[Federal Register Volume 70, Number 197 (Thursday, October 13, 2005)]
[Rules and Regulations]
[Pages 59952-59974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20146]
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Part VI
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Atriplex coronata var. notatior (San Jacinto Valley
crownscale); Final Rule
Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 /
Rules and Regulations
[[Page 59952]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ11
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Atriplex coronata var. notatior (San Jacinto
Valley crownscale)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), herein
address the designation of critical habitat for Atriplex coronata var.
notatior (San Jacinto Valley crownscale) pursuant to the Endangered
Species Act of 1973, as amended (Act). We are designating zero acres of
critical habitat for A. coronata var. notatior. We identified 15,232
acres (ac) (6,167 hectares (ha)) of habitat with features essential to
the conservation of this taxon. However, all habitat with essential
features for this taxon is located either within our estimate of the
areas to be conserved and managed by the approved Western Riverside
MSHCP on existing Public/Quasi-Public Lands (PQP) lands, or within
areas where the MSHCP will ensure that future projects will not
adversely alter essential hydrological processes, and therefore is
excluded from critical habitat under section 4(b)(2) of the Act.
DATES: This rule becomes effective on November 14, 2005.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours, at
the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road,
Carlsbad, CA 92011 (telephone 760/431-9440). The final rule, economic
analysis, and maps will also be available via the Internet at http://carlsbad.fws.gov/SJVCDocs.htm.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and
Wildlife Office, at the above address, (telephone 760/431-9440;
facsimile 760/431-9624).
SUPPLEMENTARY INFORMATION:
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. 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 473 species, or 38 percent
of the 1,253 listed species in the U.S. under the jurisdiction of the
Service, have designated critical habitat.
We address the habitat needs of all 1,253 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
that it is these measures that may make the difference between
extinction and survival for many species.
We note, however, that two courts found our definition of adverse
modification to be invalid (March 15, 2001, decision of the United
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish
and Wildlife Service et al., F.3d 434, and the August 6, 2004, Ninth
Circuit judicial opinion, Gifford Pinchot Task Force v. United States
Fish and Wildlife Service). On December 9, 2004, the Director issued
guidance to be used in making section 7 adverse modification
determinations.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
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). 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 subject of this final rule. For more information on
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the biology, ecology, and distribution of this taxon, refer to the
proposed listing rule published in the Federal Register on December 15,
1994 (59 FR 64812), the final listing rule published in the Federal
Register on October 13, 1998 (63 FR 54975), and the proposed critical
habitat rule published in the Federal Register on October 6, 2004 (69
FR 59844).
Previous Federal Actions
Please see the final rule listing Atriplex coronata var. notatior
as endangered for a description of previous Federal actions through
October 13, 1998 (63 FR 54975). At the time of the final listing rule,
the Service determined designation of critical habitat 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 Atriplex coronata
var. notatior (CBD, et al. v. Norton, No. 01-CV-2101 (S.D. Cal.)). A
second lawsuit asserting the same challenge was filed against DOI and
the Service 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 remand the critical habitat
determinations to the Service 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 A. coronata var. notatior,
if prudent, on or before January 30, 2004. In a motion to modify the
July 1, 2002 order, the DOI and the Service requested that the due date
for the proposed and final rules for A. coronata var. notatior be
extended until October 1, 2004 and October 1, 2005, respectively. This
motion was granted on September 9, 2003. The proposed rule was signed
September 30, 2004 and published in the Federal Register October 6,
2004 (69 FR 59844). This final rule complies with the court's ruling.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for Atriplex coronata var. notatior and
on the draft economic analysis of the proposed designation during two
comment periods. We also contacted appropriate Federal, State, and
local agencies; scientific organizations; and other interested parties
and invited them to comment on the proposed rule and the draft economic
analysis.
During the comment period that opened on October 6, 2004, and
closed December 6, 2004, we received 5 comment letters directly
addressing the proposed critical habitat designation: 3 from peer
reviewers, and 2 from organizations or individuals. During the comment
period that opened on August 31, 2005, and closed on September 15,
2005, we received 6 comment letters directly addressing the proposed
critical habitat designation and the draft economic analysis: 3 were
from a peer reviewer, and 3 were from organizations. One commenter
supported our decision not to designate critical habitat for Atriplex
coronata var. notatior and five opposed our decision. Comments received
were grouped into 18 general issues specifically relating to the
proposed critical habitat designation for A. coronata var. notatior,
and are addressed in the following summary and incorporated into the
final rule as appropriate. We did not receive any requests for a public
hearing. We reviewed all comments received from the peer reviewers and
the public for substantive issues and new information regarding
critical habitat for A. coronata var. notatior. All comments are
addressed in the following summary and incorporated into the final rule
as appropriate.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from three knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from all three
peer reviewers. The peer reviewers were generally supportive of the
designation of critical habitat. However, they did not support the
exclusion of critical habitat for Atriplex coronata var. notatior based
on the presence of an existing habitat conservation plan (HCP).
Peer Reviewer Comments on the Proposed Rule
1. Comment: The three peer reviewers submitted 26 comments on how
to: reduce the redundancy and length of the rule; edit punctuation,
wording, and terminology: and incorporate citations to help the rule be
more clear and succinct.
Our Response: We have incorporated these comments into the final
rule as appropriate.
2. Comment: The three peer reviewers submitted 38 comments on
Atriplex coronata var. notatior and the Western Riverside MSHCP. These
comments emphasized the importance of including in the final rule a
clear, detailed explanation of the Western Riverside MSHCP, its
associated Implementing Agreement (IA), the Service's formal section 7
consultation for the MSHCP, and the Service's responsibilities and
authority under the MSHCP as they relate to A. coronata var. notatior.
Our Response: We appreciate the peer reviewers' concerns regarding
the MSHCP and its associated documents, and we have incorporated
detailed information on these as they relate to Atriplex coronata var.
notatior under the section titled ``Relationship of Critical Habitat to
the Western Riverside Multiple Species Habitat Conservation Plan.'' The
MSHCP and its associated IA are available via the Internet at http://rcip.org/conservation.htm, and the Service's formal section 7
consultation and Conceptual Reserve Design map are available via the
Internet at http://www.fws.gov/pacific/carlsbad/WRV_MSHCP_BO.htm.
3. Comment: The three peer reviewers submitted 12 comments that
disagreed with our decision to exclude critical habitat based on the
presence of an existing habitat conservation plan. Specific comments
included: (1) The statement that the Service had failed to provide an
adequate basis for the exclusion of lands from critical habitat; (2)
that our decision to exclude lands from critical habitat based on the
MSHCP's ability to protect the taxon's habitat was not adequately
supported; and (3) that not all agencies are signatory to the MSHCP and
therefore critical habitat should be identified for those projects and
agencies operating outside the MSHCP.
Our Response: Section 4(b)(2) of the Act allows us to consider 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 an area
as critical habitat will result in the extinction of the species. We
have determined that benefits of exclusion of areas covered by the
Western Riverside MSHCP outweigh the benefits of inclusion, and have
included a more detailed analysis of the benefits of the MSHCP in this
final rule
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under the section titled ``Exclusions Under Section 4(b)(2) of the
Act''.
4. Comment: The three peer reviewers submitted four comments that
disagreed with the Service's statement in the rule that designation of
critical habitat provides little additional protection to species (see
SUPPLEMENTARY INFORMATION section above). Concern was expressed that a
critical habitat proposal was not the appropriate venue for a
discussion of the resource and procedural difficulties in designating
critical habitat. It was suggested that critical habitat could be used
as a tool to manage or end threats to the species, such as manure
dumping. Additionally, it was suggested that the designation of
critical habitat would give more recognition and attention to the
habitat of Atriplex coronata var. notatior.
Our Response: As discussed in the SUPPLEMENTARY INFORMATION section
and other sections of this and other critical habitat designations, we
believe that (in most cases) various conservation mechanisms provide
greater incentives and conservation benefits than designation of
critical habitat. These include section 7 consultations, the section 4
recovery planning process, the section 9 protective prohibitions of
unauthorized take, section 6 funding to the States, the section 10
incidental take permit process, and cooperative programs with private
and public landholders and tribal nations.
While we concur that critical habitat designation can provide some
level of species protection, this can only be provided if there is a
Federal nexus for those agencies planning actions that may impact the
designated habitat. We are unaware of any Federal nexus that would
generally apply to application of soil amendments, such as the dumping
of manure.
5. Comment: Two peer reviewers submitted two comments that
disagreed with the Service's statement that the exclusion of critical
habitat based on existing HCPs offers ``unhindered, continued ability
to seek new partnerships with future HCP participants.'' They commented
that the Service should be able to continue working cooperatively with
partners on HCPs and other conservation efforts once critical habitat
has been designated, and asked that we provide further explanation of
how the designation of critical habitat may impede cooperative
conservation efforts, such as the MSHCP.
Our Response: Both HCPs and critical habitat designations are
designed to provide conservation measures to protect species and their
habitats. The advantage of seeking new conservation partnerships
(through HCPs or other means) is that they can offer active management
and other conservation measures for the habitat on a full-time and
predictable basis. Critical habitat designation only prevents adverse
modification of the habitat where there is a Federal nexus to the
modifying activity. The designation of critical habitat may remove
incentives to participate in the HCP processes, in part because of
added regulatory uncertainty, increased costs to plan development and
implementation, weakened stakeholder support, delayed approval and
development of the plan, and greater vulnerability to legal challenge.
We have in the past received direct statements of intent to withdraw
from other forms of cooperative efforts beneficial to the conservation
of listed species if those landowners' property was included in pending
critical habitat designations. We work with HCP applicants to ensure
that their plans meet the issuance criteria and that the designation of
critical habitat on lands where an HCP is in development does not delay
the approval and implementation of their HCP. Additionally, HCPs offer
conservation of covered species whether or not the area is designated
as critical habitat.
6. Comment: The three peer reviewers submitted five comments that
recommended that the reader be referred, under the ``Previous Federal
Actions'' section, to both the proposed listing rule published on
December 15, 1994 (59 FR 64812), which included proposed critical
habitat, and the final listing rule published on October 13, 1998 (63
FR 54975), which withdrew the 1994 critical habitat proposal due to the
severe decline of the species.
Our Response: This reference has been incorporated into the
Previous Federal Actions section above.
7. Comment: The three peer reviewers submitted four comments that
recommended that the discussion on Special Management Considerations be
expanded. Recommendations include citing specific language from the Act
to support our statement that occupied habitat may be included in
critical habitat only if the essential features thereon may require
special management or protection, and clarifying the extent and
limitations of management measures proposed under the MSHCP. The
reviewers were concerned that the MSHCP had not yet resulted in the
implementation of management actions that would address threats to the
species, such as soil chemistry alteration resulting from manure
dumping.
Our Response: In the ``Critical Habitat'' section of the proposed
rule we provided a definition of critical habitat pursuant to section
3(5)(A) of the Act. Within the ``Special Management Considerations''
section below, we have expanded our discussion to address this comment.
We have also provided a more detailed discussion of the management
measures proposed under the MSHCP (see ``Exclusions Under Section
4(b)(2) of the Act'' section).
8. Comment: Two peer reviewers submitted seven comments that
recommended that we incorporate changes into the final rule to better
address the unique status of plants under the Act, including the
limited protection plants are provided under section 9 of the Act, and
the assistance critical habitat could provide to the protection and
recovery of Atriplex coronata var. notatior.
Our Response: As stated in the ``Effects of Critical Habitat
Designation'' section of the proposed rule, 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. 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. The designation of critical habitat
would not change this. Atriplex coronata var. notatior is currently
known to occur exclusively on private lands. If occupied private lands
were designated as critical habitat, any actions with a Federal nexus
that might adversely affect the critical habitat would require a
consultation with us. However, consultation for activities (e.g.,
habitat modification) with a Federal nexus which might adversely impact
the species in occupied habitat would be required even without the
critical habitat designation. Since there is no prohibition against
take of listed plants on private lands, activities without a Federal
nexus which might adversely impact the species or its habitat would not
require consultation with us even with a critical habitat designation.
9. Comment: The three peer reviewers submitted nine comments that
stated that threats to the species were not adequately addressed in the
proposed rule. Additional threats to discuss included the following:
(1) Manure spreading which buries the seed bank, introduces vast
quantities of organic material and nutrients, and alters soil
composition and chemistry allowing for the invasion of alkali
intolerant weeds; (2) activities posed by MSHCP covered
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projects such as the State Route 79 Realignment Project, the Ramona
Expressway, and the San Jacinto River Flood Control Project; and, (3)
non-seasonal flows which may result from future development.
Our Response: We address the threats of manure spreading, MSHCP
covered projects, and non-seasonal flows in the ``Relationship of
Critical Habitat to the Western Riverside Multiple Species Habitat
Conservation Plan'' and ``Special Management Considerations or
Protections'' sections of this final rule.
10. Comment: One peer reviewer suggested expanding the discussion
of the species conservation needs to include Atriplex coronata var.
notatior's requirement for a functioning hydrologic system, both in
terms of local and riverine flooding.
Our Response: We have expanded our discussion of the reliance of
Atriplex coronata var. notatior on functioning hydrologic systems under
the ``Water and Physiological Requirements'' section of this final
rule.
11. Comment: One peer reviewer stated that restoration of plant
communities is essential to the recovery of Atriplex coronata var.
notatior, noting the Service's role in evaluating proposed efforts to
restore disturbed alkali habitats within the species range. The
reviewer suggested addressing whether critical habitat would allow
additional review of the success of restoration efforts.
