[Federal Register: December 10, 2002 (Volume 67, Number 237)]
[Rules and Regulations]
[Page 76029-76053]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de02-8]
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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 Deinandra conjugens (Otay tarplant); Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH00
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Deinandra conjugens (Otay tarplant)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for Deinandra conjugens [= Hemizonia conjugens] (Otay
tarplant) pursuant to the Endangered Species Act of 1973, as amended
(Act). Deinandra conjugens was federally listed as threatened (under
the name Hemizonia conjugens) throughout its range in southwestern
California and northwestern Estado de Baja California, Mexico in 1998.
The designation includes approximately 2,560 hectares (ha) (6,330 acres
(ac)) in San Diego County, California, as critical habitat for
Deinandra conjugens.
DATES: The effective date of this rule is January 9, 2003.
ADDRESSES: You may inspect the supporting record for this rule at the
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010
Hidden Valley Road, Carlsbad, CA 92009, by appointment during normal
business hours.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, at the above address; telephone 760/431-9440,
facsimile 760/431-5902. Information regarding this designation is
available in alternate formats upon request.
SUPPLEMENTARY INFORMATION:
Background
Deinandra conjugens (Otay tarplant) was known as Hemizonia
conjugens when it was listed on October 13, 1998 (63 FR 54938). Since
then, studies analyzing plant and floral morphology and genetic
information prompted Baldwin (1999) to revise the Madiinae (tarplants),
a tribe in the Asteraceae (sunflower family), and reclassify several
taxa into new or different genera. As a result, Deinandra conjugens is
now the accepted scientific name for Hemizonia conjugens. This
taxonomic change does not alter the limits or definition of Deinandra
conjugens. Because this taxonomic change was published and is generally
accepted by the scientific community, we are changing the name of
Hemizonia conjugens to Deinandra conjugens in 50 CFR 17.12 (h), and
will use Deinandra conjugens in this final rule.
Deinandra conjugens was first described by David D. Keck (1958) as
Hemizonia conjugens based on a specimen collected by L.R. Abrams in
1903 from river bottom land in the Otay Valley area of San Diego
County, California. Deinandra conjugens is a glandular, aromatic annual
plant in the Asteraceae. It has a branching stem that generally ranges
from 5 to 25 centimeters (2 to 10 inches) in height with deep green or
gray-green leaves covered with soft, shaggy hairs. The yellow flower
heads are composed of 8 to 10 ray flowers and 13 to 21 disk flowers
with hairless or sparingly downy corollas (fused petals). The
phyllaries (small bracts associated with the flower heads) are ridged
and have short-stalked glands and large, stalkless, flat glands near
the margins. Deinandra conjugens occurs within the range of Deinandra
fasciculata [=H. fasciculata] (fasciculated tarplant) and Deinandra
paniculata [=H. paniculata] (San Diego tarplant). Deinandra conjugens
can be distinguished from other members of the genus by its ridged
phyllaries, black anthers (part of flower that produces pollen), and by
the number of disk and ray flowers. The disk and ray flowers each
produce different types of seeds (heterocarpy), which has been
correlated to differential germination responses (Tanowitz et al.
1987).
Most known Deinandra conjugens occurrences are closely associated
with particular soils, vegetation types, and elevation range. The
majority of Deinandra conjugens occurrences are associated with clay
soils and with grasslands, coastal sage scrub, or maritime succulent
scrub. Information from herbarium records at the San Diego Natural
History Museum (SDNHM) and data from the California Natural Diversity
Database (CNDDB 2002) records indicates that Deinandra conjugens has a
narrow geographic and elevation range.
The distribution of Deinandra conjugens is strongly correlated with
clayey soils, subsoils, or lenses (isolated area of clay soil) (Bauder
et al. 2002). Such soils typically support grasslands, but may support
some woody vegetation. Much of the area with clay soils and subsoils
within the historical range of Deinandra conjugens likely was once
vegetated with native grassland, open coastal sage scrub and maritime
succulent scrub, which provided suitable habitat for Deinandra
conjugens. Based on Geographic Information Systems (GIS) analysis, most
current and historical Deinandra conjugens occurrences are found on
clay soils or lenses in one of the following soil series: Diablo;
Olivenhain; Linne; Salinas; Huerhuero; Auld; Bosanko; Friant; and San
Miguel-Exchequer rocky silt loams (Bauder et al. 2002).
The occurrence of Deinandra conjugens is also strongly associated
with particular vegetation types. The species is found in vegetation
communities classified as, but not limited to, grasslands, open coastal
sage scrub, maritime succulent scrub, and the margins of some disturbed
sites and cultivated fields (CNDDB 2002; Keck 1959; Keil 1993; CNPS
2001; David Hogan, San Diego Biodiversity Project, in litt. 1990; Bruce
Baldwin, Jepson Herbarium, pers. comm., 2001; Mark Dodero, RECON, pers.
comm., 2001; Scott McMillan, McMillan Biological Consulting, pers.
comm., 2001). Plant species common to these vegetation communities
include Nassella spp. (needlegrass), Bloomeria crocea (common
goldenstar), Dichelostemma pulchella (blue dicks), Chlorogalum spp.
(soap plant), Bromus spp. (brome grass), Avena spp. (oats), Deinandra
fasciculata (fasciculated tarweed), Lasthenia californica (common
goldfields), Artemisia californica (California sagebrush), Eriogonum
fasciculatum (flat-top buckwheat), Lotus scoparius (deer weed), Salvia
spp. (sage), Mimulus aurantiacus (bush monkeyflower), Malacothamnus
fasciculatum (bushmallow), Malosma laurina (laurel sumac), Rhus ovata
(sugar bush), R. integrifolia (lemonade berry), Lycium spp. (boxthorn),
Euphorbia misera (cliff spurge), Simmondsia chinensis (jojoba), Opuntia
spp. (prickly pear and cholla cactuses), Ferocactus viridescens
(coastal barrel cactus), Ambrosia chenopodiifolia (San Diego bur sage),
and Dudleya spp. (live-forevers).
