section 4(b)(2) of the Act to evaluate lands essential to
the conservation of the subject species for possible exclusion from
proposed critical habitat. Lands which we have either excluded from or
not included in critical habitat based on those provisions include
those covered by: (1) Legally operative HCPs that cover the species and
provide assurances that the conservation measures for the species will
be implemented and effective; (2) draft HCPs that cover the species,
have undergone public review and comment, and provide assurances that
the conservation measures for the species will be implemented and
effective (i.e., pending HCPs); (3) Tribal conservation plans that
cover the species and provide assurances that the conservation measures
for the species will be implemented and effective; (4) State
conservation plans that provide assurances that the conservation
measures for the species will be implemented and effective; and (5)
Service National Wildlife Refuge System
[[Page 60119]]
Comprehensive Conservation Plans that provide assurances that the
conservation measures for the species will be implemented and
effective.
Relationship of Critical Habitat to Approved Habitat Conservation Plans
Regional HCPs
As described above, section 4(b)(2) of the Act requires us to
consider other relevant impacts, in addition to economic and national
security impacts, when designating critical habitat. Section
10(a)(1)(B) of the Act authorizes us to issue permits for the take of
listed wildlife species incidental to otherwise lawful activities.
Development of an HCP is a prerequisite for the issuance of an
incidental take permit pursuant to section 10(a)(1)(B) of the Act. An
incidental take permit application must be augmented by an HCP that
identifies implementable conservation measures to implement for the
species to minimize and mitigate the impacts of the permitted
incidental take.
Some areas occupied by Navarretia fossalis involve complex HCPs
that address multiple species, cover large areas, and have many
participating permittees. Many of the large regional HCPs in southern
California have been, or are being, developed to provide for the
voluntary and cooperative conservation of numerous federally listed
species and rare species and their habitat. Over time, areas in the
planning area are addressed per the HCP, and key areas are acquired,
managed, and monitored. These HCPs are designed to implement
conservation actions to address future projects that are anticipated to
occur within the planning area of the HCP, to reduce delays in the
permitting process.
Approved regional HCPs (e.g., those sponsored by cities, counties
or other local jurisdictions) where Navarretia fossalis is addressed,
provide for the protection and management of habitat essential for the
conservation of the species while shifting development to non-essential
areas. Regional HCP development processes provide an intensive data
collection and analysis regarding habitat of N. fossalis. The process
also enables us to develop a reserve system that provides for the
biological needs and long-term conservation of the species (Schwartz
1999).
Completed HCPs and their accompanying Implementing Agreements (IA)
contain management measures and protections for identified preserve
areas that protect, restore, and enhance the value of these lands as
habitat for Navarretia fossalis. These measures include explicit
standards to minimize impacts to the addressed species and its habitat.
In general, HCPs are designed to ensure that the value of the
conservation lands are maintained, expanded, and improved for the
species that they cover.
In approving these HCPs, we have provided assurances to permit
holders that once the protection and management required under the
plans are in place and for as long as the permit holders are fulfilling
their obligations under the plans, no additional mitigation in the form
of land or financial compensation will be required of the permit
holders and in some cases, specified third parties.
Navarretia fossalis is covered under the San Diego MSCP and the
Western Riverside MSHCP. Portions of the proposed critical habitat
units warrant exclusion from the proposed designation of critical
habitat under section 4(b)(2) of the Act based on the management and
protection afforded under the approved and legally operative San Diego
MSCP subarea plans and the Western Riverside MSHCP. We have determined
that the benefits of excluding essential habitat areas within these
legally operative HCPs from the proposed critical habitat designations
will outweigh the benefits of including them.
Western Riverside Multiple Species Habitat Conservation Plan (MSHCP)
Areas of essential habitat for N. fossalis in the Western Riverside
County Management Area occur within the Western Riverside MSHCP area,
and have been excluded from proposed critical habitat pursuant to
section 4(b)(2) of the Act. The Western Riverside MSHCP was developed
over a period of eight years. Participants in this HCP include 14
cities, the County of Riverside (including the Riverside County Flood
Control and Water Conservation Agency, Riverside County Transportation
Commission, Riverside County Parks and Open Space District, and
Riverside County Waste Department), the California Department of Parks
and Recreation, and the California Department of Transportation. The
Western Riverside MSHCP is a subregional plan under the State's NCCP
and was developed in cooperation with the California Department of Fish
and Game. The MSHCP establishes a multi-species conservation program to
minimize and mitigate the expected loss of habitat values of ``covered
species'' and, with regard to covered animal species, their incidental
take. The intent of the MSHCP is to provide avoidance, minimization,
and mitigation measures for the impacts of proposed activities on
covered species and their habitats. Within the 1,260,000 ac (510,000
ha) Plan Area of the MSHCP, approximately 153,000 ac (62,000 ha) of
diverse habitats are to be conserved. The proposed conservation of
153,000 ac (62,000 ha) will complement other existing natural and open
space areas (e.g., State Parks, Forest Service, and County Park Lands).