Our Response: There are two ways in which restoration actions will
be accomplished for the species under the MSHCP, and the Service is
included in the review process for both. First, reserve managers are
responsible for the maintenance and enhancement of floodplain processes
of the San Jacinto River, Mystic Lake, and upper Salt Creek under the
MSHCP. We anticipate that these actions will be addressed in Reserve
Management Plans (RMPs) which are controlled and implemented through
the Reserve Management Oversight Committee (RMOC) and coordinated with
Reserve Managers. The Service is a member of the RMOC. Within 5 years
of significant acquisition of new reserve lands in a management unit,
RMPs must be submitted to the RMOC.
Second, several MSHCP policies require that if avoidance of certain
sensitive habitats and species is not feasible, to ensure adequate
replacement of lost functions and values, the MSHCP Permittee must make
a Determination of Biologically Equivalent or Superior Preservation
(DBESP) that demonstrates that a proposed action, including design
features to minimize impacts and compensation measures, will provide
equal or better conservation than avoidance of the sensitive habitats
and species. The Service has a 60-day review and comment period for any
DBESP prepared under the MSHCP. To date, two DBESPs have been submitted
that will result in restoration activities that may benefit Atriplex
coronata var. notatior (Lockhart 2004; LSA Associates Inc. 2005).
Project proponents have elected to introduce the species into restored
and created vernal pool habitat north of the upper Salt Creek
populations once initial success criteria have been met, even though
the proposed actions that resulted in impacts to vernal pool habitat
did not directly affect A. coronata var. notatior.
Finally, and more directly, the designation of critical habitat
provides only restrictions on adverse modification to that habitat
where there is a Federal nexus for the modification. It provides no
mechanism for positive conservation actions that might be beneficial to
the species, such as additional review of or increased efforts toward
restoration and recovery.
12. Comment: The three peer reviewers submitted six comments that
pointed out inherent problems with censusing an annual plant such as
Atriplex coronata var. notatior, which is only visible seasonally and
is subject to changing rainfall conditions. The reviewers believe that
population estimates provided in the proposed rule are confusing and
should be presented in context.
Our Response: Because information on this narrow endemic species is
very limited, we presented all census information we were aware of in
the 2004 proposed critical habitat rule. However, it is important to
recognize that numbers for this annual plant vary greatly in response
to changing rainfall conditions. Additionally, the seasonally-flooded
alkali vernal plain habitat which the species occupies is a very
dynamic system. Areas that are suitable for the species within this
dynamic habitat matrix change from year to year resulting in more
variation in census numbers. We have expanded our description of the
species habitat under the ``Water and Physiological Requirements'' and
``Sites for Reproduction, Germination, and Seed Dispersal'' sections of
this final rule.
13. Comment: Two peer reviewers submitted four comments that stated
that population estimates presented in the proposed rule are out of
date and conflicting information is presented on the amount of alkali
habitat available for the species. One peer reviewer has observed large
fluctuations in significant populations of the species, and attributes
impacts to heavy discing and manure dumping. This reviewer recommended
that we use current GIS capabilities to produce a single habitat model
for the species and monitor populations more frequently. Another peer
reviewer recommended that the final rule incorporate the most recent
estimates for the species which were submitted to our office by two of
the peer reviewers on January 14, 2004 (Table 2, Bramlet and White
2004).
Our Response: In our 2004 proposed critical habitat rule, we
included population and habitat estimates for the species from many
sources, including our 1998 final rule, Bramlet's 1996 estimates, and
Glenn Lukos Associates estimates from 2000. There is variation between
these estimates, which has led to confusion regarding how much suitable
habitat currently exists for the species. In addition, as discussed in
our response to comment 12 above, populations of this annual plant
fluctuate greatly from year to year. When conducting our analysis of
the MSHCP, we used current GIS capabilities to model suitable habitat
for the species. This is discussed in the ``Relationship of Critical
Habitat to the Western Riverside Multiple Species Habitat Conservation
Plan'' section of this final rule. We address impacts to the species
from manure dumping in the ``Special Management Considerations or
Protections'' section of this final rule.
Population estimates submitted by Bramlet and White (2004) are
summarized as follows: (1) San Jacinto River populations (Habitat with
Essential Features--Unit 1), 115,544 individuals, 9,141 ac (3699 ha) of
suitable habitat; (2) Upper Salt Creek populations (Habitat with
Essential Features--Unit 2), 51,996 individuals, 1,200 ac (486 ha) of
suitable habitat; and, (3) Alberhill populations (Habitat with
Essential Features--Unit 3), 185 individuals, 160 ac (65 ha) of
suitable habitat. The total population and habitat estimates are
167,725 individuals and 10,501 ac (4250 ha) of suitable habitat,
respectively. We are unable to compare these estimates with our habitat
model or with the Units of habitat with essential features because
Bramlet and White (2004) did not include a map of suitable habitat.
14. Comment: One peer reviewer commented on the differences in
alkali soil types at different population centers. For example, the San
Jacinto Wildlife Area (SJWA) has Willows, Traver, Chino, Waukena and
Domino soils, the upper Salt Creek area has Willows, Traver, and Domino
soils, and the Alberhill population is located on
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Willows soils. The reviewer stated that approximately 80 percent of the
individuals in the SJWA were on Willows soils, and approximately 99
percent of Glenn Lukos Associates records were on Willows soil.
However, there is a more even distribution of the species across soil
types at upper Salt Creek.
Our Response: We appreciate the peer reviewer's comments regarding
alkali soils types at the different population centers and will take
the information into account when working with the species and during
our MSHCP implementation processes. See also our discussion of
``Primary Constituent Elements.''
15. Comment: Two peer reviewers submitted two comments that stated
that Atriplex coronata var. notatior occurs in soils that are naturally
nutrient poor. The reviewers believe that if natural runoff has been
documented to provide essential minerals not otherwise available in the
soil, the source should be cited.
Our Response: We appreciate the peer reviewers' comments on this
matter. We have removed from the final rule our undocumented statement
that natural runoff provides essential minerals to Atriplex coronata
var. notatior.
16. Comment: The three peer reviewers submitted seven comments that
recommended including in the final rule a better explanation of the
importance of hydrological processes to Atriplex coronata var.
notatior. The reviewers stated that stands of plants vary in size and
location with rainfall and inundation of alkali habitat. Additionally,
the species is not usually found in inundated areas but on small mounds
within the floodplain and along the upper margins of normalized local
flooding. The reviewers stated that both seasonal localized flooding
and occasional large-scale flooding are important to the species.
Seasonal localized flooding would distribute seeds locally, while
large-scale flooding (which occurs every 20 to 50 years) would
distribute seeds throughout the habitat, resetting the system by
killing alkali scrub and erasing the impact of discing and other
activities.
Our Response: We have expanded our discussion on the importance of
hydrological processes to Atriplex coronata var. notatior under the
``Water and Physiological Requirements'' and ``Sites for Reproduction,
Germination, and Seed Dispersal'' sections of this final rule.
17. Comment: Two peer reviewers submitted two comments that stated
that removal of habitat and plants may be mandated in some portions of
the species' range by local fire control ordinances, and that discing
in crownscale habitat, if it is related to fire at all, is for fire
prevention rather than fire suppression.
Our Response: Discing for fire prevention may currently occur
within the species' range. However, as discussed under the Fuels
Management section of the MSHCP (section 6.4), the impacts of fuels
management on the MSHCP Conservation Area will be minimized as new
reserve lands and new developments are proposed within the MSHCP plan
area. The MSHCP requires that Conservation Area boundaries be
established to avoid encroachment by the brush management zone in areas
where Reserves are created adjacent to existing developed areas.
Additionally, brush management zones must be incorporated into the
development boundaries when new development is planned adjacent to the
MSHCP Conservation Area or other undeveloped areas.
18. Comment: One peer reviewer stated that, based on general
observations, seeds of the species are viable for greater than 5 years.
Our Response: In our 2004 proposed rule, we stated that
``Preliminary studies indicate that Atriplex coronata var. notatior
seeds retain a relatively high viability for at least several seasons
(Ogden Environmental and Energy Services Corporation 1993).'' We
appreciate the peer reviewer's comment on this matter and will take the
information into account when working with the species.
19. Comment: One peer reviewer recommended that we review the most
current California Natural Diversity Database (CNDDB) records and
herbarium specimens from the Rancho Santa Ana Botanic Garden and the
University of California, Riverside, before finalizing boundaries of
habitat with essential features.
Our Response: We have reviewed the most current CNDDB records and
herbarium specimens from these two organizations. No new records have
been submitted to these agencies since the publication of our proposed
rule.
20. Comment: Two peer reviewers submitted seven comments that
suggested alterations to Unit 1 of Habitat with Essential Features. The
reviewers recommended defining the Unit to exclude upland and watershed
areas that are not suitable for the species, as well as some heavily
disced, irrigated agricultural fields that no longer support the
species. One peer reviewer provided a detailed map showing upland and
agricultural areas that are not suitable habitat for the species and
thus should not be considered habitat with essential features. Two peer
reviewers recommended making it clear in the text of the final rule
that habitat for Atriplex coronata var. notatior does not extend into
Railroad Canyon. The peer reviewers expressed concern that the Service
may have excluded occupied habitat southwest of Interstate 215 based on
future projects rather than known biological or soils data.
Additionally, they recommended that Unit 1 be expanded to incorporate
occupied habitat southwest of Interstate 215.
Our Response: We appreciate the peer reviewers' area-specific
expertise and their recommendation not to include as habitat with
essential features specific upland areas and heavily disced, irrigated
agricultural fields. We concur with their recommendation that these
areas should not be considered essential for the species and we will
make use of their comments and map when working with the species and
during our MSHCP implementation processes. Additionally, we concur with
the peer reviewers that habitat for the species does not extend into
Railroad Canyon. As explained in greater detail in the ``Relationship
of Critical Habitat to the Western Riverside Multiple Species Habitat
Conservation Plan'' section of this final rule, the occupied habitat
areas southwest of Interstate 215 that are outside of our Units of
habitat with essential features do not fall within our interpretation
of the MSHCP Conservation Area. However, in accordance with the
Additional Survey Needs and Procedures section of the MSHCP (section
6.3.2), property owners within the MSHCP Criteria Area must avoid 90
percent of those portions of the property that provide long-term
conservation value for the species until the permitees have
demonstrated that conservation goals for the species have been met.
Additionally, the requirements of the Protection of Species Associated
with Riparian/Riverine Areas and Vernal Pools section of the MSHCP
(section 6.1.2) may result in additional conservation for this species.
21. Comment: One peer reviewer advised the Service to check the
ownership of the San Jacinto Wildlife Area (SJWA) and stated that the
SJWA is likely owned by the State of California or the Wildlife
Conservation Board (WCB) rather than the California Department of Fish
and Game (CDFG).
Our Response: We have been informed by the CDFG that legal title to
all state lands is taken in the name of the State of California. The
CDFG is the State Trustee Agency for the management of the fish and
wildlife
[[Page 59957]]
resources of the State of California. As such, the CDFG is the State
agency responsible for the management of the State lands comprising the
SJWA. The WCB is the State agency responsible for the acquisition of
lands in the name of the State of California for purposes of wildlife
conservation and public access. Over the years the WCB has acquired
virtually all the formerly private lands now comprising the state
public lands of the SJWA (Paulek 2005 in litt.).
22. Comment: Two peer reviewers submitted two comments asking that
the final rule explain that the SJWA was purchased and is managed by
the CDFG primarily for waterfowl conservation. The reviewers stated
that most of the conservation management implemented on the SJWA, such
as flooding ponds in March when Atriplex coronata var. notatior blooms,
is beneficial to waterfowl but not to A. coronata var. notatior. The
reviewers further recommended describing any management obligations the
CDFG may have for rare plants, including A. coronata var. notatior,
citing the Wildlife Area's management plan where appropriate.
Our Response: We have been informed by the CDFG that the SJWA was
established in the early 1980's as a mitigation site for the direct
impacts of the State Water Project (SWP) which was completed in the
mid-1970's. Management objectives for the original 4,800 ac (1,942 ha)
of land acquired for SWP mitigation were directed towards habitat
conservation and the restoration of historic habitat values associated
with the San Jacinto Valley of Western Riverside County. To that end,
initial habitat restoration efforts included the development of
freshwater wetlands and extensive restoration of willow-cottonwood
riparian habitat. Wildlife habitats conserved in public ownership
include Riversidian Sage Scrub, annual grasslands, Alkali Sink Scrub,
and virtually the entirety of the historic Mystic Lake floodplain. The
placement of the Mystic Lake floodplain in public ownership represents
the most important A. coronata var. notatior conservation action
realized to date.
In 1995, the SJWA was included in the reserve lands for the
Stephens' Kangaroo Rat (SKR) pursuant to the SKR Habitat Conservation
Plan. More recently the SJWA has been designated a principal reserve
for the MSHCP adopted in June 2004. Over the years and with the recent
acquisition of the Potrero Unit, the SJWA has grown to nearly 20,000 ac
(8,094 ha). Pursuant to the conservation mandates above, the management
objectives for the SJWA continue to seek the conservation of multiple
species of plants and animals by maintaining and restoring a diversity
of habitat types.