Information acquired since the listing indicates that the
historical range for Deinandra conjugens in San Diego County,
California, is extended from the Mexican border north to Spring Valley
and Paradise Valley, a distance of about 24 kilometers (km) (15 miles
(mi)), and from Interstate 805 east to Otay Lakes Reservoir, a distance
of about 13 km (8 mi) (herbarium records at the SDNHM and CNDDB 2002).
Further, based on museum specimens and database records, the
elevational range for Deinandra conjugens appears to be between 25 and
300 meters (m) (80 and 1,000 feet (ft)).
Typically, Deinandra conjugens and other tarplants cannot produce
viable seeds without cross pollinating with
[[Page 76031]]
other individuals (i.e., are essentially self-incompatible) (Keck 1959;
Tanowitz 1982; B. Baldwin, in litt. 2001). Gene flow among plant
populations through pollination is important for the long-term survival
of self-incompatible species (Ellstrand 1992). Gene flow in Deinandra
conjugens is essentially achieved through pollen movement among
occurrences. Because small occurrences of Deinandra conjugens may
facilitate greater gene flow, conservation of these may be critical to
maintaining genetic diversity in Deinandra conjugens. Likely
pollinators of Deinandra conjugens include, but are not limited to, bee
flies (Bombylliidae); hover flies (Syrphidae); digger bees (Apidae);
carpenter and cuckoo bees (Anthophoridae); leaf mason and leaf cutting
bees (Megachilidae); and metallic bees (Halictidae) (Krombein et al.
1979; Bauder et al. 2002; M. Dodero, pers. comm., 2001). The following
bee species have been documented visiting Deinandra species: Nomia
melanderi; Colletes angelicus; Nomadopsis helianthi; Ventralis
claypolei ausralior; Anthidiellum notatum robertsoni; Heriades
occidentalis; Anthocopa hemizoniae; Ashmeadiella californica
californica; Svastra sabinensis nubila; Melissodes tessellata; M.
moorei; M. personatella; M. robustior; M. semilupina; M. lupina; M.
stearnsi; Anthophora urbana urbana; and A. curta curta (Krombein et al.
1979).
Deinandra conjugens fruits are each one-seeded and are likely to be
dispersed by small to large-sized mammals and birds based on the sticky
nature of the remaining flower parts that are attached to the fruits
and the discontinuous distribution of other tarplants (B. Baldwin, in
litt. 2001; M. Dodero, pers. comm., 2001; Elizabeth Friar, Claremont
Graduate University, pers. comm., 2001; Gjon Hazard, (Service), pers.
comm., 2001). Potential seed/fruit dispersal organisms known to occur
in the region include, but are not limited to, mule deer (Odocoileus
hemionus), gray fox (Urocyon cinereoargenteus), coyote (Canis latrans),
black-tailed jackrabbit (Lepus californicus bennettii), bobcat (Felis
rufus), striped skunk (Mephitis mephitis), opossum (Didelphis
virginiana), racoon (Procyon lotor), and various small land birds.
A seed bank (a reserve of dormant seeds, generally found in the
soil) is important for year-to-year and long-term survival (Given 1994,
Rice 1989). A seed bank includes all of the seeds in a population and
generally covers a larger area than the extent of observable plants
seen in a given year. The number and location of standing plants in a
population varies annually due to a number of factors, including the
amount and timing of rainfall, temperature, soil conditions, and the
extent and nature of the seed bank. Large annual fluctuations in the
number of standing plants in a given population have been documented.
Population size has ranged from 1 to over 5,400 standing plants at a
site on northwest Otay Mesa (CNDDB 2002; City of San Diego, in litt.
1999), from approximately 100 to 50,000 at a site in Rice Canyon (CNDDB
2002), and from approximately 280,000 to 1.9 million at San Miguel
Ranch South (CNDDB 2002; Merkel & Associates, in litt. 1999). In any
given year, the observable plants in a population are only the portion
of the individuals from the seed bank that germinated that year. These
annual fluctuations make it look as though a population of annual
plants ``moves'' from year to year, when in actuality, a different
portion of a population germinates and flowers each year. The spatial
distribution of a standing population of annual plants is generally the
result of the spatial distribution of the micro-environmental
conditions conducive to seed germination and growth of the plants.
Determining the size or magnitude of a given Deinandra conjugens
population is difficult due to the major fluctuations that have been
documented in known populations (CNDDB 2002; Merkel & Associates, in
litt. 1999). Conditions during some years are better for growth and
reproduction of Deinandra conjugens in some populations (and even some
portions of a population) than during other years. Because the number
of standing plants in a given population can vary by orders of
magnitude from one year to the next, the number of standing plants
observed in a population in any one year does not necessarily indicate
the potential magnitude of that population.
Deinandra conjugens has a limited distribution consisting of at
least 25 historical populations near Otay Mesa in southern San Diego
County and one population in Estado de Baja California, Mexico, near
the United States border (CDFG 1994; Roberts 1997; CNDDB 2002; Reiser
1996; herbarium records at the SDNHM; S. Morey, in litt. 1994). Three
of the 25 historic populations of Deinandra conjugens in the United
States are considered to be extirpated (CNDDB 2002; D. Hogan, in litt.