Navarretia fossalis is a covered species under the MSHCP. The MSHCP has
five objectives to conserve and monitor Navarretia fossalis
populations: (1) To include within the MSHCP conservation area at least
6,900 ac of suitable habitat; (2) include within the MSHCP conservation
area at 13 of the known locations of the species at Skunk Hollow, the
Santa Rosa Plateau, the San Jacinto Wildlife Area, floodplains of the
San Jacinto River from the Ramona Expressway to Railroad Canyon, and
upper Salt Creek west of Hemet; (3) to conduct surveys for the species;
(4) to include with the MSHCP conservation area the floodplain of the
San Jacinto River consistent with Objective 1, and maintain floodplain
processes along the river to provide for the distribution of the
species to shift over time as hydrologic conditions and seed bank
sources change; and (5) to include with the MSHCP conservation area the
floodplain along Salt Creek generally in its existing condition from
Warren Road to Newport Road and the vernal pools in Upper Salt Creek
west of Hemet, and maintain floodplain processes along the river to
provide for the distribution of the species to shift over time as
hydrologic conditions and seed bank sources change.
San Diego Multiple Species Conservation Program (MSCP)
Portions of Units 3 and 5 are excluded from proposed critical
habitat because they are within the San Diego MSCP in southwestern San
Diego County. The San Diego MSCP effort encompasses approximately
582,000 ac (236,000 ha) and reflects the cooperative efforts of the
local jurisdictions, the State, the building industry, and
environmentalists. The San Diego MSCP provides for the establishment
over the permit term of approximately 171,000 ac (69,573 ha) of
preserve areas to provide conservation benefits for 85 federally listed
and sensitive species. The San Diego MSCP and approved subarea plans
provide measures to conserve Navarretia fossalis populations on Otay
Mesa. Surveys for N. fossalis are required in suitable habitat (i.e.,
vernal pools, ephemeral
[[Page 60120]]
wetlands, and seasonally ponded areas). These lands are to be
permanently maintained and managed for the benefit of N. fossalis and
other covered species. The eastern portion of Otay Mesa includes Major
and Minor Amendment Areas. These areas require a special permitting
process; therefore, we included them in this critical habitat proposal.
Other Regional NCCPs and HCPs
There are other regional NCCP/HCP efforts under way in southern
California that have not yet been completed but which, upon approval,
will provide conservation benefits to Navarretia fossalis. Lands within
these HCPs are not excluded from consideration for proposed critical
habitat. The Draft Multiple Habitat Conservation Program (MHCP) in
northwestern San Diego County includes approximately 112,000 ac (45,324
ha) within the study area. Currently, seven cities are participating in
the development of the MHCP: Carlsbad, Encinitas, Escondido, San
Marcos, Oceanside, Vista, and Solana Beach. Coverage for N. fossalis
has not yet been determined for this plan and, therefore, we propose
critical habitat within the planning area.
(1) Benefits of Inclusion. The principal effect of designated
critical habitat is that federally funded or authorized activities
within critical habitat may require consultation under section 7 of the
Act. Consultation ensures that action entities avoid adverse
modification of critical habitat. Currently approved and permitted HCPs
and NCCP/HCPs ensure the long-term survival of addressed species. HCPs
or NCCP/HCPs and IAs include management measures and protections for
conservation lands designed to protect, restore, and enhance their
value as habitat for covered species and thus provide benefits to the
species well in excess of those that would result from a critical
habitat designation.
(2) Benefits of Exclusion. The benefits of excluding lands within
HCPs from critical habitat designation include carrying out the
assurances provided by the Service to landowners, communities, and
counties in return for their voluntary adoption of the HCP, including
relieving them of the additional regulatory burden that might be
imposed by critical habitat. Many HCPs become the basis for regional
conservation plans consistent with the recovery objectives for listed
species covered within the plan area. Many of these HCPs provide
conservation benefits to unlisted, rare species. Imposing additional
regulatory review after an HCP is completed solely as a result of the
designation of critical habitat may undermine conservation efforts and
partnerships in many areas. In fact, it could result in the loss of
species' benefits if participants abandon the voluntary HCP process
because it may result in an additional regulatory burden requiring more
of them than of other parties who have not voluntarily participated in
species conservation. Designation of critical habitat within the
boundaries of approved HCPs it is likely to be viewed as a disincentive
to those entities currently developing HCPs or contemplating them in
the future.