As to the conservation of A. coronata var. notatior, the draft
management plan for the SJWA designates the habitat of A. coronata
(Alkali Sink Scrub) a Special Ecological Community. The plan recognizes
the need for additional survey of the distribution of the species on
the SJWA, and provides for the incorporation of appropriate impact
analysis for this sensitive plant in future project environmental
review procedures. The plan also recognizes the need to initiate
additional species-specific research efforts with the goal of
formulating a management prescription for this endangered plant (Paulek
2005 in litt.).
23. Comment: One peer reviewer stated that there appears to have
been an overestimate in the proposed rule of the total acreage of
Atriplex coronata var. notatior habitat that is located within
waterfowl ponds. The reviewer requested that we review this information
and correct the text in the final rule.
Our Response: In our 2004 proposed critical habitat rule, we wrote
that within the SJWA/Mystic Lake area, approximately 470 ac (190 ha) of
habitat consist of duck ponds, 250 ac (100 ha) of which fall within the
SJWA (Roberts and McMillan 1997). We have been informed by the CDFG
that wetland habitat (freshwater marsh) on the 10,000-ac (4,047-ha)
Davis Road Unit of the SJWA includes approximately 470 ac (190 ha) of
marsh habitat managed under a moist soil management regimen. Typically
these wetlands are flooded in the fall and the water is drawn off in
the spring. In addition, up to 500 ac (202 ha) of semi-permanent
wetland at other locations on the Wildlife Area can be flooded in the
early spring and maintained into the summer months. The moist soil
management regimen (fall flooding) at several locations on the SJWA has
been found to promote the germination of Atriplex coronata var.
notatior after the spring drawdown (Paulek 2005 in litt.).
24. Comment: Two peer reviewers submitted two comments that noted
that the proposed rule states that CNDDB Element Occurrence 12 is
outside of the SJWA, but that was incorrect and that the occurrence was
added to the SJWA in 1996.
Our Response: We appreciate the peer reviewer's comment on this
matter and will take the information into account when working with the
species in this area.
25. Comment: One peer reviewer stated that the survey conducted by
Glenn Lukos Associates in 2000 was conducted under special
circumstances. The reviewer stated that landowners suspended discing
and manure dumping for a spring census at the request of their
biological consultants. Additionally, discing and manure dumping
resumed following the census, with significant impact to the
populations. This further illustrated both the impact of these
activities on the species and the species resilience to temporary
disturbance.
Our Response: We appreciate the peer reviewers' comments with
regard to the Glenn Lukos Associates 2000 survey, and we will take this
information into account when working with the species and during our
MSHCP implementation processes. We address impacts to the species from
manure dumping, and how the MSHCP can address this threat, in the
``Special Management Considerations or Protections'' section of this
final rule.
26. Comment: Two peer reviewers submitted three comments that
suggested some alterations to Unit 2 of Habitat with Essential
Features. They recommended that the Unit be better defined to exclude
upland and watershed areas that are not suitable for the species,
including habitat north of Florida Avenue and upland slopes west of the
San Diego Canal. One peer reviewer provided a detailed map to show
which upland and agricultural areas are not suitable habitat for the
species and should be excluded from Unit 2. Additionally, the peer
reviewers expressed that occupied habitat known to occur south of the
railroad tracks at the southern end of the Unit, and south of the
intersection of Warren Road and Esplanade Avenue north of the Unit,
should be included in Unit 2. Additionally, one peer reviewer expressed
that occupied habitat known to occur south of the railroad tracks at
the southern end of the Unit, and between Devonshire Road and Tres
Cerritos Road within the Metropolitan Water District right-of-way for
the San Diego Canal, should be included in Unit 2.
Our Response: We appreciate the peer reviewers' comments with
regard to excluding upland and watershed areas from habitat with
essential features. We will take this information into account when
working with the species and during our MSHCP implementation processes.
As is explained in greater detail in the ``Relationship of Critical
Habitat to the Western Riverside Multiple Species Habitat Conservation
Plan'' section of this final rule, the occupied habitat area south of
the railroad tracks at the southern end of the
[[Page 59958]]
unit that is outside of our Unit does not fall within our
interpretation of the MSHCP Conservation Area. However, in accordance
with the Additional Survey Needs and Procedures section of the MSHCP
(section 6.3.2), property owners must avoid 90 percent of those
portions of the property within the MSHCP Criteria area that provide
long-term conservation value for the species until the permitees have
demonstrated that conservation goals for the species have been met.
Additionally, the Protection of Species Associated with Riparian/
Riverine Areas and Vernal Pools section of the MSHCP (i.e., section
6.1.2) may result in additional conservation for this species.
Because we have no source on file for the population reported by
one peer reviewer between Devonshire Road and Tres Cerritos Road within
the Metropolitan Water District right-of-way for the San Diego Canal,
we requested that the peer reviewer provide a source. The peer reviewer
said that the surveys that detected these individuals were conducted
this year and collections are forthcoming (David Bramlet 2005 pers.
comm. with USFWS). This area also does not fall within our
interpretation of the MSHCP Conservation Area.
27. Comment: One peer reviewer recommended that the Service review
the study of the Unit 2 area conducted by Recon in 1995, and
incorporate information into the final rule to provide a more complete
overview of the Unit.
Our Response: The 1995 study by Recon is a fairly comprehensive
survey of the Unit 2 area, excluding watershed areas to the north and
west. Atriplex coronata var. notatior was found to be locally common
within the study area. Survey results indicate a total of 33 data
points for the species, with numbers of individuals at each point
ranging from 2 to 10,000 plants.
28. Comment: One peer reviewer recommended the Service closely
examine the survey methodology of the 2001 Amec Earth and
Environmental, Inc. census. The reviewer believes the estimate of
136,000 plants on 40 ac (16 ha) in the Upper Salt Creek Wetland
Preserve is extremely high.
Our Response: According to the Amec Earth and Environmental, Inc.
(2001) study, ``methodologies were consistent from year to year * * *
population estimates based on average plant densities were calculated
for [Atriplex coronata var. notatior]. Ten-meter-square quadrats were
randomly placed within a stand of [A. coronata var. notatior] and
average plant density was then multiplied by the population area to
arrive at the estimated number of plants per population.'' Please also
see our response to comment 12 above.
29. Comment: One peer reviewer stated that habitat restoration is
needed in the Upper Salt Creek Area due to significant hydrological
impacts from ground surface alterations. For example, the reviewer
explained that a drainage ditch was constructed in 1989 that drains
water off of the surrounding flats, and has led to a reduction of
Juncus sp. and Eleocharis sp. which were once abundant in the area.
Our Response: We appreciate the peer reviewer's comment and we will
take this information into account when working with the species in
this area and during our MSHCP implementation processes.
30. Comment: One peer reviewer recommended documenting in the final
rule instances where storm flows are allowed to reach Atriplex coronata
var. notatior habitat rather than being collected in storm drains and
directed into stormwater channels. The reviewer further explained that
land conversion to large developed areas with storm drain systems
fundamentally changes the natural hydrology within watersheds
supporting A. coronata var. notatior.
Our Response: We have participated in three informal consultations
in the watershed area of Unit 2 of Habitat with Essential Features
which have resulted in the maintenance of clean water flows to the
seasonally flooded alkali vernal plain habitat at upper Salt Creek.
Clean water flows from Reinhardt Canyon and hillside areas west of the
Heartland Project are collected in a detention basin located northwest
of the California Avenue and Florida Avenue intersection. These flows
are then pumped out of the detention basin and travel by sheet flow to
the seasonally flooded alkali vernal plain habitat (Heartland Project
Description 2000; Heartland Memorandum of Understanding 2000). Once
construction is completed for these projects, clean water flows from
the Tres Cerritos hills north of the JP Ranch and Tres Cerritos West
Projects will be collected in a system of pipes which will direct the
clean water flows under the project sites to a spreader located south
of Devonshire Avenue between Warren Road and Old Warren Road (Lockhart
and Associates 2004; LSA Associates, Inc. 2004). Through informal
consultation, the City of Hemet has agreed to maintain these clean
water delivery systems.
31. Comment: One peer reviewer stated that dryland farming has not
been conducted in Hemet on any scale for over a decade. Additionally,
the reviewer believed that discing conducted in Hemet is for fire
prevention rather than dryland farming.
Our Response: We have been informed by the City of Hemet that weed
abatement notifications for fire prevention are not sent to properties
within the MSHCP Criteria Area (Masyczek 2005 in litt.).
32. Comment: Two peer reviewers submitted four comments that
suggested alterations to Unit 3 of Habitat with Essential Features.
They recommended that the unit be better defined to exclude the area
north of Nichols Road and include the field west and southwest of the
unit due to the presence of Willows soils. One peer reviewer provided a
detailed map to show these recommended changes.
Our Response: First, we appreciate the peer reviewers' comments
with regard to excluding the area north of Nichols Road from habitat
with essential features. The text in our proposed rule stated that
``the northern boundary [of Unit 3] is defined by Nichols Road.'' The
inclusion of the area north of Nichols Road in the critical habitat
unit was a mapping error resulting from the presence of mapped Willows
soils in that area. Due to the presence of dense riparian habitat, we
concur with the peer reviewers that habitat for the species does not
extend north of Nichols Road. Second, we have reviewed the map provided
by peer reviewers of the field in question located west and southwest
of the Unit of habitat with essential features. According to official
soil survey data (United States Department of Agriculture Soil
Conservation Service 1971), the soil types in this area are Garretson
very fine sandy loam and Arbuckle loam. However, this area is included
in our interpretation of the MSHCP Conservation Area (as described in
greater detail in the ``Relationship of Critical Habitat to the Western
Riverside Multiple Species Habitat Conservation Plan'' section of this
final rule) and should be conserved under the MSHCP.
33. Comment: Two peer reviewers submitted two comments that
recommended adding to the final rule that it is likely the Alberhill
Creek population is larger than currently known. Additionally, the
reviewer stated that information for this occurrence is limited to a
few collections and no surveys of potential habitat have been
conducted.
Our Response: We appreciate the peer reviewer's comment and we will
take this information into account when working with the species in
this area and during our MSHCP implementation processes.
[[Page 59959]]
Public Comments
34. Comment: One commenter submitted four comments that supported
our decision to exclude critical habitat based on the presence of an
existing HCP. The commenter stated that the MSHCP provides protection
for covered species and sensitive habitats, including Atriplex coronata
var. notatior and its habitat. The commenter expressed concern that the
designation of critical habitat within HCP boundaries would undermine
partnerships with landowners that were developed during the planning
process. The commenter further stated that landowners participated in
the regional MSHCP planning effort in part to prevent the inefficient
and ineffective project-by-project regulation that is associated with
designated critical habitat, and that designating critical habitat in
this area would subject landowners to two different regulatory
processes that would be a financial burden.
Our Response: As stated in the ``Exclusions Under Section 4(b)(2)
of the Act'' section of the proposed rule, we agree that the MSHCP
benefits the conservation of Atriplex coronata var. notatior and that
the benefits of excluding lands covered under the MSHCP outweigh the
benefits of including such lands. We also recognize that the
designation of critical habitat may remove incentives to participate in
the HCP processes, in part because of added regulatory uncertainty,
increased costs to plan development and implementation, weakened
stakeholder support, delayed approval and development of the plan, and
greater vulnerability to legal challenge. We believe HCPs are one of
the most important tools for reconciling land use with the conservation
of listed species on non-Federal lands. We look forward to working with
HCP applicants to ensure that their plans meet the issuance criteria
and that the designation of critical habitat on lands where an HCP is
in development does not delay the approval and implementation of their
HCP.
35. Comment: One commenter submitted two comments that disagreed
with our decision to exclude critical habitat based on the presence of
an existing HCP. The commenter stated that all agencies are not
signatories to the MSHCP, and therefore critical habitat should be
identified for those projects and agencies operating outside the MSHCP.
The commenter was concerned that the reason for habitat exclusions did
not have a scientific basis.
Our Response: See the response to Peer Reviewer Comment 3 above.
36. Comment: One commenter submitted two comments stating that
threats to the species were not adequately addressed in the proposed
rule and the MSHCP. The commenter recommended additional discussion on
the threats of manure spreading and non-seasonal flows which may result
from future development.
Our Response: See the response to Peer Reviewer Comment 9 above.
37. Comment: One commenter stated that failure to designate
critical habitat within HCP boundaries would be a disincentive to the
participation of their organizations in the development of future HCPs.
Our Response: It has been our experience that many different
stakeholders participate in the creation of an HCP. We appreciate the
commenter's participation in HCP planning efforts and urge them to
continue to participate in future HCP efforts. However, it has been our
experience that the designation of critical habitat in HCP areas
removes incentives for most stakeholders to participate in the HCP
process due to added regulatory uncertainty, increased costs to plan
development and implementation, delayed approval and development of the
plan, and greater vulnerability to legal challenge.
38. Comment: One commenter stated that it is incumbent upon the
Service to designate areas as critical habitat if they are identified
as ``essential habitat,'' based on the definition of critical habitat.
Our Response: Section 4(b)(2) of the Act allows us to consider the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. Areas
identified as having features essential for the conservation of the
taxon 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 an area as critical habitat will result in the extinction of the
species. We have determined that the benefits of exclusion of habitat
with essential features covered by the MSHCP outweigh the benefits of
inclusion. See ``Exclusions Under Section 4(b)(2) of the Act'' section
for a detailed discussion.