1990; S. Morey, in litt. 1994).
The largest number of Deinandra conjugens plants were recorded in
1998 when it was estimated that there were over 2 million individuals
for the species as a whole (CNDDB 2002; Merkel & Associates, in litt.
1999). However, the number of standing plants from year to year can be
highly variable. As testament to this variability, the species was
thought to be extinct within its range until its rediscovery in Estado
de Baja California, Mexico in 1977 (Tanowitz 1978). Conversely, the
largest population (Rancho San Miguel) supported about 1.9 million
plants during 1998 when southern California experienced El Nino weather
conditions, which resulted in a particularly wet and prolonged growing
season (Merkel & Associates, in litt. 1999).
By 1998, the five largest populations of Deinandra conjugens
(Rancho San Miguel, Rice Canyon, Dennery Canyon, Poggi Canyon, and
Proctor Valley) were known to support about 98 percent of all reported
standing plants (CNDDB 2002; San Diego Gas and Electric 1995; Roberts
1997; Merkel & Associates, in litt. 1999; Morey, in litt. 1994; City of
Chula Vista 1992; Brenda Stone, California Department of
Transportation, in litt. 1994) with each reportedly containing more
than 10,000 standing plants. In 2000, surveys for Deinandra conjugens
conducted in Johnson Canyon (Helix Environmental Planning, Inc. 2001b)
and Rolling Hills Ranch (Helix Environmental Planning, Inc. 2001a),
identified new populations estimated to include approximately 480,000
and 28,000 standing plants, respectively. Of the remaining populations,
8 are reported to support from 1,000 to 8,000 plants each; 9 are
reported to support fewer than 1,000 plants each; and 3 are considered
to be extirpated (CNDDB 2002). All of the above referenced populations
occur on Federal, local, and private lands (CNDDB 2002).
Some of the smaller populations of Deinandra conjugens are believed
to be essential to the survival and conservation of the species because
they are strategically located between larger populations and likely
facilitate gene flow among them. Gene flow among populations has been
demonstrated to reduce local and global extinctions in a number of
species (Hanski 1998; Baldwin, in litt. 2001). Processes such as
mutation, genetic migration, and random genetic drift are known to
adversely affect small populations (Barrett and Kohn 1991). Adverse
effects from these processes on Deinandra conjugens would likely be
magnified by its self-incompatibility (Keck 1959; Tanowitz 1982;
Baldwin, in litt. 2001). Maintaining gene flow among occurrences and
between populations is essential to counter the adverse effects from
the processes mentioned above,
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and to ensure the long-term survival and conservation of this species.
At the time the species was listed in 1998, we estimated that 70
percent of the suitable habitat for this species within its known range
had been lost to development or agriculture (63 FR 54938). Since the
listing, additional habitat has been lost to development (e.g., urban,
commercial, industrial, residential) and agriculture (e.g., grazing,
farming).
Deinandra conjugens appears to tolerate mild levels of disturbance
such as light grazing (Hogan, in litt. 1990; Tanowitz, in litt. 1977).
Such mild disturbances may result in habitat conducive to germination
(Tanowitz, in litt. 1977). However, the species is otherwise threatened
by urbanization and related activities, intensive agriculture, and the
invasion of non-native species, which may result in significant
disturbance to populations (63 FR 54938). Because of these threats, we
anticipate that intensive long-term monitoring and management may be
needed to protect and conserve this species.
At the time the species was listed in 1998, we estimated that about
11,930 ha (30,310 ac) of land with clay soils or clay subsoils were
within the general range of Deinandra conjugens in San Diego County,
California (63 FR 54938). Also at that time, about 4,200 ha (10,600 ac)
(about 37 percent) of this area had been urbanized and about 4,155 ha
(10,555 ac) (about 37 percent) had been heavily cultivated and grazed
(63 FR 54938). Additional areas have been lost to urbanization since
this time. New information from herbarium records at the SDNHM
indicates that the historical range of Deinandra conjugens extended
further to the north and northwest. Most of the habitat in this
additional area has already been lost to development. Much of the
cultivated and grazed lands in this range could be restored to support
Deinandra conjugens, which can grow in the margins of cultivated fields
(S. McMillan, pers. comm., 2001; M. Dodero, pers. comm., 2001).
However, most of these lands will likely be unavailable for the species
because of proposed urban and agricultural land use (Carlsbad Fish and
Wildlife Office GIS database 2002 which includes coverages from San
Diego Association of Governments).
Previous Federal Action
On December 15, 1980, we published a Notice of Review (NOR) of
plants which included Deinandra conjugens as a category 1 candidate
taxon (45 FR 82480). Category 1 taxa were those taxa for which
substantial information on biological vulnerability and threats are
available to support preparation of listing proposals. On November 28,
1983, we published a supplement to the 1980 NOR that treated Deinandra
conjugens as category 2 candidate taxa (48 FR 53640). Category 2
candidates were taxa for which data in our possession indicated listing
was ``possibly appropriate but for which substantial information on
biological vulnerability and threats were not known or on file to
support preparation of proposed rules'' (48 FR 53640).
On December 14, 1990, we received a petition dated December 5,
1990, from Mr. David Hogan of the San Diego Biodiversity Project, to
list Deinandra conjugens as endangered. The petition also requested
designation of critical habitat. Because Deinandra conjugens was
included in the Smithsonian Institution's Report of 1975, designated as
House Document No. 94-51, that had been accepted as a petition, we
regarded Mr. Hogan's petition to list this taxon as a second petition.