A related benefit of excluding lands within HCPs from critical
habitat designation is the continued ability by the Service to seek new
partnerships. These may include future HCP participants, such as
States, counties, local jurisdictions, conservation organizations, and
private landowners. These entities together may implement conservation
actions that we would be unable to accomplish otherwise.
An HCP or NCCP/HCP application must undergo section 7 consultation.
While this consultation does not address adverse modification to
critical habitat, it will determine if the HCP jeopardizes the species
in the plan area. Federal actions not covered by the HCP, but in areas
occupied by listed species, still require consultation under section 7
of the Act. HCPs and NCCP/HCPs typically provide greater conservation
benefits to an addressed listed species than section 7 consultations
because HCPs and NCCP/HCPs assure the long-term protection and
management of a covered species and its habitat, and funding for such
management through the standards found in the 5-Point Policy for HCPs
(64 FR 35242). Such assurances are typically not provided by ordinary
section 7 consultations which are limited to requiring that the
specific action being consulted upon not jeopardize the continued
existence of the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion. The
San Diego MSCP in southwestern San Diego County and the Western
Riverside MSHCP both include Navarretia fossalis as a covered species.
HCPs and NCCP/HCPs provide protection for N. fossalis and its
associated habitat by securing the land where this plant occurs and
developing a management plan for vernal pool ecosystems. The
educational benefits of critical habitat, including informing the
public of areas that are essential for the long-term survival and
conservation of the species, are still accomplished from material
provided on our Web site and through public notice and comment
procedures required to establish an HCP or NCCP/HCP. We have also
received input from the public through the public participation that
occurs in the development of many regional HCPs or NCCP/HCPs. For these
reasons, we believe proposing critical habitat has little additional
benefit in areas covered by HCPs, provided that the HCP or NCCP/HCP
specifically and adequately covers the species for which critical
habitat is being proposed. We do not believe that this exclusion would
result in the extinction of the species because the essential habitat
within these HCPs will be conserved, and we have already consulted on
these HCPs under section 7 of the Act.
Relationship to Department of Defense Lands
The Sikes Act Improvements Act of 1997 (Sikes Act) requires each
military installation that includes land and water suitable for the
conservation and management of natural resources to complete, by
November 17, 2001, an Integrated Natural Resources Management Plan
(INRMP). An INRMP integrates implementation of the military mission of
the installation with stewardship of the natural resources found there.
INRMPs include an assessment of the ecological needs on the
installation, including needs to provide for the conservation of listed
species; a statement of goals and priorities; a description of
management actions to be implemented to provide for these ecological
needs; a monitoring plan, and an adaptive management plan.
Section 318 of the National Defense Authorization Act for Fiscal
Year 2004 (Public Law 108-136) amended the Endangered Species Act to
address the relationship of INRMPs to critical habitat by adding a new
section 4(a)(3)(B). This provision prohibits the Service from
designating as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an INRMP prepared under section 101 of the
Sikes Act (16 U.S.C. 670a), if the Secretary of the Interior determines
in writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation. MCAS Miramar has an INRMP
in place that provides a benefit for Navarretia fossalis. Camp
Pendleton has an INRMP in place that provides a framework for managing
natural resources.
Marine Corps Air Station Miramar
MCAS Miramar completed a final INRMP in May 2000 that provides a
benefit to Navarretia fossalis. MCAS
[[Page 60121]]
Miramar has identified management areas with different resource
conservation requirements and management concerns, and identifies them
with five separate levels that correspond to their sensitivity. The
majority of vernal pools and habitats that support vernal pool species,
including the single known occurrence of N. fossalis, are located in
``Level I Management Areas (MAs).'' Preventing damage to vernal pool
resources is the highest conservation priority in Management Areas with
the ``Level I'' designation. The conservation of vernal pools in this
MA is achieved through education of base personnel, proactive measures
to avoid accidental impacts, and maintenance of an updated inventory of
vernal pool basins and the associated vernal pool watersheds.
Since the completion of MCAS Miramar's INRMP, we have received
reports on Miramar's vernal pool monitoring and restoration program and
correspondence detailing the installation's expenditures on the
objectives outlined in its INRMP. MCAS Miramar continues to monitor and
manage its vernal pool resources; programs include a study in progress
on the effects of fire on vernal pool resources, vernal pool mapping
and species surveys, and a study of Pacific bentgrass (Agrostis
avenaceae), an invasive exotic grass found in some vernal pools on the
base. We believe this INRMP benefits this species. The pools on MCAS
Miramar which support Navarretia fossalis are considered essential for
the conservation of this species. In accordance with section 4(a)(3) of
the Act, these lands that are essential to the conservation of N.
fossalis on MCAS Miramar have not been included in the proposed
designation of critical habitat because the INRMP provides a benefit to
the species.