In addition, the Service in this and other notices has been using
the term ``essential habitat'' as shorthand for ``areas eligible for
designation as critical habitat''. We recognize that this might cause
confusion with the provisions of the Act that areas unoccupied at the
time of listing may be designated by the Secretary as ``essential to
the conservation of the species'' and so included in a critical habitat
designation. The use of the term ``essential habitat'' in this and past
notices is not a determination by the Service or the Secretary that
this habitat is, within the terms of the Act, essential to the
conservation of the species, unless the use of the term is accompanied
by an express statement that the Secretary has made such a
determination. In either event, however, we have authority under
section 4(b)(2) of the Act to exclude any such area.
39. Comment: One commenter stated that the reserves proposed under
the MSHCP are fragmented and the connectivity between units of habitat
with essential features is lacking.
Our Response: The three Units of Habitat with Essential Features
for Atriplex coronata var. notatior include areas of seasonally-flooded
alkali vernal plain habitat that are currently naturally isolated from
each other. The MSHCP provides for a connection through different
habitat types between Units 1 and 3. Unit 2 falls within proposed MSHCP
noncontiguous habitat block 7 which is not connected to the larger
MSHCP Conservation Area. However, this habitat block is currently
isolated from other natural areas by existing development and
agricultural lands. Efforts are being made on a local level in order to
prevent fragmentation of habitat within MSHCP noncontiguous habitat
block 7. For example, the City of Hemet has adopted an Interim Urgency
Ordinance to ensure that development efforts within the MSHCP Criteria
Area are coordinated such that habitat conserved within the criteria
area does not become fragmented, thereby allowing the City to meet
their obligations under the MSHCP (Ordinance No. 1742).
40. Comment: One commenter stated that the Service should consider
multiple variables (e.g., life strategy, disturbance probability,
potential habitat, population size, recovery from disturbance, habitat
suitability, predation, and competition) when determining the size of
plant conservation areas and critical habitat units. Additionally, this
commenter stated that the purpose of critical habitat designation is
not only to prevent extinction but to facilitate recovery, as supported
by case law. The commenter stated that the critical habitat proposal
failed to include areas of unoccupied suitable habitat that would
provide for recovery opportunities, including
[[Page 59960]]
genetic exchange and migration in response to climate change.
Our Response: As described in the ``Critical Habitat'' portion of
this final rule, a number of policy and regulatory guidelines and
standards provide the Service with criteria, procedures, and guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service biologists, to the
extent consistent with the Act and with the use of the best scientific
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 is generally the listing package for the species.
Additional information sources include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials, expert
opinions, or personal knowledge.
Section 4 of the Act requires that we designate critical habitat on
the basis of what we know at the time of designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Moreover, we believe this HCP, and HCPs generally, offer greater
benefits to all aspects of the conservation of listed species,
including to recovery, than a critical habitat designation. We also
believe that this action complies with all applicable laws.
Public Comments on the Draft Economic Analysis
41. Comment: Three commenters state that the Draft Economic
Analysis (DEA) quantifies costs for projects that do not contain
occupied habitat for Atriplex coronata var. notatior. Two of the
commenters also question why costs not related to protection of A.
coronata var. notatior or its habitat are presented in Table 6 in
Section 5.1.
Our Response: As described in Section 5.1, Table 6 of the DEA, past
development projects outside of the footprint of the proposed critical
habitat designation have impacted the species habitat within the lands
proposed for designation. In this scenario, the DEA appropriately
quantifies the costs of the project modifications implemented at the
offsite development projects to protect the species and habitat within
the proposed designation. This is consistent with the scope of analysis
as described in Section 1.2: the analysis considers the cost of species
and habitat conservation, not just impacts to projects located within
occupied habitat.
The information on the costs of vernal pool conservation not
related to protecting Atriplex coronata var. notatior or habitat are
provided in Section 5.1, Table 6 as these activities provide insight
into the types and costs of project modifications implemented to
protect vernal pool species and habitat in general. The conservation
activities and associated dollar amounts described in the table,
however, are provided only for context and are not captured in the
quantitative results of the DEA.
42. Comment: Two commenters question the framework for development
effects, as discussed in Section 2.2.2.1 of the DEA. These commenters
state that the DEA is an analysis of the impacts of the California
Environmental Quality Act (CEQA) and the Western Riverside County
MSHCP, not solely of designating critical habitat.
Our Response: Coextensive effects, as defined in Section 1.2 of the
DEA, may include impacts associated with overlapping protective
measures of other Federal, State, and local laws that aid habitat
conservation in the areas proposed for designation. Because habitat
conservation efforts affording protection to a listed species likely
contribute to the efficacy of the critical habitat efforts, the impacts
of these actions are considered relevant for understanding the full
effect of the proposed critical habitat designation.
43. Comment: One commenter suggests that information on specific,
planned development projects should be reviewed.
Our Response: Throughout the development of the DEA, past and
current development projects within the potential critical habitat area
were researched. As described in Table 6 of Section 5.1, two
development projects are currently in progress and the development
companies were contacted to determine the details and status of the
projects. The DEA captures the impacts of mitigating these projects
based on information obtained. Data are not available on all potential
development projects that may occur during the 20-year forecast period;
thus, the analysis estimates and applies average costs of impacts to
development on a per-acre rather than per-project basis where specific
information is unavailable.
44. Comment: Multiple comments state that the DEA fails to evaluate
the cost of property for conservation acquisition or the costs of
implementing and maintaining of conservation easements. Specifically,
one comment asserts that the methodology used to quantify development
impacts is questionable as it does not quantify the cost of purchasing
reserves for the MSHCP. The comment further states that while the MSHCP
reserve boundaries are not yet proposed, land will have to be purchased
or obtained through mitigation dedication and projects may have to be
modified to avoid impacts to vernal pools and vernal pool watersheds.
The comment also states the DEA fails to analyze the potential loss of
developable private lands or the potential cost of transfer of
ownership of lands for mitigation.
Our Response: As acknowledged by the commenter, the MSHCP does not
describe the exact location or timing of each acre of private land to
be acquired for the MSHCP reserve. However, as described in Section
5.2.4.1 of the DEA, current land use and population growth rates were
available from the Riverside County to spatially forecast future
development within the proposed critical habitat units. Section 2.2.2.1
of the DEA describes the model applied to estimate impacts to
development using these data. The DEA assumes that development is
permitted in potential critical habitat areas if appropriate project
modifications and/or mitigation activities are undertaken, and/or
mitigation fees paid. That is, the analysis does not assume that land
is lost to development, but instead that development occurs with
mitigation.
Quantified mitigation efforts include the collection of a
mitigation fee from future development within the boundaries of the
MSHCP. These funds will be used by the County to finance the future
acquisition of lands for the MSHCP reserve. The impact of these fees is
captured in the DEA (Section 5.2.5). Further, as outlined in Section
5.2.2, other conservation efforts associated with development projects
have been quantified in the DEA, including purchase of on-site or off-
site mitigation lands through restoration and enhancement; habitat
creation; purchasing preservation credits from a conservation bank; or
purchasing vernal pool habitat from a private land owner and preserving
wetted acreage. To account for a variety of potential mitigation ratios
and mitigation measures, the DEA presents impacts of Atriplex coronata
var. notatior
[[Page 59961]]
conservation efforts on development projects as a range. That is, the
DEA reports the full range of costs associated with a combination of
mitigation ratios and conservation efforts that may be recommended to
offset impacts of development to the species and habitat.
45. Comment: One commenter states the DEA should justify why it
assumes that habitat protection under the MSHCP will not affect
existing development patterns. The comment also questions how the
habitat with essential features will be conserved if all of the
potential developments are approved.
Our Response: It is uncertain which specific areas of the habitat
with essential features may be developed during the forecast period,
when those areas may be developed, what mitigation would be
recommended, and if the County would be interested in acquiring a
portion of that area for the MSHCP reserve. By assuming that all future
development is allowed in habitat areas with appropriate project
modifications and/or mitigation activities, the DEA captures the cost
of modifying development projects to protect the plant and its habitat.
46. Comment: According to one comment, the DEA fails to include
impacts to the proposed expansion of the Ramona Expressway and the
construction of a dam across the San Jacinto River.
Our Response: The DEA quantifies economic impacts to specific road
projects where information is available (Section 6.1.1.1) and applies a
generic impact estimate future road projects for periods where project-
specific information is not known. California Department of
Transportation (Cal Trans) was contacted during the development of the
DEA to identify future transportation projects planned in and around
the essential habitat areas. While the proposed expansion of the Ramona
Expressway was not explicitly identified by Cal Trans as a project
during its 2006-2009 planning period, the DEA captures the economic
impacts associated with future project in its generic forecast of
impacts to road projects generally if the Ramona Expressway expansion
occurs during the 2010-2025 period.
47. Comment: One commenter states that the DEA fails to consider
that the main purpose of the SJWA is waterfowl management. The comment
further suggests that the Reserve Manager should have been contacted to
determine the budget for Atriplex coronata var. notatior conservation
efforts and opines that these costs should be offset by the benefits of
maintaining these sites. In addition, the California Native Plant
Society (CNPS) and Center for Biological Diversity (CBD) state A.
coronata var. notatior conservation is not explicitly considered in the
operating budget of the Wildlife Area and therefore, costs of Wildlife
Area management should not be included in the DEA. The commenters
further state that, while the operation of the Wildlife Area benefits
some A. coronata var. notatior populations, management has also damaged
the species in the past, for example, inundating habitat, which reduces
the potential for recovery. The DEA fails to evaluate these damages.
Our Response: As described in Section 6.6, the DEA acknowledges
that the SJWA was established as mitigation for the State Water
Project, and that the primary purpose of the Wildlife Area was to
conserve the floodplain ecosystem and species' habitat. In addition,
the manager of the Wildlife Area was contacted regarding costs of
conservation activities specifically benefiting A. coronata var.
notatior. As quantified in the DEA, the SJWA spends approximately
$5,000 every other year to protect vernal playa habitat. Information
was also provided on the annual number of recreational user days, which
were valued and used to quantify the net economic impacts of Wildlife
Area management in the DEA. No information was identified regarding the
impact of past damages to A. coronata var. notatior habitat resulting
from Wildlife Area management. The DEA does, however, capture the costs
of monitoring and maintaining the habitat, which is assumed to include
avoiding such damages in the future.
48. Comment: Two commenters state the cost model used in the DEA to
estimate the administrative cost of section 7 consultation is highly
inflated.
Our Response: As described in Section 2.2 of the DEA, the cost
model is based on a survey of Federal agencies and Service Field
Offices across the country and the costs are believed to be
representative of the typical range of costs of the section 7
consultation process. Throughout the development of the DEA,
stakeholders were asked whether the range of estimated consultation
costs was reasonable. In the case that stakeholders anticipated higher
or lower costs, this improved information would be applied in the DEA.
No stakeholders indicated, however, that the range of costs applied in
the DEA was inappropriate.
49. Comment: A comment provided by the CNPS and CBD states that the
cost estimates of species conservation as provided in the DEA conflict
with the cost estimated in the Western Riverside MSHCP for this species
alone, which is much less. Therefore, either the DEA or the MSHCP
contain errors in its impact estimates.
Our Response: Section 8.2.1 of the MSHCP describes the costs of
implementing the plan, including costs to acquire reserve lands, manage
and monitor the reserve area, and general administration of the MSHCP.
The County estimates these costs will total almost $1 billion during
the first 25 years of the MSHCP. This impact estimate, however, is not
directly comparable to that in the DEA as the policy actions being
analyzed are different. The MSHCP estimates the cost of acquiring and
managing its reserve area and conservation actions for the multiple
species covered under the plan. Further, the geographic scope of the
MSHCP and the potential critical habitat for A. coronata var. notatior
are different.
50. Comment: Two commenters question the use of ``low income
farmers'' as an example of a group that may be adversely affected by
species conservation in Section 1.1. Another comment states that the
report appears biased because it implies that low income farmers are
the principal landowners within the habitat with essential features
being reviewed, and that the report does not provide a review of the
economic status of the private landowners in the affected areas.
Our Response: The DEA considers the status of public and private
land ownership; however, the identity of every private landowner within
the 15,232 acres of essential habitat is unknown. As described in
Section 6.8, approximately one-half of all habitat with essential
features is classified as agriculture land, and this agriculture land
represents 60 percent of the developable acres. Considering farmers
comprise a large percentage of landowners within the habitat with
essential features and developable land, the use of farmers as an
example of a group of individuals that could be impacted in Section 1.1
is considered appropriate.
51. Comment: One commenter requests that more detail be provided on
local regulations that protect A. coronata var. notatior within the
County.
Our Response: Section 4 of the DEA includes discussion of the
relevant Federal, State, and local regulations that provide protection
to the species and its habitat.
52. Comment: One commenter states that the description of the Clean
Water Act in Section 4.2.1 does not include
[[Page 59962]]
the proposed Special Area Management Plan (SAMP) for the San Jacinto
River watershed.
Our Response: Section 4.0 provides a summary of important
regulations that provide protection for the plant and its habitat but
does not provide an exhaustive list of all regulatory protection. The
proposed SAMP may streamline the Section 404 permitting process in the
future, but it is not expected to influence the types of project
modifications and mitigation implemented to protect A. coronata var.
notatior and its habitat as quantified in the DEA.