We responded to the petition by publishing a proposed rule to list
Deinandra conjugens as endangered on August 9, 1995 (60 FR 40549). On
October 13, 1998, we published a final rule listing Deinandra conjugens
as threatened (63 FR 54938). At that time, we indicated that
designation of critical habitat was not prudent.
On July 15, 1999, the California Native Plant Society (CNPS) and
Southwest Center for Biological Diversity (SWCBD) filed a lawsuit in
U.S. District Court for the Southern District of California, in part,
challenging our decision not to designate critical habitat for
Deinandra conjugens (California Native Plant Society; et al. v.
Babbitt, et al., 99CV1454 L (S.D.Cal.). On December 21, 2000, we
entered into a stipulated settlement agreement with the plaintiffs
under which we agreed to reevaluate the prudency determination for
Deinandra conjugens by May 30, 2001. If we determined that critical
habitat was prudent, we were to publish a proposed rule to designate
critical habitat by June 5, 2000, with a final determination to be
completed by May 30, 2002. On June 1, 2001, we determined that
designation of critical habitat was prudent, and on June 13, 2001, we
published in the Federal Register a proposed rule to designate
approximately 2,685 ha (6,630 ac) of land as critical habitat for
Deinandra conjugens (66 FR 32052). We requested a 6-month extension
(until November 30, 2002) to complete the final designation to allow us
adequate time to complete an economic analysis, obtain public comment
on the economic analysis, and complete the final designation. This
extension was agreed to by the plaintiffs and approved by the court on
June 2, 2002. On July 10, 2002, we published a notice reopening the
public comment period on the proposed rule for an additional 30 days
and announcing the availability of the draft economic analysis (67 FR
45696). This final critical habitat designation is consistent with the
settlement agreement.
Summary of Comments and Recommendations
In the June 13, 2001, proposed critical habitat designation (66 FR
32052), we requested all interested parties to submit comments on the
specifics of the proposal including information related to biological
justification, policy, economics, and proposed critical habitat
boundaries. The initial 60-day comment period closed on August 13,
2001. The comment period was reopened from July 10, 2002, to August 9,
2002 (67 FR 45969), to allow for additional comments on the proposed
designation, and comments on the draft economic analysis of the
proposed critical habitat.
We contacted all appropriate State and Federal agencies, county
governments, elected officials, and other interested parties and
invited them to comment. In addition, on June 13, 2001, we invited
public comment through the publication of a legal notice in the San
Diego Union-Tribune newspaper in southern California. We provided
notification of the draft economic analysis to all interested parties.
This was accomplished through telephone calls, letters, and news
releases faxed and/or mailed to affected elected officials, media
outlets, local jurisdictions, and interest groups. We also posted the
proposed rule and draft economic analysis and associated material on
our Carlsbad Fish and Wildlife Office internet site following their
release on June 13, 2001, and July 10, 2002, respectively.
We received a total of 11 comment letters, from 8 separate parties
during the two public comment periods. Comments were received from
Federal and local agencies, and private organizations and individuals.
No response was received from State agencies. Of these 11 comment
letters, 4 were in favor of the designation, and 7 against it. We
reviewed all comments received for substantive issues and comments, and
new information regarding Deinandra conjugens. Similar comments were
grouped into three general issues relating specifically to the proposed
critical habitat determination
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and draft economic analysis on the proposed determination.
Peer Review
We requested four biologists, who have knowledge of Deinandra
conjugens, to provide peer review of the proposed designation of
critical habitat for Deinandra conjugens. Two of the four peer
reviewers submitted comments on the proposed designation. Both
reviewers strongly endorsed the proposal, citing the importance of
genetic diversity to the survival of Deinandra conjugens. One reviewer
supported our inclusion of living seed banks, in areas where plants are
not evident every year, and concurred that we fully considered in the
proposal the importance of genetic diversity found in major and minor
populations.
Comments were either incorporated directly into the final rule or
final addendum to the economic analysis or addressed in the following
summary.
Issue 1: Biological Justification and Methodology
Comment 1: One commenter expressed concern over eliminating areas
with negative survey results from analysis where there may be primary
constituent elements and thereby eliminating them from potential
inclusion in critical habitat.
Our Response: The definition of critical habitat in section 3(5)(A)
of the Act includes ``(i) 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) which 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.'' The term ``conservation,'' as defined in
section 3(3) of the Act, means ``to use and the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary'' (i.e., the species is recovered
and removed from the List of Endangered and Threatened Species).
As we discussed in our proposed critical habitat for the Deinandra
conjugens, we identified those areas that currently contain populations
or provide habitat components essential to the conservation of
Deinandra conjugens. We excluded some areas where Deinandra conjugens
has not been observed historically or recently because we cannot
document that these areas are essential for the conservation of the
species. However, we proposed for designation those areas that we
believe to be essential, that possess core populations, and have unique
ecological characteristics.
Comment 2: One commenter expressed concern that the most current
and therefore, the best scientific data available for the Rolling Hills
Ranch project was not used. The commenter further suggests that the
proposed rule underestimates the number of Deinandra conjugens
individuals located on Rolling Hills Ranch, specifically, that 2000
survey data submitted to the Service in April and July of 2001 should
be used to redefine the critical habitat boundaries at Rolling Hills
Ranch.
Our Response: As discussed in the proposed rule, we did rely on the
most recent data from the 2000 survey season at Rolling Hills Ranch to
develop the Unit 1 boundaries of proposed critical habitat for
Deinandra conjugens. The subject 2000 survey data was provided to the
Service in April 2001, prior to the proposal. This data for the most
part, corroborated decisions made during the development of the
proposed critical habitat rule, and identified new areas of occupancy
at Rolling Hills Ranch. Some of these areas within the proposed
critical habitat, in which Deinandra conjugens was documented for the
first time in 2000, have not been included in the final designation for
reasons discussed in this rulemaking. The occurrence data and
supporting documentation used in the rulemaking are available for
inspection at the Carlsbad Fish and Wildlife Office by appointment
(please see ADDRESSES section of this rule).