Marine Corps Base Camp Pendleton
Under 4(b)(2) of the Act, we have considered the effect of a
critical habitat designation on national security and have determined
that the benefits of exclusion outweigh the benefits of inclusion. We
are, therefore, not proposing critical habitat on ``mission-critical''
training areas on Camp Pendleton. In this proposal we refer to areas
designated as training areas on maps created by MCB, Camp Pendleton as
``mission-critical'' training areas.
The Marine Corps undertakes section 7 consultation of the Act for
activities that may affect federally threatened or endangered species
on Camp Pendleton. On March 30, 2000, a formal consultation was
initiated between the Marine Corps and the Fish and Wildlife Service
regarding their activities on upland areas of Camp Pendleton. The
upland consultation that addresses vernal pool habitat, Navarretia
fossalis, and other species is not yet complete. We are currently
working cooperatively with Camp Pendleton to facilitate the completion
of this consultation.
To continue its critical training mission pending completion of the
consultation, the Marine Corps has implemented measures to avoid
jeopardy of Navarretia fossalis and other listed species within the
uplands area. In particular, the Marine Corps is implementing a set of
``programmatic instructions'' to avoid adverse effects to N. fossalis.
(1) Benefits of Inclusion
The primary benefit of proposing critical habitat is to identify
lands essential to the conservation of the species which, if critical
habitat was designated, would require consultation to ensure activities
would not adversely modify critical habitat or jeopardize the continued
existence of the species. We are in formal consultation with the Marine
Corps on upland activities to ensure current and proposed actions will
not jeopardize the species' continued existence. Therefore, we do not
believe that designation of ``mission-critical'' training areas on Camp
Pendleton as critical habitat will appreciably benefit Navarretia
fossalis beyond the protection already afforded the species under the
Act. Exclusion of these lands will not result in the extinction of the
species because the conservation of N. fossalis populations will be
addressed through our uplands consultation with the Marine Corps. The
lands involved in this consultation are ``mission-critical'' training
areas, and essential populations of N. fossalis occupy them.
(2) Benefits of Exclusion
There are benefits to excluding areas on Camp Pendleton from
critical habitat designation. Essential habitat for Navarretia fossalis
within ``mission-critical'' training areas on Camp Pendleton are
occupied by the species, and Section 7 consultations have been
completed or are in progress. If essential habitat that occurs within
``mission-critical'' training areas is proposed as critical habitat,
the Marine Corps would be required to determine if activities would
adversely modify or destroy proposed critical habitat. If such a
determination was made, the Marine Corps would be compelled to
conference with us pursuant to the requirements of section 7 of the
Act.
If proposed critical habitat within training areas is included in a
final designation, the Marine Corps would likely be compelled to review
completed or in progress consultations to determine if activities may
affect designated critical habitat. If `may affect' determinations were
made, the Marine Corps would be further obligated to initiate or
reinitiate consultations with us.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We consider specific lands that provide benefits to Navarretia
fossalis essential for its conservation. For areas proposed as critical
habitat not considered ``mission-critical'' training areas or are
leased to the State of California, we will complete the balancing
analysis under section 4(b)(2) in the final rule. We have considered
and excluded lands in ``mission-critical'' training areas on Camp
Pendleton from proposed critical habitat. Maps delineating habitat for
N. fossalis, overlaid with ``mission-critical'' training areas on Camp
Pendleton, are available for public review and comment at the Carlsbad
Fish and Wildlife Office (see ADDRESSES section) or on the Internet at
http://carlsbad.fws.gov. These maps are provided to allow the public
the opportunity to adequately comment on these exclusions. We do not
believe that this exclusion would result in the extinction of the
species because the Marine Corps undertakes section 7 consultation of
the Act for activities that may affect federally threatened or
endangered species on Camp Pendleton, and because the Marine Corps has
implemented measures to avoid jeopardy of N. fossalis and other listed
species within the uplands area.
Economic Analysis
An analysis of the economic impacts of proposing critical habitat
for Navarretia fossalis is being prepared. We will announce the
availability of the draft economic analysis as soon as it is completed,
at which time we will seek public review and comment for a period not
to exceed 30 days. At that time, copies of the draft economic analysis
will be available for downloading from the Internet at http://carlsbad.fws.gov, or by contacting the Carlsbad Fish and Wildlife
Office directly (see ADDRESSES section).
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three
[[Page 60122]]
appropriate and independent specialists regarding this proposed rule.