53. Comment: Four commenters stated that the DEA should include an
analysis of benefits, such as flood protection, watershed management,
and open space. The commenters further stated that there is a benefit
of having critical habitat in place should the Western Riverside MSHCP
falter in its conservation mandate. Two of the commenters also stated
the DEA fails to consider non-market values. One comment noted that
large portions of the existing occupied habitat outside of the San
Jacinto Valley Wildlife Area are being disked and that this will result
in considerable costs to restore the habitat for this species. Thus,
the beneficial costs of extant habitat that will not require
restoration should be carefully evaluated.
Our Response: In the context of a critical habitat designation, the
primary purpose of the rulemaking is to designate areas in need of
special management that are essential to the conservation of listed
species.
The designation of critical habitat may result in two distinct
categories of benefits to society: (1) Use; and (2) non-use benefits.
Use benefits are simply the social benefits that accrue from the
physical use of a resource. Visiting critical habitat to see endangered
species in their natural habitat would be a primary example. Non-use
benefits, in contrast, represent welfare gains from ``just knowing''
that a particular listed species' natural habitat is being specially
managed for the survival and recovery of that species. Both use and
non-use benefits may occur unaccompanied by any market transactions. In
addition, there is no general agreement on how to value ``just
knowing'' benefits.
A primary reason for conducting this analysis is to provide
information regarding the economic impacts associated with a proposed
critical habitat designation. Section 4(b)(2) of the Act requires the
Secretary to designate critical habitat based on the best scientific
data available after taking into consideration the economic impact, and
any other relevant impact, of specifying any particular area as
critical habitat. Economic impacts can be both positive and negative
and by definition, are observable through market transactions.
Where data are available, this analysis attempts to recognize and
measure the net economic impact of the proposed designation. For
example, if the fencing of a species' habitat to restrict motor
vehicles results in an increase in the number of individuals visiting
the site for wildlife viewing, then the analysis would recognize the
potential for a positive economic impact and attempt to quantify the
effect (e.g., impacts that would be associated with an increase in
tourism spending by wildlife viewers). In this particular instance, the
DEA quantified the net economic impact of the proposed designation
taking into account additional recreation activities.This is described
in Section 6.6 (CDFG, San Jacinto Wildlife Area) of the DEA.
While the Act requires us to specifically consider the economic
impact of a designation, it does not require us to explicitly consider
in economic terms, or in an economic analysis, any broader social
benefits (or costs) that may be associated with the designation where
these are not readily monetized.
54. Comment: Four commenters stated that costs should be allocated
among all the threatened and endangered species that benefit from the
efforts.
Our Response: Coextensive effects as quantified in the DEA may also
include impacts associated with overlapping protective measures of
other Federal, State, and local laws that aid habitat conservation in
the areas proposed for designation. We note that in past instances,
some of these measures have been precipitated by the listing of the
species and impending designation of critical habitat. Because habitat
conservation efforts affording protection to a listed species likely
contribute to the efficacy of the critical habitat designation efforts,
the impacts of these actions are considered relevant for understanding
the full effect of the proposed critical habitat designation.
Enforcement actions taken in response to violations of the Act,
however, are not included.
55. Comment: Two commenters stated that the DEA does not make a
distinction between the cost of listing the species under the ESA
versus the cost of designating critical habitat.
Our Response: This analysis identifies those economic activities
believed to be most likely to threaten Atriplex coronata var. notatior
and its habitat and, where possible, quantifies the economic impact to
avoid, mitigate, or compensate for such threats within the boundaries
of the essential habitat area. In instances where critical habitat is
being proposed after a species is listed, some future impacts may be
unavoidable, regardless of the final designation and exclusions under
4(b)(2). However, due to the difficulty in making a credible
distinction between listing and critical habitat effects within
critical habitat boundaries, this analysis considers all future
conservation-related impacts to be coextensive with the designation.
56. Comment: Four commenters suggested that the economic analysis
should be limited to the proposed critical habitat designation, zero
acres, rather than the 15,232 acres of essential habitat, which
comprise lands excluded from designation.
Our Response: In the proposed critical habitat rule we considered
15,232 acres of habitat essential for Atriplex coronata var. notatior,
but we excluded that habitat from designation due to the presence of an
existing habitat conservation plan under section 4(b)(2) of the Act.
However, we recognized that we might receive comments on the proposed
rule that would cause us to reassess our exclusions, and for this
reason we conducted an economic analysis on the essential habitat. In
addition, the Act requires us to consider economic impacts. The fact
that we have proposed in advance to exclude areas for other reasons
does not exempt us from this requirement.
57. Comment: Three commenters submitted requests that the 14 day
comment period on the Draft Economic Analysis be extended to 30 or 60
days and four commenters stated that the Service did not offer a
reasonable time period for review of the Draft Economic Analysis.
Our Response: We were unable to extend the comment period on the
Draft Economic Analysis due to the lawsuit settlement deadline for the
publication of the final critical habitat rule.
58. Comment: Two commenters stated that the essential habitat areas
are not protected by the MSHCP but are within the MSHCP Criteria Area
which directs potential conservation. They further stated that a full
year after the issuance of the section 10(a)(1)(B) permit for the
MSHCP, manure dumping and habitat conversion such as sod farming,
continues to directly impact the species.
Our Response: The MSHCP is a large and complex habitat conservation
plan, and its implementation is expected to take time. In its first
year of
[[Page 59963]]
implementation, the MSHCP has already resulted in conservation and
management actions that address threats to Atriplex coronata var.
notatior on private lands. We address this issue further under the
``Special Management Considerations or Protections'' section of this
final rule.
59. Comment: One commenter stated that although the Service mapped
15,232 acres of essential habitat for the species, the MSHCP proposes
the conservation of only 6,900 acres of suitable habitat for the
species. Moreover, our essential habitat coincided with the lands
already conserved (Public/Quasi-Public Lands (PQP) and lands to be
conserved (conceptual reserve design) under the MSHCP. The watershed
lands in Salt Creek identified as essential habitat are expected to be
developed and the MSHCP provides guidelines to maintain water quality
and quantity to occupied seasonal wetlands. Thus, there is not a
conflict between the proposed conservation of Atriplex coronata var.
notatior under the MSHCP and the essential habitat identified in the
proposed rule for the following reasons: (1) Although we did not use
the habitat model used in the MSHCP, all essential habitat is protected
by the MSHCP; (2) the 6,900 acres of suitable habitat for Atriplex
coronata var. notatior is embedded within the much larger MSHCP
Conservation Area; (3) approximately 77 percent of the essential
habitat for Atriplex coronata var. notatior (11,760 acres of the 15,232
acres of essential habitat) would be protected on existing PQP lands
and conceptual reserve design lands within the Western Riverside County
MSCHP at San Jacinto River, Mystic Lake, Salt Creek, and Alberhill
Creek, and (4) approximately 23 percent of the essential habitat (3,473
ac, 1405 ha) provides the watershed for the MSHCP Conservation Area at
Unit 2. These watershed lands are not part of the MSHCP Conservation
Area and are not known to be occupied by A. coronata var. notatior. The
MSHCP species-specific Objectives for A. coronata var. notatior and the
Guidelines Pertaining to the Urban/Wildlands Interface will ensure that
floodplain processes will be maintained and the quantity and quality of
runoff discharged to the MSHCP Conservation Area will not be altered in
an adverse way when compared with existing conditions such that the
essential functions and values that these watershed areas provide for
the species will be maintained.
Our Response: When we mapped essential habitat for Atriplex
coronata var. notatior, we did not use the habitat model used in the
MSHCP for the species. The MSHCP defines suitable habitat for the
species as consisting of grasslands on alkali soils, playas, and vernal
pools within the Mystic Lake, San Jacinto River, and Salt Creek areas.
When we mapped essential habitat for the species, we looked at habitat
as described in the primary constituent elements of this rule, and our
essential habitat includes watershed areas that were not captured in
the MSHCP's definition of suitable habitat for Atriplex coronata var.
notatior.
60. Comment: One commenter stated that in the MSHCP's proposal to
conserve 6,900 acres of suitable habitat for the species, there is no
consideration of conserving occupied versus potential habitat and asked
for an explanation of how the MSHCP will conserve essential habitat for
the species.
Our Response: MSHCP species-specific objective 2 for Atriplex
coronata var. notatior requires that the locality at Alberhill creek
and the three Core Areas for the species located along the San Jacinto
River from the vicinity of Mystic Lake southwest to the vicinity of
Perris and in the upper Salt Creek drainage west of Hemet, be included
within the MSHCP Conservation Area. For further explanation of how the
MSHCP will conserve essential habitat for the species, see the
``Relationship of Critical Habitat to the Western Riverside Multiple
Species Habitat Conservation Plan'' section below.
61. Comment: One commenter expressed concern that the Conservation
Areas are the only areas that will be conserved through the MSHCP and
that all habitat enhancement, revegetation, and restoration will occur
only within these areas.
Our Response: The ``Protection of Species Associated with Riparian/
Riverine Areas and Vernal Pools'' and ``Additional Survey Needs and
Procedures'' sections of the MSHCP may result in additional
conservation and habitat enhancement, revegetation, and restoration for
Atriplex coronata var. notatior. To date, these policies have resulted
in the submittal of two DBESPs that will result in conservation and
restoration activities that may benefit A. coronata var. notatior
(Lockhart 2004; LSA Associates Inc. 2005). For these two projects, the
DBESPs propose to introduce the species into restored and created
vernal pool habitat north of the upper Salt Creek populations once
initial success criteria have been met, even though the proposed
actions that resulted in impacts to vernal pool habitat did not
directly affect A. coronata var. notatior.
Summary of Changes From Proposed Rule
We have reviewed public comments received on the proposed
designation of critical habitat for Atriplex coronata var. notatior and
the related draft economic analysis. While we have made no major
changes to the rule, we have made a minor administrative change:
Instead of adding text pertaining to A. coronata var. notatior to 50
CFR 17.97 as proposed, we are adding text to 50 CFR 17.96 instead.
Since publication of the proposed rule, we have used Sec. 17.97 for a
different purpose. Consistent with the proposed rule, no lands are
being designated as critical habitat for A. coronata var. notatior
because all habitat with features essential to the conservation of this
taxon are within the conservation area of the approved Western
Riverside MSHCP, and are excluded pursuant to section 4(b)(2) of the
Act. However, we have incorporated detailed information on the MSHCP
and its associated documents as they relate to A. coronata var.
notatior into this rule under the section titled ``Relationship of
Critical Habitat to the Western Riverside Multiple Species Habitat
Conservation Plan.''
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection; and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary.
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. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such
[[Page 59964]]
designation does not allow government or public access to private
lands.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are ``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)).
Habitat occupied at the time of listing 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).) Accordingly, when the best available scientific 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 at the time of listing. An area
currently occupied by the species but was not known to be occupied at
the time of listing will likely be considered essential to the
conservation of the species and, therefore, included in the critical
habitat designation.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
and Section 515 of the Treasury and General Government Appropriations
Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658) and the associated
Information Quality Guidelines issued by the Service, provide criteria,
establish procedures, and provide guidance to ensure that decisions
made by the Service represent the best scientific data available. They
require Service biologists to the extent consistent with the Act and
with the use of the best scientific 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 is generally the listing
package for the species. Additional information sources include the
recovery plan for the species, 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. All information is
used in accordance with the provisions of Section 515 of the Treasury
and General Government Appropriations Act for Fiscal Year 2001 (P.L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of what we know at the time of designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b)(1)(A) of the Act, we used the best
scientific data available in determining those areas that contain the
features essential to the conservation of Atriplex coronata var.
notatior. We utilized data and information contained in, but not
limited to, the proposed critical habitat rule (69 FR 59844), the
proposed listing rule (59 FR 64812), the final listing rule (63 FR
54975), CNDDB, reports submitted by biologists holding section
10(a)(1)(A) recovery permits, reports and documents on file in the
Service's field offices, and communications with experts outside the
Service who have extensive knowledge of the species and its habitat.
Additionally, we used information contained in comments received by
December 6, 2004, which were submitted on the proposed critical habitat
designation (69 FR 59844), and comments received by September, 14,
2005, submitted on the draft economic analysis (70 FR 51739).
After all the information about the known occurrences of Atriplex
coronata var. notatior was compiled, we created maps indicating the
habitat areas with essential features associated with each of the
occurrences. We used the information outlined above to aid in this
task. Theses areas were mapped using GIS and refined using
topographical and aerial map coverages. These areas were further
refined by discussing each area with Service biologists familiar with
each area, and by site visits to all three areas. After creating GIS
coverage of the areas, we created legal descriptions of those 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 areas.
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 and protection. These include, but
are not limited to: space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
The biological and physical features which are essential to the
conservation of Atriplex coronata var. notatior, i.e., the PCEs, are
based on specific components that provide for the essential biological
requirements of the species as described below.
Space for Individual and Population Growth, and for Normal Behavior
Atriplex coronata var. notatior occupies seasonally-flooded alkali
vernal plain habitat, which includes alkali playa, alkali scrub, alkali
vernal pool, and alkali annual grassland components (Interface Between
Ecology and Land Development in California 1993, Service 1994, Madrono
1996). The species occurs in areas where this habitat is associated
with the Willows soil series, and to a lesser extent, the
[[Page 59965]]
Domino, Traver, Waukena, and Chino soils series (Service 1994, Knecht
1971). Seasonal wetlands that the species occupies are dependent upon
adjacent transitional wetlands and marginal wetlands within the
watershed (Service 1994). These areas do not occur in great abundance,
and in recent years have been degraded and lost to agriculture, soil
chemistry alteration resulting from the dumping of manure, discing for
fire prevention, off-road vehicle use, grazing, flood control projects,
and development, including pipeline projects, transportation projects,
and residential development projects (Service 1994).