Comment 3: One commenter questioned the biological justification
for proposing critical habitat for Deinandra conjugens using a
landscape-scale approach when they believed that more precise
information is available for use by the Service.
Our Response: We recognize that not every parcel of land within the
external boundaries of the critical habitat designation will contain
the habitat components essential to the conservation of Deinandra
conjugens. In the absence of more detailed map information during the
preparation of the proposed and final designations, we used a 100-m UTM
grid and hardline reserve boundaries to delineate critical habitat.
In developing the proposed rule and this final designation, we made
an effort to minimize the inclusion of areas that do not contain the
primary constituent elements for Deinandra conjugens. However, due to
our mapping scale, some areas not essential to the conservation of
Deinandra conjugens are included within the boundaries of proposed and
final critical habitat. These areas, such as existing housing
developments, roads, or other developed lands do not provide habitat
for Deinandra conjugens. Because they do not contain one or more of the
primary constituent elements for the species, Federal actions limited
to those areas will not trigger a section 7 consultation of the Act,
unless they affect the species or primary constituent elements in
adjacent critical habitat.
Comment 4: One commenter expressed concern that the proposed
critical habitat does not encompass all areas needed to provide for
genetic exchange between occurrences of Deinandra conjugens. For
instance, Map Units 2 and 3 result in genetically isolated areas of
critical habitat; pollinators and seed dispersers would not be capable
of maintaining genetic exchange among these and other critical habitat
areas. Also, Unit 2F, 2G, and 2H, and Unit 3A should be one
interconnected unit; there is no scientific justification for
segregating these areas into separate polygons.
Our Response: In developing the proposed critical habitat, we
evaluated those areas essential to the conservation of Deinandra
conjugens and that are covered by a legally operative Habitat
Conservation Plan (HCP). Those areas believed to be biologically
essential, but already covered by a legally operative HCP, were
excluded from this designation pursuant to section 4(b)(2) of the Act.
Consequently, those areas within the subject critical habitat units
containing essential Deinandra conjugens habitat within the San Diego
County Subarea Plan of the San Diego County Multiple Species
Conservation Plan (MSCP) are excluded. These exclusions create the
appearance of habitat gaps that could limit genetic exchange. Though
some of these gap areas do not contain primary constituent elements,
most gap areas include lands conserved under existing HCPs. After
evaluating the relative locations of populations, and evaluating their
genetic exchange potential, we only designated areas determined to be
essential that require special management. Because areas conserved in
reserves under existing HCPs receive special management pursuant to
those plans, they were not included in proposed or final critical
habitat.
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Issue 2: Policy and Regulations
Comment 5: One commenter suggested that designating critical
habitat for Deinandra conjugens on San Miguel Ranch project lands that
will become part of the San Diego National Wildlife Refuge (SDNWR) is
not adequate to provide the necessary and appropriate levels of
assurance to San Miguel Ranch. The commenter explained that San Miguel
Ranch, as a third party beneficiary to the MSCP Implementing Agreement,
is covered by an existing legally operative HCP that addresses
Deinandra conjugens. Finally, the commenter suggests that, due to the
conservation protections and management measures assured for Deinandra
conjugens through the SDNWR Annexation Agreement, the benefits of
excluding San Miguel Ranch outweigh the benefits of including of San
Miguel Ranch in the designation.
Our Response: Pursuant to section 4(b)(2) of the Act, we may
exclude any area from designated critical habitat if we believe that
the benefits of excluding such lands outweigh the benefits of including
those lands in critical habitat, providing that the exclusion would not
result in the extinction of the species. We have generally excluded
from critical habitat areas within legally operative HCPs that
``cover'' the subject species by protecting, and providing management
for, the essential habitat of the species within the plan area. We have
used the provisions of section 4(b)(2) of the Act for the exclusion of
lands covered by approved HCPs, because we believe that the benefits of
excluding them outweigh the benefits of including them.
Prior to annexation by the City of Chula Vista, the San Miguel
Ranch project was covered under the County of San Diego's approved and
legally operative Subarea HCP. In 2000, that portion of the County of
San Diego's incidental take permit that covers San Miguel Ranch was
transferred to the City of Chula Vista. Under the County of San Diego
Subarea Plan Implementing Agreement, the County and third party
beneficiaries, as that term is defined in the Implementing Agreement,
are assured that if the critical habitat is designated, they will not
be required to provide additional mitigation beyond that imposed on
their project in accordance with the Subarea Plan without their
consent. Those assurances continue to extend to San Miguel Ranch, to
the extent it maintains third party beneficiary status, with the
transfer of that portion of the County of San Diego's incidental take
permit that covers San Miguel Ranch to the City of Chula Vista in year
2000. The assurance is not affected or diminished by the designation.
Under the Annexation Agreement, Trimark (the project proponent) has
limited rights to encroach on certain SDNWR lands and the right to
request an encroachment easement on other SDNWR lands. If the Service
approves such encroachment, Trimark is required to provide mitigation
as described in the Annexation Agreement. The inclusion of SDNWR lands
in critical habitat does not conflict with the Annexation Agreement or
interfere with any assurances provided to the San Miguel Ranch project
under the transferred County permit. While San Miguel Ranch is covered
by a legally operative HCP, those lands identified for transfer to the
SDNWR under the Annexation Agreement will become federal lands
conserved and managed by the Service in accordance with Annexation
Agreement and the laws and regulations governing the National Wildlife
Refuge System. Therefore the considerations underlying out exclusion of
lands within approved HCPs under 4(b)(2) of the Act do not apply here.