The purpose of such review is to ensure that our critical habitat
designation is based on scientifically sound data, assumptions, and
analyses. We will send these peer reviewers copies of this proposed
rule immediately following publication in the Federal Register. We will
invite these peer reviewers to comment, during the public comment
period, on the specific assumptions and conclusions regarding the
proposed designation of critical habitat.
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days of the date of
publication of the proposal in the Federal Register. Such requests must
be made in writing and be addressed to the Field Supervisor (see
ADDRESSES section). We will schedule public hearings on this proposal,
if any are requested, and announce the dates, times, and places of
those hearings in the Federal Register and local newspapers at least 15
days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is
the description of the notice in the SUPPLEMENTARY INFORMATION section
of the preamble helpful in understanding the proposed rule? (5) What
else could we do to make this proposed rule easier to understand?
Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: [email protected].
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is
significant in that it may raise novel legal and policy issues, but it
is not anticipated to have an annual effect on the economy of $100
million or more or affect the economy in a material way. The Office of
Management and Budget (OMB) has not reviewed this rule. We are
preparing a draft economic analysis of this proposed action, and will
use the results of this analysis to meet the requirement of section
4(b)(2) of the Act to determine the economic consequences of
designating the specific areas as critical habitat and possibly
excluding any area from critical habitat if it is determined that the
benefits of such exclusion outweigh the benefits of specifying such
areas as part of the critical habitat, unless failure to designate such
area as critical habitat will lead to the extinction of Navarretia
fossalis. This analysis will also be used to determine compliance with
Executive Order 12866, Regulatory Flexibility Act, Small Business
Regulatory Enforcement Fairness Act, and Executive Order 12630.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities.
At this time, we lack the available economic information necessary
to provide an adequate factual basis for the required RFA finding.
Therefore, the RFA finding is deferred until completion of the draft
economic analysis prepared pursuant to section 4(b)(2) of the Act and
Executive Order 12866. This draft economic analysis will provide the
required factual basis for the RFA finding. Upon completion of the
draft economic analysis, we will publish a notice of availability of
the draft economic analysis of the proposed designation and reopen the
public comment period for the proposed designation. We will include
with the notice of availability, as appropriate, an initial regulatory
flexibility analysis or a certification that the rule will not have a
significant economic impact on a substantial number of small entities
accompanied by the factual basis for that determination. We have
concluded that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that we
make a sufficiently informed determination based on adequate economic
information and provides the necessary opportunity for public comment.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This proposed rule to
designate critical habitat for Navarretia fossalis is a significant
regulatory action under Executive Order 12866 in that it may raise
novel legal or policy issues, but it is not expected to significantly
affect energy supplies, distribution, or use. Therefore, this action is
not a significant energy action and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance. ''It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates
[[Page 60123]]
to a then-existing Federal program under which $500,000,000 or more is
provided annually to State, local, and tribal governments under
entitlement authority,'' if the provision would ``increase the
stringency of conditions of assistance'' or ``place caps upon, or
otherwise decrease, the Federal Government's responsibility to provide
funding'' and the State, local, or tribal governments ``lack
authority'' to adjust accordingly. At the time of enactment, these
entitlement programs were: Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care, Adoption Assistance, and
Independent Living; Family Support Welfare Services; and Child Support
Enforcement. ``Federal private sector mandate'' includes a regulation
that ``would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because all of the areas designated for
critical habitat are occupied by Navarretia fossalis and would have
required consultation if a Federal nexus was present regardless of this
critical habitat designation. As such, Small Government Agency Plan is
not required. We will, however, further evaluate this issue as we
conduct our economic analysis and revise this assessment if
appropriate.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. The designation of critical habitat affects only Federal
agency actions. The rule will not increase or decrease the current
restrictions on private property concerning take of Navarretia
fossalis. Due to current public knowledge of the species' protection,
the prohibition against take of the species both within and outside of
the designated areas, and the fact that critical habitat provides no
incremental restrictions, we do not anticipate that property values
will be affected by the proposed critical habitat designation. While
real estate market values may temporarily decline following
designation, due to the perception that critical habitat designation
may impose additional regulatory burdens on land use, we expect any
such impacts to be short term. Additionally, critical habitat
designation does not preclude development of HCPs and issuance of
incidental take permits. Owners of areas that are included in the
designated critical habitat will continue to have opportunity to use
their property in ways consistent with the survival of the N. fossalis.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State resource
agencies in California. The designation of critical habitat in areas
currently occupied by Navarretia fossalis imposes no additional
restrictions to those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The designation may have some benefit to these governments in that the
areas essential to the conservation of the species are more clearly
defined, and the primary constituent elements of the habitat necessary
to the survival of the species are specifically identified. While
making this definition and identification does not alter where and what
federally sponsored activities may occur, it may assist these local
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. This proposed rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of Navarretia fossalis.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no Tribal lands essential for the conservation of Navarretia
fossalis.