The four locations where the taxon is known to occur are no longer
pristine and undisturbed. However, the wetlands and associated
hydrology continue to provide essential biological and physical
features necessary for this taxon at all four locales. All remaining
occurrence complexes have been impacted by agricultural activities
(Bramlet 1993, CNDDB 2003, Roberts and McMillan 1997, Service 1998).
The taxon is also affected by nonagricultural related clearing
activities (Bramlet 1993, CNDDB 2003, Roberts and McMillan 1997,
Service 1998). Farming continues today on a portion of the lands that
make up the SJWA. The occurrence complex that occupies the floodplain
of the San Jacinto River between the Ramona Expressway and the mouth of
Railroad Canyon has been severely degraded during recent years by soil
chemistry alteration resulting from the dumping of manure (Roberts 2003
and 2004). Habitat at the Salt Creek Vernal Pool Complex has been
degraded as a result of dry land farming. Finally, the occurrence
within the Alberhill Creek floodplain is adjacent to a plowed field.
This population may have previously extended into the adjacent
agricultural area. Additionally, the population may be affected by
agricultural runoff and sediment.
Atriplex coronata var. notatior can persist in the seed bank within
disturbed lands, including agricultural areas. Therefore, the species
is expected to re-establish itself from the seed bank once lands are
restored. Restoration of these disturbed areas is necessary for the
conservation of this taxon.
Water and Physiological Requirements
Atriplex coronata var. notatior requires a hydrologic regime that
includes sporadic flooding in combination with slow drainage in
alkaline soils and habitats. The duration and extent of flooding or
ponding can be extremely variable from one year to the next. Both
localized and large-scale flooding are important to the survival of A.
coronata var. notatior.
Local flooding occurs on a seasonal basis and large-scale flooding
occurs less frequently, approximately every 20 to 50 years (Roberts
2004). Atriplex coronata var. notatior occupies the margins of flooded
areas on dry mounds and banks within seasonally-flooded alkali vernal
plain habitat. This annual species may be abundant during average and
dry years due to the increased presence of floodplain margins. However,
alkali scrub habitat expands and crowds out habitat for annuals such as
A. coronata var. notatior under normal circumstances (Roberts 2004,
Bramlet 2004).
When large-scale flooding occurs, standing and slow moving water is
present for weeks or months and results in the death of submerged
alkali scrub. Large-scale flooding will also naturally restore areas
that have been degraded by discing or other activities. Because
Atriplex coronata var. notatior occupies the margins of flooded areas,
populations may be reduced during very wet years when most of the
species habitat is underwater (Bramlet 2004). However, large-scale
flooding is essential to the continued survival of the species due to
its ability to restore and maintain this habitat in a successional
state. Irreversible actions that alter the hydrology of the seasonal
wetlands or infringe upon the wetlands may threaten the survival of A.
coronata var. notatior.
All four occurrence complexes rely on seasonal localized flooding
and ponding from surrounding watershed areas (Roberts 2004, Bramlet
2004). Less frequent large-scale flooding is provided by the San
Jacinto River at the SJWA/Mystic Lake occurrence complex and the
occurrence complex located between the Ramona Expressway and the mouth
of Railroad Canyon. Alberhill Creek would provide large-scale flooding
for the occurrence complex at that location. Finally, the Upper Salt
Creek Vernal Pool Complex is in a natural depression where rainfall
from the surrounding area flows across the land and pools within the
complex, in addition to flooding received from an unnamed tributary to
Salt Creek. While some of the localized flooding for the Upper Salt
Creek Vernal Pool Complex comes from undeveloped hillsides, much of the
watershed has been developed, and the flows traveling to the vernal
pools include a large amount of urban runoff. The maintenance of clean,
seasonal flows from the surrounding watershed, as well as natural
floodplain processes, is necessary for the conservation of all four
occurrence complexes.
Sites for Reproduction, Germination, and Seed Dispersal
Both localized and large-scale flooding are important to the
reproduction, germination, and seed dispersal of Atriplex coronata var.
notatior (Roberts 2004, Bramlet 2004). A. coronata var. notatior
produces floating seeds (A. Sanders, June 4, 2004, University of
California, Riverside, pers. comm. to S. Brown, USFWS) that are likely
dispersed during local and large scale flooding by slow-moving flows
within the floodplains and vernal pools where the species occurs.
Natural floodplain processes are integral to the biotic processes this
species uses to disperse and reproduce.
Local flooding allows for the distribution and germination of seeds
within a localized area. Large scale flooding widely distributes seed
of Atriplex coronata var. notatior, allowing the taxon to colonize
favorable sites and retreat from less favorable sites in response to
disturbance and variations in annual rainfall (Service 1994, Roberts
2004, Bramlet 2004). Natural hydrological processes must be maintained
in these areas to allow for the reproduction and dispersal of the
species.
Primary Constituent Elements for Atriplex coronata var. notatior
Based on our current knowledge of the life history, biology, and
ecology of the taxon and the requirements of the habitat to sustain the
essential life history functions of the species, we have determined
that Atriplex coronata var. notatior's primary constituent elements
are:
(1) Seasonal wetlands, including floodplains and vernal pools, and
the natural hydrologic processes upon which these areas depend;
(2) Natural communities, including seasonally-flooded alkali vernal
plain, alkali playa, alkali scrub, and alkali grassland, within which
the taxon is known to occur; and,
(3) Slow-draining alkali soils with a hard pan layer that provides
for a perched water table, including the Willows, Domino, Traver,
Waukena, and Chino Soils Series.
Criteria Used To Identify Habitat Areas With Essential Features
In our proposed critical habitat designation (69 FR 59844), we
delineated three Units of habitat with features essential to the
conservation of Atriplex coronata var. notatior encompassing the four
occurrence
[[Page 59966]]
complexes where the taxon is known to occur. These Units encompass a
total of approximately 15,232 ac (6,167 ha) of habitat.
All four of the occurrence complexes are within the geographic area
occupied by the species, are known to have been occupied at the time of
listing, and contain one or more PCEs (e.g., soil type, habitat type).
The four occurrence complexes are: (1) Floodplain of the San Jacinto
River at the SJWA/Mystic Lake; (2) Floodplain of the San Jacinto River
between the Ramona Expressway and Railroad Canyon Reservoir; (3) Upper
Salt Creek Vernal Pool Complex; and (4) Alberhill Creek. Each of these
four occurrence complexes is essential to the conservation of the
species, although not all known populations within these complexes are
considered essential to the conservation of the species. We included
those populations which are considered essential to the conservation of
the species within the essential habitat units delineated in the
proposed critical habitat designation (69 FR 59844). The significance
of each occurrence complex is described in detail in the proposed rule
(69 FR 59844).
These complexes are mapped as three Units in Map 1 in the proposed
rule (69 FR 59844): Unit 1--San Jacinto River; Unit 2--Salt Creek
(Hemet); and Unit 3--Alberhill. Unit 1--San Jacinto River includes the
first two occurrence complexes (the floodplain of the San Jacinto River
at the San Jacinto Wildlife Area/Mystic Lake and the floodplain of the
San Jacinto River between the Ramona Expressway and Railroad Canyon
Reservoir) and comprises 12,046 acres, 6,535 ac (2,645 ha) of which are
privately owned and 5,511 ac (2,230 ha) of which are owned by the
California Department of Fish and Game. Unit 2--Salt Creek (Hemet)
includes the third occurrence complex (Upper Salt Creek Vernal Pool
Complex) and comprises 3,154 ac (1,277 ha), all of which are privately
owned. Unit 3--Alberhill includes the fourth occurrence complex and
comprises 32.3 ac (13.1 ha), all of which are privately owned.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing and contain the
primary constituent elements may require special management
considerations or protections. Within the areas of habitat with
essential features occupied by Atriplex coronata var. notatior, we
believe special management considerations or protections may be needed
to maintain the physical and biological features that the species
requires. Threats to the species habitat include habitat destruction
and fragmentation resulting from urban and agricultural development,
manure dumping, 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), and competition
from non-native plant species (Bramlet 1993, Roberts and McMillan 1997,
Service 1998). Each of these threats render the habitat less suitable
for A. coronata var. notatior, and special management may be needed to
address them.
The occurrence complex that occupies the floodplain of the San
Jacinto River between the Ramona Expressway and Railroad Canyon
Reservoir is threatened by non-agriculture related clearing,
agricultural activity, including irrigated crops and alfalfa farming,
and a proposed flood control project (Bramlet 1996, Roberts and
McMillan 1997, Dudek and Associates 2003). The occurrence complex that
occupies the San Jacinto Wildlife Area/Mystic Lake is threatened by
invasive and weedy plant species introduced as food sources for
waterfowl and also remaining from historical agricultural production
(Bramlet 1996). Alteration of habitat for duck ponds (Roberts and
McMillan 1997) and off-road vehicle activity (CNDDB 2003) are also
management concerns in this area. The occurrence complex located within
the Salt Creek Vernal Pool Complex is threatened by agricultural
activities, including dry-land farming, weed abatement and fire
suppression practices, grazing, invasion of non-native plant species,
alteration of hydrology, fragmentation, and a proposed road realignment
project (CNDDB 2003, Bramlet 1996, Roberts and McMillan 1997, Dudek and
Associates 2003). The occurrence complex at Alberhill Creek is located
in a rapidly urbanizing area and is subject to the threat of increased
human-associated disturbance. Actions that alter habitat suitable for
the species or affect the natural hydrologic processes upon which the
species depends could threaten the species in this area.
In our proposed critical habitat designation (69 FR 59844), we
delineated essential habitat units to provide for the conservation of
Atriplex coronata var. notatior at the four occurrence complexes where
it is known to occur. These essential areas total approximately 15,232
ac (6,167 ha) of habitat. Although all four complexes are considered
essential to the conservation of A. coronata var. notatior, not all
known populations within these complexes are considered essential to
the conservation of the species. We included those populations which
are considered essential to the conservation of the species within the
essential habitat units delineated in the proposed critical habitat
designation (69 FR 59844).
Section 10(a)(1)(B) of the Act authorizes us to issue permits for
the take of listed species incidental to otherwise lawful activities.
An incidental take permit application must be supported by an HCP that
identifies conservation measures that the permittee agrees to implement
for the species to minimize and mitigate the impacts of the requested
incidental take. We often exclude non-Federal public lands and private
lands that are covered by an existing operative HCP and executed IA
under section 10(a)(1)(B) of the Act from designated critical habitat
because the benefits of exclusion outweigh the benefits of inclusion as
discussed in section 4(b)(2) of the Act.
The Western Riverside MSHCP species specific conservation
objectives and written criteria provide for the conservation of the
species within all four delineated essential habitat units. Therefore,
no lands are being designated as critical habitat for this species.
Please refer to the proposed rule (69 FR 59844) for details on how we
determined the boundaries of the essential habitat units. Peer
Reviewers provided comments regarding their recommendations for
revisions to the essential habitat unit boundaries during the public
comment period for this final rule. We have addressed their
recommendations in the ``Peer Reviewer Comments'' section of this final
rule and incorporated their recommendations throughout the rule as
appropriate.
Permittees under the Western Riverside MSHCP are obligated to adopt
and maintain ordinances or resolutions as necessary, and amend their
general plans as appropriate, to implement the requirements and to
fulfill the purposes of the MSHCP and its associated IA and Permit (see
IA for the MSHCP, page 41). In its first year of implementation, the
MSHCP has already resulted in conservation and management actions that
address threats to Atriplex coronata var. notatior on private lands.
For example, the City of Hemet has adopted two ordinances that have
halted manure dumping within the City, and allowed the conditioning and
coordination of development efforts such that habitat necessary for the
conservation of
[[Page 59967]]
MSHCP Covered Species within the Criteria Area is protected and will
not become fragmented (Ordinance No. 1666 and Ordinance No. 1742). For
further information on management actions proposed for A. coronata var.
notatior under the MSHCP see the ``Relationship of Critical Habitat to
the Western Riverside Multiple Species Habitat Conservation Plan''
section below.
Critical Habitat Designation
We evaluated all 3 Units (four occurrence complexes) with features
essential for the conservation of Atriplex coronata var. notatior for
exclusion from critical habitat pursuant to section 4(b)(2) of the Act.
All three Units are within the conservation area of the approved
Western Riverside MSHCP in Riverside County. On the basis of our
evaluation of the conservation measures afforded A. coronata var.
notatior under the MSHCP, we have concluded that the benefit of
excluding the lands covered by this MSHCP outweighs the benefit of
including them as critical habitat (see discussion in section entitled
``Exclusions Under Section 4(b)(2) of the Act''). Thus, we are
excluding the lands covered by this MSHCP from the designation of
critical habitat for this taxon, pursuant to section 4(b)(2) of the
Act. Because we have excluded all areas of habitat with essential
features from the proposal, we are designating zero acres (0 ac) (0 ha)
of critical habitat in this final rule for A. coronata var. notatior.
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.'' The Service uses the guidance issued in the Director's
December 9, 2004, memorandum when making adverse modification
determinations under section 7 of the Act.
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. 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
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)). 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 their actions do not 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.