The Service has not completed a Comprehensive Management Plan and Step-
down Refuge Management Plan that adequately addresses management and
monitoring of Deinandra conjugens. Thus the refuge lands, which we have
determined are essential for the conservation of Deinandra conjugens,
continue to require special management and thus meet the definition of
critical habitat under section 3(5)(A) of the Act. Finally, because the
SDNWR lands are federal lands, Section 7, which is the primary
regulatory benefit of designating lands as critical habitat, will apply
to activities carried out on the lands. We are not aware of any facts
that indicate that the benefits of excluding the SDNWR lands from
critical habitat under section 4(b)(2) of the Act would outweigh the
benefits of including them as critical habitat.
Comment 6: Several commenters suggested that the final critical
habitat boundary should be consistent with boundaries of the reserves
being established under the Chula Vista Subarea Plan of the San Diego
County MSCP (e.g., Rolling Hills Ranch and Bella Lago).
Our Response: As previously discussed in this rulemaking, we
proposed to designate as critical habitat for Deinandra conjugens those
lands believed to be essential to the conservation of the species.
During the development of the proposal, we took into consideration the
most current and best commercial and scientific data available. This
information included the conservation management and protections
afforded Deinandra conjugens under the San Diego County MSCP and the
Chula Vista Subarea Plan currently being developed. The boundaries of
our proposed critical habitat designation in some areas matched those
of the proposed reserve for the Chula Vista Subarea Plan, because in
our analysis of the subarea plan, we concluded that these boundaries
incorporated areas essential to the conservation of Deinandra
conjugens. For reasons discussed in the Critical Habitat section of
this rulemaking, we reevaluated and ultimately modified the critical
habitat boundaries at Rolling Hills Ranch and Bella Lago. The
modifications reflect the results of additional analysis of Deinandra
conjugens habitat within the projects' boundaries and discussions
regarding conservation of essential habitat with the project proponents
and the outcome of a Section 7 conference opinions on Bella Lago and
Rolling Hills Ranch. The reserve boundaries for the Chula Vista subarea
plan currently out for review, including Bella Lago and Rolling Hills
Ranch, are consistent with this final rule.
Comment 7: One commenter requested that we conduct the analysis
necessary to conclude that the City of Chula Vista's proposed MSCP
Subarea Plan should be excluded from the critical habitat designation
pursuant to section 4(b)(2) of the Act. The commenter asserts that we
should withdraw and revise the proposed critical habitat designation to
include an analysis and finding that the benefits of excluding the
City's plan outweigh the benefits of inclusion.
Our Response: Section 4(b)(2) of the Act allows us to exclude from
critical habitat designation areas where the benefits of exclusion
outweigh the benefits of designation, provided the exclusion will not
result in the extinction of the species. We believe that in most
instances the benefits of excluding legally operative HCPs from
critical habitat designations will outweigh the benefits of including
them. Deinandra conjugens is a covered species in the proposed Chula
Vista Subarea Plan; however, the Subarea Plan is not yet approved or
legally operative. The plan has been released to the public for review
and may be revised as a result of comments received by the public. The
Service has not conducted a review of the plan under section 7 or
section 10 of the Act to determine whether it meets the criteria for
issuance of an incidental take permit. Nor has the Service completed
[[Page 76035]]
its review of the plan under NEPA. Exclusion of the plan area under
section 4(b)(2) of the Act based on a proposed plan that may change and
that has not been approved by the Service would be inappropriate.
We anticipate that the Chula Vista Subarea Plan and other future
HCPs in the range of Deinandra conjugens will include it as a covered
species and provide for its long-term conservation. If the Chula Vista
Subarea Plan or other HC056that address Deinandra conjugens as a
covered species are ultimately approved and legally operative, we may
reassess the critical habitat boundaries in light of the approved HCP.
Comment 8: One commenter expressed concern that we did not
sufficiently support our decision to reverse our determination that
designation of critical habitat for Deinandra conjugens is not
``prudent.'' Finally, the commenter requests that we withdraw and
reconsider our determination that designation of critical habitat is
now prudent.
Our Response: In our final rule listing Deinandra (= Hemizonia)
conjugens as threatened under the Act (63 FR 549384), we found that
designation of critical habitat was not prudent because it occurs
primarily on private lands with little or no Federal involvement. As we
discuss in the Previous Federal Action section of this final rule, we
were challenged on our original ``not prudent'' finding. On December
21, 2000, we agreed to a stipulated settlement that required us to
publish a proposal to withdraw the existing ``not prudent'' critical
habitat determination and make a new prudency determination. In the
Prudency Determination section of the proposed rule, we detailed our
reasoning for determining that critical habitat is, in fact, prudent
for Deinandra conjugens. In general, we concluded that there may be
some additional benefits to designating critical habitat, including
instances where section 7 consultation would be triggered only if
critical habitat is designated, educational or informational benefits
to designating critical habitat, and significant occurrences of
Deinandra conjugens that have come under Federal lands jurisdiction
since the time of listing. The publication of our June 13, 2001,
proposal and this final rule are in compliance with that determination
and the stipulated settlement agreement and subsequent court orders.
Comment 9: One commenter suggested that lands covered by the MSCP
(or other HCPs) do not provide adequate protection for long-term
conservation of Deinandra conjugens; as such, the small disjunct
critical habitat areas as currently proposed are inadequate to support
the long-term survival of Deinandra conjugens.