References Cited
A complete list of all references cited in this proposed rule is
available upon request from the Carlsbad Fish and Wildlife Office (see
ADDRESSES section).
[[Page 60124]]
Author
The primary authors of this notice are the staff of the Carlsbad
Fish and Wildlife Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.12(h) revise the entry for ``Navarretia fossalis''
under ``FLOWERING PLANTS'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
------------------------------------------------------ Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Navarretia fossalis............. Spreading U.S.A. (CA), Polemoniaceae--Phl T 650 17.96(a) NA
navarretia. Mexico (Baja, ox Family.
California).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.96(a), add critical habitat for Navarretia fossalis
in alphabetical order under Family Polemoniaceae to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Polemoniaceae: Navarretia fossalis (Spreading Navarretia)
(1) Critical habitat units and excluded essential habitat for
Navarretia fossalis are depicted for San Diego, Riverside and Los
Angeles Counties, California, on the maps below.
(2) The primary constituent elements of critical habitat for
Navarretia fossalis are:
(i) Vernal pool, alkali grassland, alkali playa, or alkali sink
habitats, at elevations between sea level and 4,250 ft (1,300 m), and
on flat to gently sloping terrain.
(ii) Clay soils that retain water for sufficient amounts of time,
especially in the winter and spring months, to support vernal pool,
alkali grassland, alkali playa, or alkali sink habitats.
(iii) Watershed area immediately surrounding vernal pool, alkali
grassland, alkali playa, or alkali sink habitats with hydrology
necessary to maintain these specialized habitats.
(3) Critical habitat for Navarretia fossalis does not include
existing features and structures, such as buildings, roads, aqueducts,
railroads, airport runways and buildings, other paved areas, lawns, and
other urban landscaped areas not containing one or more of the primary
constituent elements.
(4) Lands determined to be essential to the conservation of
Navarretia fossalis and that have been excluded from this proposed
designation, are described below:
(i) All essential habitat where an operational Habitat Conservation
Plan provides for the conservation of Navarretia fossalis. These lands
consist of non-federal lands within the Western Riverside Multiple
Species Habitat Conservation Plan and preserved lands in the San Diego
Multiple Species Conservation Program.
(ii) Note: Map of essential habitat for Navarretia fossalis that is
being excluded from critical habitat designation within the Western
Riverside MSHCP conservation area follows:
BILLING CODE 4310-55-P
[[Page 60125]]
[GRAPHIC] [TIFF OMITTED] TP07OC04.018
[[Page 60126]]
(5) Unit 1: Transverse Range Unit. Los Angeles County, California.
From USGS 1:24,000 quadrangle map Mint Canyon, California.
(i) Unit 1A: Land bounded by the following UTM 11 NAD27 coordinates
(E, N): 368000, 3815300; 368400, 3815300; 368400, 3815200; 368600,
3815200; 368600, 3815100; 368700, 3815100; 368700, 3814700; 368600,
3814700; 368600, 3814600; 368400, 3814600; 368400, 3814500; 368200,
3814500; 368200, 3814300; 368300, 3814300; 368300, 3813700; 368200,
3813700; 368200, 3813500; 368100, 3813500; 368100, 3813300; 368000,
3813300; 368000, 3813100; 367400, 3813100; 367400, 3813200; 367300,
3813200; 367300, 3813800; 367100, 3813800; 367100, 3813900; 366900,
3813900; 366900, 3814100; 367000, 3814100; 367000, 3814200; 367100,
3814200; 367100, 3814300; 367200, 3814300; 367200, 3814400; 367300,
3814400; 367300, 3814500; 367400, 3814500; 367400, 3814700; 367500,
3814700; 367500, 3814800; 367600, 3814800; 367600, 3814900; 367700,
3814900; 367700, 3815000; 367800, 3815000; 367800, 3815100; 367900,
3815100; 367900, 3815200; 368000, 3815200; returning to 368000,
3815300.
(ii) Unit 1B: Land bounded by the following UTM 11 NAD27
coordinates (E, N): 366000, 3813100; 366500, 3813100; 366500, 3812600;
366000, 3812600; returning to 366000, 3813100.