Federal activities that may affect Atriplex coronata var. notatior
will continue to require section 7 consultation. Activities on private
or State lands requiring a permit from a Federal agency, such as a
permit from the U.S. Army Corps of Engineers 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. However, no lands are being designated as critical habitat
for Atriplex coronata var. notatior because all habitat areas with
essential features are within the conservation area of the approved
Western Riverside MSHCP.
If you have questions regarding whether specific activities would
require consultation under section 7 of the Act, contact the Field
Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section).
Requests for copies of the regulations on listed wildlife and inquiries
about prohibitions and permits may be addressed to the U.S. Fish and
Wildlife Service, Portland Regional Office, 911 NE. 11th Avenue,
Portland, OR 97232 (telephone 503/231-6131; facsimile 503/231-6243).
[[Page 59968]]
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 available after taking into consideration the economic impact,
impact on national security, 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
such 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. Consequently, we
may exclude an area from critical habitat based on economic impacts,
impacts on national security, or other relevant impacts such as
preservation of conservation partnerships, if we determine the benefits
of excluding an area from critical habitat outweigh the benefits of
including the area in critical habitat, provided the action of
excluding the area will not result in the extinction of the species.
Relationship of Critical Habitat to the Western Riverside Multiple
Species Habitat Conservation Plan
We are excluding critical habitat from approximately 15,232 ac
(6,167 ha) of non-Federal lands within the Western Riverside County
MSHCP under section 4(b)(2) of the Act. Atriplex coronata var. notatior
is a covered species under the Western Riverside County MSHCP. We
completed our section 7 consultations on the issuance of the section
10(a)(1)(B) permit for the Western Riverside County MSHCP on June 22,
2004. This approved and legally operative HCP provides special
management and protection for the physical and biological features
essential for the conservation of A. coronata var. notatior that exceed
the level of regulatory control that would be afforded this species by
the designation of critical habitat. We have determined that the
benefits of excluding critical habitat within this HCP from the
critical habitat designation will outweigh the benefits of including
them as critical habitat and this exclusion will not result in the
extinction of A. coronata var. notatior.
Below we first provide general background information on the
Western Riverside County MSHCP, followed by an analysis pursuant to
section 4(b)(2) of the Act of the benefits of including HCP lands
within the critical habitat designation, an analysis of the benefits of
excluding HCP lands, and an analysis of why we believe the benefits of
exclusion are greater than the benefits of inclusion. Finally, we
provide a determination that exclusion of the HCP lands will not result
in extinction of Atriplex coronata var. notatior.
The Western Riverside County MSHCP establishes a multiple species
conservation program to minimize and mitigate the expected loss of
habitat values and, with regard to ``covered'' animal species, the
incidental take of such species. The MSHCP Plan Area encompasses
approximately 1.26 million ac (509,900 ha) in western Riverside County,
including the entire range of Atriplex coronata var. notatior, which is
a covered species under this plan. The Western Riverside County MSHCP
is a subregional plan under the State's Natural Communities
Conservation Plan (NCCP) and was developed in cooperation with the
California Department of Fish and Game. The Service concluded that the
MSHCP would not jeopardize the continued existence of Atriplex coronata
var. notatior in its Biological and Conference Opinion (Service 2004).
The MSHCP has five species-specific conservation objectives to
conserve and monitor Atriplex coronata var. notatior populations: (1)
Include within the MSHCP Conservation Area at least 6,900 acres of
suitable habitat (grassland and playas and vernal pools within the San
Jacinto River, Mystic Lake and Salt Creek portions of the MSHCP
Conservation Area); (2) include within the MSHCP Conservation Area the
Alberhill Creek locality as well as the three Core Areas, located along
the San Jacinto River from the vicinity of Mystic Lake southwest to the
vicinity of Perris and in the upper Salt Creek drainage west of Hemet;
(3) conduct surveys for Atriplex coronata var. notatior as part of the
project review process for public and private projects within the
Criteria Area where suitable habitat is present. Atriplex coronata var.
notatior located as a result of survey efforts shall be conserved in
accordance with procedures described within the MSHCP; (4) include
within the MSHCP Conservation Area the floodplain along the San Jacinto
River consistent with Objective 1. Floodplain processes will be
maintained along the river in order to provide for the distribution of
the species to shift over time as hydrologic conditions and seed bank
sources change; and (5) include within 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. Floodplain processes will be maintained in order to
provide for the distribution of the species to shift over time as
hydrologic conditions and seed bank sources change.
Approximately 77 percent of the essential habitat for Atriplex
coronata var. notatior (11,760 acres of the 15,232 acres of essential
habitat) would be protected on existing Public/Quasi-Public Lands (PQP)
lands and conceptual reserve design lands within the Western Riverside
County MSCHP (MSHCP Conservation Area) (see objectives 1 and 2). This
essential habitat is located at Alber Hill Creek, San Jacinto Wildlife
Area, along the floodplain of the San Jacinto River, and upper Salt
Creek west of Hemet and includes many occurrences of A. coronata var.
notatior (see objectives 1, 2 and 4). The assembly of the MSHCP
Conservation Area is anticipated to occur over the life of the permit.
The MSHCP also includes monitoring and management requirements for A.
coronata var. notatior. Known localities within the MSHCP Conservation
Area will be monitored every eight years. Under the MSHCP, reserve
managers are responsible for the maintenance and enhancement of
floodplain processes on the San Jacinto River and Upper Salt Creek.
Particular management emphasis will be given to preventing alteration
of hydrology and floodplain dynamics, farming, fire and fire
suppression activities, off-road vehicle use, and competition from non-
native plant species. Thus, a significant amount of essential habitat
and occurrences of Atriplex coronata var. notatior are expected to be
conserved and managed in the MSHCP Conservation Area.
Approximately 14 percent of the essential habitat (2,202 acres of
the 15,232 acres of essential habitat) provides the watershed for the
MSHCP Conservation Area at upper Salt Creek west of Hemet. These
watershed lands are not part of the MSHCP Conservation Area and are not
known to be occupied by Atriplex coronata var. notatior. The Guidelines
Pertaining to the Urban/Wildlands Interface is to ensure that the
quantity and quality of runoff discharged to the MSHCP Conservation
Area is not altered in an adverse way when compared with existing
conditions. The function of these lands would be to maintain the
quantity and quality of runoff discharged to the MSHCP Conservation
Area. While these lands are expected to be developed, this guideline
would ensure that future urbanization would maintain the existing water
quality and quantity needed to sustain the seasonal wetlands occupied
by Atriplex coronata var. notatior.
[[Page 59969]]
Numerous processes are incorporated into the MSHCP that allow for
Service oversight of MSHCP implementation. These processes include (1)
annual reporting requirements; joint review of projects proposed within
the Criteria Area; participation on the Reserve Management Oversight
Committee; and a Reserve Assembly Accounting Process which will be
implemented to ensure that conservation of lands occurs in rough
proportionality to development, are assembled in the configuration as
generally described in the MSHCP, and that conservation goals and
objectives are being achieved. The Service is also responsible for
reviewing Determinations of Biologically Equivalent or Superior
Preservation that are proposed under the Protection of Species
Associated with Riparian/Riverine Areas and Vernal Pools policy and for
reviewing minor amendment projects, such as the State Route 79
Realignment project and the San Jacinto River Flood Control project,
for consistency with the requirements of the MSHCP.
Thus, the Western Riverside County MSHCP provides significant
conservation benefits to Atriplex coronata var. notatior. These
benefits include a MSHCP Conservation Area that protects a significant
percentage of the essential habitat and occurrences for Atriplex
coronata var. notatior and long-term management of the preserve areas.
The MSHCP also provides avoidance and minimization measures, under the
Guidelines Pertaining to the Urban/Wildlands Interface that provide
benefits to the species and watershed for Atriplex coronata var.
notatior. Finally, the MSHCP provides oversight to ensure effective
implementation.
(1) Benefits of Inclusion
Overall, we believe that there is minimal benefit from designating
critical habitat for Atriplex coronata var. notatior within the Western
Riverside County MSHCP because, as explained above, these lands are
already managed or will be managed for the conservation of Atriplex
coronata var. notatior. Below we discuss benefits of inclusion of these
HCP lands.
A benefit of including an area within a critical habitat
designation is the protection provided by section 7(a)(2) of the Act
that directs Federal agencies to ensure that their actions do not
result in the destruction or adverse modification of critical habitat.
The designation of critical habitat and the analysis to determine if
the proposed Federal action may result in the destruction or adverse
modification of critical habitat for Atriplex coronata var. notatior
may provide a different level of protection under section 7(a)(2) of
the Act that is separate from the obligation of a Federal agency to
ensure that their actions are not likely to jeopardize the continued
existence of Atriplex coronata var. notatior. Under the Gifford Pinchot
decision, critical habitat designations may provide greater benefits to
the recovery of a species than was previously believed, but it is not
possible to quantify this benefit at present. However, the protection
provided under section 7(a)(2) of the Act is still a limitation on the
harm that occurs to the species or critical habitat as opposed to a
requirement to provide a conservation benefit.
The inclusion of these 15,232 ac (6,167 ha) of non-Federal land as
critical habitat may provide some additional Federal regulatory
benefits for the species consistent with the conservation standard
based on the Ninth Circuit Court's decision in Gifford Pinchot. A
benefit of inclusion would be the requirement of a Federal agency to
ensure that their actions on these non-Federal lands do not likely
result in the destruction or adverse modification of critical habitat.
This additional analysis to determine destruction or adverse
modification of critical habitat is likely to be small because the
lands are not under Federal ownership and any Federal agency proposing
a Federal action on these 15,232 ac (6,167 ha) of non-Federal lands
would likely consider the conservation value of these lands as
identified in the Western Riverside County MSHCP and take the necessary
steps to avoid jeopardy or the destruction or adverse modification of
critical habitat. In any event, they will still need to consult with us
to avoid jeopardy to the species, and we generally consider habitat
impacts in such jeopardy consultations.
The areas excluded as critical habitat include the seasonal
wetlands that are occupied by Atriplex coronata var. notatior and the
surrounding watershed (the watershed is not occupied by A. coronata
var. notatior). If these areas were designated as critical habitat, any
actions with a Federal nexus, such as the issuance of a permit under
section 404 of the Clean Water Act, which might adversely affect
critical habitat would require a consultation with us, as explained
previously, in Effects of Critical Habitat Designation. However,
inasmuch as portions of these areas are currently occupied by the
species, consultation for Federal activities which might adversely
impact the species would be required even without the critical habitat
designation. For the surrounding watershed not occupied by A. coronata
var. notatior, the Federal action agency would need to determine if the
proposed action would affect the species rather than making a
determination if the proposed action would cause destruction or adverse
modification of critical habitat. A potential benefit of critical
habitat would be to signal the importance of the surrounding watershed
not occupied by A. coronata var. notatior to Federal agencies and to
ensure their actions do not result in the destruction or adverse
modification of critical habitat pursuant to section 7(a)(2) of the
Act.
This potential benefit of critical habitat is reduced by the
measures contained in the HCP to maintain watersheds for endangered
species and seasonal wetlands. The Western Riverside County MSHCP
provides Guidelines Pertaining to the Urban/Wildlands Interface. Under
this guideline, proposed developments in proximity to MSHCP
Conservation Areas shall incorporate measures, including measures
required through the National Pollutant Discharge Elimination System
requirements, to ensure that the quantity and quality of runoff
discharged to the MSHCP Conservation Area is not altered in an adverse
way when compared with existing conditions. In particular, measures
shall be put in place to avoid discharge of untreated surface runoff
from developed and paved areas into the MSHCP Conservation Area.
Stormwater systems shall be designed to prevent the release of toxins,
chemicals, petroleum products, exotic plant materials or other elements
that might degrade or harm biological resources or ecosystem processes
within the MSHCP Conservation Area. Thus, this HCP provide a greater
level of protection and management for the watersheds of seasonal
wetlands occupied by Atriplex coronata var. notatior than the simple
avoidance of adverse effects to critical habitat.
If these areas were included as critical habitat, primary
constituent elements would be protected from destruction or adverse
modification by federal actions using a conservation standard based on
the Ninth Circuit Court's decision in Gifford Pinchot. This requirement
would be in addition to the requirement that proposed Federal actions
avoid likely jeopardy to the species' continued existence. However, for
those seasonal wetland areas occupied by Atriplex coronata var.
notatior and the surrounding watershed, consultation for activities
which may adversely affect the species, would be required even without
the critical habitat designation.
[[Page 59970]]
In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir.
2001), the Fifth Circuit Court of Appeals stated that the
identification of habitat areas essential to the conservation of the
species can provide informational benefits to the public, State and
local governments, scientific organizations, and Federal agencies. The
court also noted that heightened public awareness of the plight of
listed species and their habitats may facilitate conservation efforts.
The inclusion of an area as critical habitat may focus and contribute
to conservation efforts by other parties by clearly delineating areas
of high conservation values for certain species. However, we believe
that this educational benefit has largely been achieved for Atriplex
coronata var. notatior. The public outreach and environmental impact
reviews required under the National Environmental Policy Act for the
Western Riverside County MSHCP provided significant opportunities for
public education regarding the conservation of the areas occupied by
Atriplex coronata var. notatior and the surrounding watershed. In
addition, there has been public notice and opportunity for comment on
this proposal, which identified lands eligible for designation as
critical habitat, and on the economic analysis for the proposal, which
also identified those lands. There would be little additional
informational benefit gained from including these lands as critical
habitat because of the level of information that has been made
available to the public as part of these regional planning efforts.