Our Response: Deinaindra conjugens is a covered species under the
City and County of San Diego subarea plans of the MSCP. As discussed
later in this rule, Section 10(a)(1)(B) of the Act authorizes the
Service to issue to non-Federal entities a permit for the take of
endangered and threatened animal species incidental to otherwise lawful
activities. An incidental take permit must be supported by an HCP that
identifies conservation measures that minimize and mitigate the impacts
of take of covered animal species to the maximum extent practicable and
that we believe necessary to reduce project-related effects to the
extent that they do not appreciably reduce the likelihood of the
survival and recovery of the species in the wild. Where an HCP includes
sufficient conservation measures to preclude jeopardy for listed plant
species, we will also include such species on the incidental take
permit in recognition of those conservation benefits even though take
of listed plant species is not prohibited under Section 9 of the Act.
In the proposed rule we discussed at length the relative benefits
of including or excluding from critical habitat lands covered by a
legally operative HCP that includes Deinandra conjugens as a covered
species (see 66 FR 32060-61). In particular we noted that the benefits
of including HCP lands in critical habitat are normally small to non-
existent because approved HCPs are already designed to ensure the long-
term survival of covered species. HCPs typically protect essential
habitat in reserves that are managed to protect, restore, and enhance
their value as habitat for the species. Moreover, before approving an
HCP or issuing an incidental take permit, we complete a section 7 of
the Act consultation on the proposed permit and must conclude that the
permit will not result in jeopardy to any covered species in the plan
area.
The reserves established under the approved MSCP subarea plans
include essential populations of Deinandra. Those areas we are
designating as critical habitat include essential habitat for Deinandra
conjugens within HCPs that are currently under development, but have
not yet been approved, and other essential habitat outside of approved
HCPs. The critical habitat designation provides connectivity among
Deinandra conjugens populations protected within reserves established
under approved subarea plans.
Comment 10: One commenter concluded that all lands containing the
species' primary constituent elements are essential to the conservation
of the species.
Our Response: By definition (see sections 3(5)(A) and 3(5)(C) of
the Act), essential critical habitat generally describes a subset of
the area potentially containing primary constituent elements for a
species. As discussed in the methods section of the proposed and this
final rule, to determine areas essential for the conservation of
Deinandra conjugens, we used the best scientific and commercial data
available pertaining to known habitat requirements of the species.
Areas designated as critical habitat for Deinandra conjugens are within
the current known range of the species and contain one or more primary
constituent elements essential for the conservation of the species. In
our proposed and final designation of critical habitat, we selected
essential habitat areas based on occurrence data, soils, vegetation,
elevation, topography, and current land uses. During this analysis, it
was determined that some areas containing one or more primary
constituent elements did not represent suitable habitat or were
otherwise not essential for the conservation of the species.
Issue 3: Economic Issues
Comment 11: One commenter expressed concern that the deferral of
economic and other relevant impacts in preparing the proposed rule
violates the requirements of the Act. The commenter acknowledges our
position from previous critical habitat designations pursuant to the
specific implementing regulations (50 CFR 424.19) that it is not
required by law to conduct an economic analysis at the time critical
habitat is initially proposed. The commenter asserts, however, that the
implementing regulations contradict the Act (16 U.S.C. 1533(b)(2))
(i.e., section 4(b)(2) of the Act), whereas the statute calls for
designation of critical habitat after taking into consideration
economic impacts of specifying any particular area as critical habitat.
The commenter suggests that we ignored economic effects and other
related effects until after critical habitat boundaries are
established. Conversely, the commenter asks how the proposed rule text
can suggest that ``the designation of critical habitat is not likely to
result in a significant regulatory burden above that already in place
due to the presence of listed species,'' if an economic analysis has
not yet been conducted.
[[Page 76036]]
Our Response: Pursuant to section 4(b)(2) of the Act, we designate
critical habitat and make revisions thereto on the basis of the best
available scientific data and after taking into consideration economic
impacts and other relevant impacts associated with the designation. We
published our proposed designation in the Federal Register on June 13,
2001 (66 FR 32052). At that time, our Division of Economics and their
consultants, Industrial Economics, Inc., initiated the draft economic
analysis. The draft economic analysis was made available for public
comment and review beginning on July 10, 2002 (67 FR 45696). Following
a 30-day public comment period on the proposal and draft economic
analysis, a final addendum to the economic analysis was completed which
takes into consideration public comments. Both the draft economic
analysis and the addendum were used in the development of this final
designation of critical habitat for Deinandra conjugens. Please refer
to the Economic Analysis section of this final rule for a more detailed
discussion of these documents. Therefore, our designation of critical
habitat does take into consideration economic and other impacts
considered during the rulemaking process.
As stated earlier in this final rule, Federal agencies already
consult with us on activities in areas currently occupied by Deinandra
conjugens, or if the species may be affected by the action, to ensure
that their actions do not jeopardize the continued existence of the
species. Since Deinandra conjugens critical habitat is considered
occupied by either standing plants or seed bank, and we already consult
on other listed species, including the coastal California gnatcatcher
(Polioptila californica californica) and the Quino checkerspot
butterfly (Euphydryas editha quino), that have designated critical
habitats that overlap with Deinandra conjugens, we do not anticipate a
significant additional regulatory burden will result from the
designation of critical habitat for Deinandra conjugens. We made our
anticipatory statement that the designation of critical habitat was not
likely to result in a significantly higher regulatory burden based on
the information available at the time. The economic analysis has
demonstrated that our initial assumption was correct.