(iii) Note: Map of critical habitat unit 1 for Navarretia fossalis
follows:
[[Page 60127]]
[GRAPHIC] [TIFF OMITTED] TP07OC04.019
[[Page 60128]]
(6) Unit 2: San Diego, North Coastal Mesas Unit. San Diego County,
California. From USGS 1:24,000 quadrangle map Encinitas, California,
land bounded by the following UTM 11 NAD27 coordinates (E, N): 470000,
3663800; 470200, 3663800; 470200, 3663700; 470300, 3663700; 470300,
3663600; 470500, 3663600; 470500, 3663300; 470600, 3663300; 470600,
3663100; 470700, 3663100; 470700, 3662900; 470800, 3662900; 470800,
3662200; 470500, 3662200; 470500, 3662300; 470400, 3662300; 470400,
3662900; 470300, 3662900; 470300, 3663100; 470200, 3663100; 470200,
3663400; 470100, 3663400; 470100, 3663700; 470000, 3663700; returning
to 470000, 3663800.
(i) Note: Map of critical habitat unit 2 for Navarretia fossalis
follows:
(ii) (reserved)
[[Page 60129]]
[GRAPHIC] [TIFF OMITTED] TP07OC04.020
[[Page 60130]]
(7) Unit 3: San Diego, Central Coastal Mesas Unit. San Diego
County, California. From USGS 1:24,000 quadrangle map Rancho Santa Fe,
California, land bounded by the following UTM 11 NAD27 coordinates (E,
N): 485200, 3653600; 485600, 3653600; 485600, 3653200; 485700, 3653200;
485700, 3652900; 485300, 3652900; 485300, 3653000; 485200, 3653000;
485200, 3652700; 485000, 3652700; 485000, 3652800; 484700, 3652800;
484700, 3653200; 485000, 3653200; 485000, 3653500; 485200, 3653500;
returning to 485200, 3653600; excluding lands approved within the San
Diego-area Multiple Species Conservation Program, County of San Diego
Subarea Plan.
(8) Unit 4: San Diego, Inland Valleys Unit. San Diego County,
California. From USGS 1:24,000 quadrangle maps Ramona, San Marcos, and
San Pasqual, California.
(i) Unit 4A: Land bounded by the following UTM 11 NAD27 coordinates
(E, N): 481800, 3667300; 482000, 3667300; 482000, 3667100; 481800,
3667100; returning to 481800, 3667300.
(ii) Unit 4B: Land bounded by the following UTM 11 NAD27
coordinates (E, N): 482500, 3667500; 482800, 3667500; 482800, 3667300;
482600, 3667300; 482600, 3667100; 482400, 3667100; 482400, 3667000;
482200, 3667000; 482200, 3667200; 482300, 3667200; 482300, 3667400;
482500, 3667400; returning to 482500, 3667500.
(iii) Unit 4C: Land bounded by the following UTM 11 NAD27
coordinates (E, N): 481600, 3666800; 481900, 3666800; 481900, 3666700;
482100, 3666700; 482100, 3666500; 482000, 3666500; 482000, 3666300;
481900, 3666300; 481900, 3666100; 482000, 3666100; 482000, 3665900;
481900, 3665900; 481900, 3665800; 481700, 3665800; 481700, 3665900;
481600, 3665900; 481600, 3666100; 481400, 3666100; 481400, 3666300;
481800, 3666300; 481800, 3666400; 481600, 3666400; 481600, 3666500;
481500, 3666500; 481500, 3666600; 481600, 3666600; returning to 481600,
3666800.
(iv) Unit 4D: Land bounded by the following UTM 11 NAD27
coordinates (E, N): 482800, 3666600; 483000, 3666600; 483000, 3666400;
482800, 3666400; returning to 482800, 3666600.