Consequently, we believe that the informational benefits are already
provided even though this area is not designated as critical habitat.
Additionally, the purpose of the Western Riverside County MSHCP to
provide protection and enhancement of habitat for Atriplex coronata
var. notatior is already well established among State and local
governments, and Federal agencies.
As discussed below, however, we believe that designating any non-
Federal lands within the Western Riverside County MSHCP as critical
habitat would provide little additional educational and Federal
regulatory benefits for the species. Because portions of the excluded
seasonal wetlands are occupied by the species, there must be
consultation with the Service over any action which may affect these
populations. For the surrounding watershed not occupied by Atriplex
coronata var. notatior, the Western Riverside County MSHCP provide
management measures to protect the watershed for these seasonal
wetlands. The additional educational benefits that might arise from
critical habitat designation have been largely accomplished through the
public review and comment of the environmental impact documents which
accompanied the development of the Western Riverside County MSHCP, the
public notice and comment period on this proposal, which identified
lands eligible for designation as critical habitat, and on the economic
analysis for the proposal, which also identified those lands, and the
recognition by the County of Riverside of the presence of Atriplex
coronata var. notatior and the value of their lands for the
conservation and recovery of the species. The areas identified for
conservation in the Western Riverside County MSHCP under the species-
specific conservation objectives (San Jacinto River, Mystic Lake, Salt
Creek, and Alberhill Creek portions of the MSHCP Conservation Area) are
the same lands we have identified as providing the physical and
biological features essential to the conservation of this species.
For 30 years prior to the Ninth Circuit Court's decision in Gifford
Pinchot, the Fish and Wildlife Service equated the jeopardy standard
with the standard for destruction or adverse modification of critical
habitat. However, in Gifford Pinchot the court noted the government, by
simply considering the action's survival consequences, was reading the
concept of recovery out of the regulation. The court, relying on the
CFR definition of adverse modification, required the Service to
determine whether recovery was adversely affected. The Gifford Pinchot
decision arguably made it easier to reach an ``adverse modification''
finding by reducing the harm, affecting recovery, rather than the
survival of the species. However, there is an important distinction:
section 7(a)(2) limits harm to the species either through jeopardy or
destruction or adverse modification of its habitat where there is a
Federal nexus to the potential harm. It does not affect purely State or
private actions on State or private land, nor does it require positive
habitat improvements or enhancement of the species status. Thus, any
management plan which has enhancement or recovery as the management
standard will almost always provide more benefit than the critical
habitat designation.
(2) Benefits of Exclusion
As mentioned above, the Western Riverside County MSHCP provide for
the conservation of Atriplex coronata var. notatior through avoidance,
minimization, and/or mitigation of impacts, management of habitat, and
maintenance of watershed. The Western Riverside County MSHCP provides
for protection of the PCEs, and addresses special management needs such
as edge effects and maintenance of hydrology. Designation of critical
habitat would therefore not provide as great a benefit to the species
as the positive management measures provided in this HCP.
The benefits of excluding lands within HCPs from critical habitat
designation include relieving landowners, communities, and counties of
any additional regulatory burden that might be imposed by a critical
habitat designation consistent with the conservation standard based on
the Ninth Circuit Court's decision in Gifford Pinchot. Many HCPs,
particularly large regional HCPs take many years to develop and, upon
completion, become regional conservation plans that are consistent with
the recovery objectives for listed species that are covered within the
plan area. Additionally, many of these HCPs provide conservation
benefits to unlisted, sensitive species. Imposing an 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 the critical habitat designation may result in additional
regulatory requirements than faced by other parties who have not
voluntarily participated in species conservation. Designation of
critical habitat within the boundaries of approved HCPs could be viewed
as a disincentive to those entities currently developing HCPs or
contemplating them in the future.
Another benefit from excluding these lands is to maintain the
partnerships developed among the County of Riverside, State of
California, and the Service to implement the Western Riverside County
MSHCP. Instead of using limited funds to comply with administrative
consultation and designation requirements which cannot provide
protection beyond what is currently in place, the partners could
instead use their limited funds for the conservation of this species.
A related benefit of excluding lands within HCPs from critical
habitat designation is the unhindered, continued ability to seek new
partnerships with future HCP participants including States, Counties,
local jurisdictions, conservation organizations, and private
landowners,
[[Page 59971]]
which together can implement conservation actions that we would be
unable to accomplish otherwise. If lands within HCP plan areas are
designated as critical habitat, it would likely have a negative effect
on our ability to establish new partnerships to develop HCPs,
particularly large, regional HCPs that involve numerous participants
and address landscape-level conservation of species and habitats. By
excluding these lands, we preserve our current partnerships and
encourage additional conservation actions in the future.
Furthermore, an HCP or NCCP/HCP application must itself be
consulted upon. While this consultation will not look specifically at
the issue of adverse modification to critical habitat, unless critical
habitat has already been designated within the proposed plan area, it
will determine if the HCP jeopardizes the species in the plan area. In
addition, Federal actions not covered by the HCP in areas occupied by
listed species would still require consultation under section 7 of the
Act. HCP and NCCP/HCPs typically provide for greater conservation
benefits to a covered 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) and the HCP ``No Surprises'' regulation (63 FR 8859). Such
assurances are typically not provided by section 7 consultations that,
in contrast to HCPs, often do not commit the project proponent to long-
term special management or protections. Thus, a consultation typically
does not accord the lands it covers the extensive benefits a HCP or
NCCP/HCP provides. The development and implementation of HCPs or NCCP/
HCPs provide other important conservation benefits, including the
development of biological information to guide the conservation efforts
and assist in species conservation, and the creation of innovative
solutions to conserve species while allowing for development. In the
biological opinions for the Western Riverside County MSHCP, the Service
concluded that issuance of section 10(a)(1)(B) permit for this plan is
not likely to result in jeopardy to the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We have reviewed and evaluated the exclusion of critical habitat
for Atriplex coronata var. notatior from approximately 15,232 ac (6,164
ha) of non-Federal lands within the Western Riverside County MSHCP and
based on this evaluation, we find that the benefits of exclusion (avoid
increased regulatory costs which could result from including those
lands in this designation of critical habitat, ensure the willingness
of existing partners to continue active conservation measures, maintain
the ability to attract new partners, and direct limited funding to
conservation actions with partners) of the lands containing features
essential to the conservation of Atriplex coronata var. notatior within
the Western Riverside County MSHCP outweigh the benefits of inclusion
(limited educational and regulatory benefits, which are largely
otherwise provided for under the HCP) of these lands as critical
habitat. The benefits of inclusion of these 15,232 ac (6,164 ha) of
non-Federal lands as critical habitat are lessened because of the
significant level of conservation provided Atriplex coronata var.
notatior under the Western Riverside County MSHCP (conservation of
occupied and potential habitat, monitoring, and providing hydrology).
In contrast, the benefits of exclusion of these 15,232 ac (6,164 ha) of
non-Federal lands as critical habitat are increased because of the high
level of cooperation by the County of Riverside, State of California,
and the Service to conserve this species and these partnerships exceed
any conservation value provided by a critical habitat designation.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these 15,232 ac (6,164 ha) of non-
Federal lands will not result in extinction of Atriplex coronata var.
notatior since these lands are conserved or will be conserved and
managed for the benefit of this species pursuant to the Western
Riverside County MSHCP. This HCP includes specific conservation
objectives, avoidance and minimization measures, and management that
exceed any conservation value provided as a result of a critical
habitat designation. The Service concluded that the Western Riverside
County MSHCP would not jeopardize the continued existence of N.
fossalis Atriplex coronata var. notatior in our Biological and
Conference Opinion because of the management measures and level of
conservation.
The jeopardy standard of section 7 and routine implementation of
habitat conservation through the section 7 process also provide
assurances that the species will not go extinct. The exclusion leaves
these protections unchanged from those that would exist if the excluded
areas were designated as critical habitat.
Additionally, the species within the Western Riverside County MSHCP
occurs on lands protected and managed either explicitly for the species
or indirectly through more general objectives to protect natural
values. These factors acting in concert with the other protections
provided under the Act, lead us to find that exclusion of these 15,232
ac (6,164 ha) within the Western Riverside County MSHCP will not result
in extinction of Atriplex coronata var. notatior.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific data information available
and to consider the economic and other relevant impacts of designating
a particular area as critical habitat. We may exclude areas from
critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on August 31, 2005, (70 FR 51739). We
accepted comments on the draft analysis until September 14, 2005.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for A. coronata var. notatior. This information is intended to
assist the Secretary in making decisions about whether the benefits of
excluding particular areas from the designation outweigh the benefits
of including those areas in the designation. This economic analysis
considers the economic efficiency effects that may result from the
designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
[[Page 59972]]
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
There is no economic impact within the final designation because
the Service has not designated any lands as critical habitat for
Atriplex coronata var. notatior.
A copy of the final economic analysis and supporting documents are
included in our administrative record and may be obtained by contacting
U.S. Fish and Wildlife Service, Branch of Endangered Species (see
ADDRESSES section) or by download from the Internet at http://carlsbad.fws.gov.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues.
However, because we are designating zero acres of critical habitat,
this rule would not have an annual effect on the economy of $100
million or more or affect the economy in a material way. Due to the
time line for publication in the Federal Register, the Office of
Management and Budget (OMB) did not formally review this rule. As
explained above, we prepared an economic analysis of this action. We
used 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. We also used it to help determine whether to
exclude any area from critical habitat, as provided for under section
4(b)(2), if we determine that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless we determine, based on the best scientific data available, that
the failure to designate such area as critical habitat will result in
the extinction of the species.
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. In our proposed rule,
we withheld our determination of whether this designation would result
in a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if this rule would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities (e.g., residential and
commercial development). We considered each industry or category
individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by the designation of critical habitat.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies; non-Federal
activities are not affected by the designation. Typically, when
proposed critical habitat designations are made final, Federal agencies
must consult with us if their activities may affect that designated
critical habitat. Consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process. However, since no critical habitat is
being designated, no consultations would be necessary.
In our economic analysis of this proposed designation, we evaluated
the potential economic effects on small business entities resulting
from conservation actions related to the listing of this species and
proposed designation of its critical habitat. Because zero acres of
critical habitat are being designated, there would be no additional
costs to small businesses, and, thus, this rule would not result in a
``significant effect'' for the small business entities in Riverside
County. As such, we are certifying that this rule will not result in a
significant economic impact on a substantial number of small entities.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This rule is considered a
significant regulatory action under E.O. 12866 because it raises novel
legal and policy issues, but it is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant action under E.O. 13211, and no Statement of Energy Effects
is required. Please refer to Appendix A of our draft economic analysis
of this proposed designation for a more detailed discussion of
potential effects on energy supply.
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
[[Page 59973]]
condition of federal assistance.'' It also excludes ``a duty arising
from participation in a voluntary Federal program,'' unless the
regulation ``relates 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. Non-Federal entities that 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. However, 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 we are designating zero acres of
critical habitat. Consequently, we do not believe that critical habitat
designation would significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
desinating critical habitat for Atriplex coronata var. notatior.
Critical habitat designation does not affect landowner actions that do
not require Federal funding or permits, nor does it preclude
development of habitat conservation programs or issuance of incidental
take permits to permit actions that do require Federal funding or
permits to go forward. Because we are designating zero acres of
critical habitat for Atriplex coronata var. notatior, this rule does
not pose significant takings implications.
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 final
critical habitat designation with appropriate State resource agencies
in California. The designation of zero acres of critical habitat in
areas currently occupied by Atriplex coronata var. notatior would have
no impact on State and local governments and their activities. The
process of identifying habitat with essential features may have some
benefit to State and local governments in that the areas essential to
the conservation of these species are more clearly defined, and the
primary constituent elements of the habitat necessary to the survival
of the species are identified. While 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 making them wait for case-by-case section 7 consultation 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 are designating zero acres of critical habitat in
accordance with the provisions of the Endangered Species Act. This
final 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 Atriplex coronata var.
notatior.
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 with features essential for the conservation
of Atriplex coronata var. notatior. Critical habitat for A. coronata
var. notatior has not been designated on Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Carlsbad Fish and
Wildlife Office (see ADDRESSES section).
Author(s)
The primary author of this package is 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.
[[Page 59974]]
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
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.
0
2. In Sec. 17.12(h), in the List of Endangered and Threatened Plants,
revise the entry for ``Atriplex coronata var. notatior'' under
``FLOWERING PLANTS'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
------------------------------------------------- Historic range Family Status When listed Critical habitat Special
Scientific name Common name rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS
* * * * * * *
Atriplex coronata var. San Jacinto U.S.A. (CA)..... Chenopodiaceae -- E 650 17.96 (a) (No areas NA
notatior. Valley Goosefoot designated)
crownscale. Family.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.96, amend paragraph (a) by adding an entry for Atriplex
coronata var. notatior in alphabetical order under Family
Chenopodiaceae to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Chenopodiaceae: Atriplex coronata var. notatior (San Jacinto
Valley crownscale)
Pursuant to section 4(b)(2) of the Act, we have excluded all areas
determined to meet the definition of critical habitat under section
3(5)(A) of the Act for Atriplex coronata var. notatior. Therefore, no
specific areas are designated as critical habitat for this species.
* * * * *
Dated: September 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-20146 Filed 10-12-05; 8:45 am]
BILLING CODE 4310-55-P