(v) Unit 4E: Land bounded by the following UTM 11 NAD27 coordinates
(E, N): 508400, 3657000; 509000, 3657000; 509000, 3656200; 509300,
3656200; 509300, 3656000; 509800, 3656000; 509800, 3655500; 509500,
3655500; 509500, 3655000; 509300, 3655000; 509300, 3653700; 509600,
3653700; 509600, 3653800; 509700, 3653800; 509700, 3653900; 509800,
3653900; 509800, 3654000; 509900, 3654000; 509900, 3654100; 510000,
3654100; 510000, 3654200; 510100, 3654200; 510100, 3654300; 510200,
3654300; 510200, 3654400; 510300, 3654400; 510300, 3654500; 510400,
3654500; 510400, 3654600; 510500, 3654600; 510500, 3654800; 511300,
3654800; 511300, 3655100; 511200, 3655100; 511200, 3655400; 511400,
3655400; 511400, 3655300; 511500, 3655300; 511500, 3655100; 511600,
3655100; 511600, 3655200; 511800, 3655200; 511800, 3655000; 511700,
3655000; 511700, 3654800; 511600, 3654800; 511600, 3654700; 511900,
3654700; 511900, 3654500; 512000, 3654500; 512000, 3654600; 512200,
3654600; 512200, 3654700; 512300, 3654700; 512300, 3654800; 512500,
3654800; 512500, 3654900; 512700, 3654900; 512700, 3654800; 512600,
3654800; 512600, 3654400; 512500, 3654400; 512500, 3654300; 512000,
3654300; 512000, 3653900; 511900, 3653900; 511900, 3653800; 511700,
3653800; 511700, 3654500; 510800, 3654500; 510800, 3654400; 510700,
3654400; 510700, 3654200; 510500, 3654200; 510500, 3654100; 510400,
3654100; 510400, 3654000; 510300, 3654000; 510300, 3653900; 510200,
3653900; 510200, 3653800; 510100, 3653800; 510100, 3653700; 510000,
3653700; 510000, 3653600; 510200, 3653600; 510200, 3653400; 510100,
3653400; 510100, 3653200; 510500, 3653200; 510500, 3653000; 509000,
3653000; 509000, 3654000; 508500, 3654000; 508500, 3654200; 506500,
3654200; 506500, 3654500; 505500, 3654500; 505500, 3654700; 504400,
3654700; 504400, 3654800; 504000, 3654800; 504000, 3655000; 505000,
3655000; 505000, 3655900; 505500, 3655900; 505500, 3655700; 506000,
3655700; 506000, 3655600; 506800, 3655600; 506800, 3656400; 506900,
3656400; 506900, 3656600; 507200, 3656600; 507200, 3656500; 507400,
3656500; 507400, 3656600; 507900, 3656600; 507900, 3656700; 508000,
3656700; 508000, 3656900; 508400, 3656900; returning to 508400,
3657000.
(vi) Note: Map of critical habitat units 3-4 for Navarretia
fossalis follows:
[[Page 60131]]
[GRAPHIC] [TIFF OMITTED] TP07OC04.021
[[Page 60132]]
(9) Unit 5: San Diego, Southern Coastal Mesas Unit. San Diego
County, California. From USGS 1:24,000 quadrangle maps Imperial Beach,
Jamul Mountains, and Otay Mesa, California.
(i) Unit 5A: Land bounded by the following UTM 11 NAD27 coordinates
(E, N): 501000, 3616800; 501200, 3616800; 501200, 3616600; 501300,
3616600; 501300, 3616400; 501400, 3616400; 501400, 3616100; 501200,
3616100; 501200, 3615800; 501000, 3615800; 501000, 3615700; 500800,
3615700; 500800, 3616200; 501000, 3616200; 501000, 3616400; 501100,
3616400; 501100, 3616600; 500900, 3616600; 500900, 3616500; 500800,
3616500; 500800, 3616400; 500600, 3616400; 500600, 3616300; 500400,
3616300; 500400, 3616200; 500300, 3616200; 500300, 3616400; 500200,
3616400; 500200, 3616500; 500500, 3616500; 500500, 3616700; 501000,
3616700; returning to 501000, 3616800; excluding lands approved within
the San Diego Multiple Species Conservation Program.
(ii) Unit 5B: Land bounded by the following UTM 11 NAD27
coordinates (E, N): 500000, 3608000; 500200, 3608000; 500200, 3607600;
499900, 3607600; 499900, 3607700; 499600, 3607700; 499600, 3607900;
500000, 3607900; returning to 500000, 3608000; excluding lands approved
within the San Diego Multiple Species Conservation Program.
(iii) Unit 5C: Land bounded by the following UTM 11 NAD27
coordinates (E, N): 506700, 3606800; 506900, 3606800; 506900, 3606500;
507000, 3606500; 507000, 3606300; 506900, 3606300; 506900, 3606000;
506700, 3606000; 506700, 3606100; 506600, 3606100; 506600, 3606300;
506500, 3606300; 506500, 3606600; 506700, 3606600; returning to 506700,
3606800; excluding lands approved within the San Diego Multiple Species
Conservation Program.
(iv) Unit 5D: Land bounded by the following UTM 11 NAD27
coordinates (E, N): 499500, 3601300; 500400, 3601300; 500400, 3600600;
499700, 3600600; 499700, 3600500; 499500, 3600500; returning to 499500,
3601300; excluding lands approved within the San Diego-area Multiple
Species Conservation Program, City of San Diego Subarea Plan.
(v) Note: Map of critical habitat unit 5 for Navarretia fossalis
follows:
[[Page 60133]]
[GRAPHIC] [TIFF OMITTED] TP07OC04.022
[[Page 60134]]
Dated: October 1, 2004.
Julie MacDonald,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-22541 Filed 10-6-04; 8:45 am]
BILLING CODE 4310-55-C