Comment 12: One commenter suggested that the Service failed to take
into account the cumulative economic impacts of all the existing and
proposed critical habitat designations. The commenter believes that the
Act and relevant Federal cases (New Mexico Cattle Growers v. U.S. Fish
and Wildlife Service, 248 F.3d 1277, 1281-1285) require this type of
analysis and requests that the Service explain the factual and legal
basis for its decision that other pending and final critical habitat
designations can be considered separately.
Our Response: The commenter appears to be using the term
``cumulative impacts'' in the context of the National Environmental
Policy Act (NEPA), which does not apply to this rulemaking. See the
National Environmental Policy Act section of this rule. We are required
to consider only the effect of the proposed government action, which in
this case is the designation of critical habitat for Deinandra
conjugens. The appropriate baseline for use in this analysis is the
regulatory environment without this regulation. While, consistent with
New Mexico Cattlegrowers v. U.S. Fish and Wildlife Service, we
considered the costs and benefits of both the listing of Deinandra
conjugens and the designation of critical habitat for this species in
establishing an upward estimate of economic effects, and then attempted
to identify and measure the additional costs and benefits associated
with this designation of critical habitat, when critical habitat for
other species has already been designated, it is properly considered
part of the baseline for this analysis. Proposed and future critical
habitat designations for other species in the area will be part of
separate rulemakings, and consequently, their economic effects will be
considered separately.
Comment 13: One commenter suggested that the critical habitat
designation triggers ``No Surprises'' regulations due to Deinandra
conjugens'' coverage in the MSCP, and that we should pay all the costs
associated with the designation.
Our Response: Permittees and third party beneficiaries, as the term
is defined under various MSCP Subarea Plan Implementing Agreements, are
assured that in the event critical habitat is designated for a covered
species, such as Deinandra conjugens, within the boundaries of approved
subarea plans, they will not be required to provide additional
mitigation consisting of money, land or restrictions on land, beyond
the level of mitigation imposed on their projects in accordance with
the subarea plans without their consent. The designation of critical
habitat for Deinandra conjugens does not undermine, compromise or
affect that assurance or trigger the No Surprises regulation.
Comment 14: One commenter expressed concern that the critical
habitat methodology fails to meet the standards of the Act as held by
the 10th Circuit Court [New Mexico Cattle Growers Ass'n v. U.S.F.W.S.,
248 F.3rd 1277 (10th Cir. 2001)] in that the economic analysis cannot
be separated from the action listing the species.
Our Response: In New Mexico Cattle Growers Ass'n v. U.S.F.W.S., 248
F.3d 1277 (10th Cir. 2001) the 10th Circuit recently held that the
baseline approach to economic analysis of critical habitat designations
that was used by the Service for the southwestern willow flycatcher
designation was ``not in accord with the language or intent of the
ESA.'' In particular, the court was concerned that the Service had
failed to analyze any economic impact that would result from the
designation, because it took the position in the economic analysis that
there was no economic impact from critical habitat that was incremental
to, rather than merely co-extensive with, the economic impact of
listing the species. The Service had therefore assigned all of the
possible impacts of designation to the listing of the species, without
acknowledging any uncertainty in this conclusion or considering such
potential impacts as transaction costs, reinitiations, or indirect
costs. The court rejected the baseline approach incorporated in that
designation, concluding that, by obviating the need to perform any
analysis of economic impacts, such an approach rendered the economic
analysis requirement meaningless.
In this analysis, the Service addresses the 10th Circuit's concern
that we give meaning to the ESA's requirement of considering the
economic impacts of designation by acknowledging the uncertainty of
assigning certain post-designation economic impacts (particularly
section 7 consultations) as having resulted from either the listing or
the designation. We also understand that the public wants to know more
about the kinds of costs consultations impose and frequently believe
that designation could require additional project modifications.
Therefore, this analysis incorporates two baselines. One addresses
the impacts of critical habitat designation that may be attributable
co-extensively to the listing of the species. Because of the potential
uncertainty about the benefits and economic costs resulting from
critical habitat designations, we believe it is reasonable to estimate
the upper bounds of the cost of project modifications based on the
benefits and economic costs of project modifications that would be
required due to consultation under the jeopardy
[[Page 76037]]
standard. It is important to note that the inclusion of impacts
attributable co-extensively to the listing does not convert the
economic analysis into a tool to be considered in the context of a
listing decision. As the court reaffirmed in the southwestern willow
flycatcher decision, ``the ESA clearly bars economic considerations
from having a seat at the table when the listing determination is being
made.''
The other baseline, the lower boundary baseline, will be a more
traditional rulemaking baseline. It will attempt to provide the
Service's best analysis of which of the effects of future consultations
actually result from the regulatory action under review--i.e., the
critical habitat designation. These costs will in most cases be the
costs of additional consultations, reinitiated consultations, and
additional project modifications that would not have been required
under the jeopardy standard alone as well as costs resulting from
uncertainty and perception impacts on markets. The final addendum to
this analysis provides further information concerning the baseline and
potential incremental effects of the designation of critical habitat
for Deinandra conjugens.
Comment 15: One commenter suggested that the economic analysis
cannot rely on overlap between Federal laws and State and local
regulations. The analysis of State-induced impacts is inappropriate
since they are independent of Federal action, and could be nullified by
actions of the State legislature or voters.
Our Response: In the case of the MSCP, an analysis of State-induced
impacts is appropriate since the NCCP program is directly tied to the
HCP through the terms of the MSCP Implementing Agreement. Though
economic impacts associated with State and local actions were addressed
in the draft economic analysis, the document clearly states that all
impacts are assumed to be solely attributable to the Federal listing.
Please refer to the draft economic analysis for further discussion of
this issue.
Comment 16: One commenter expressed concern that the preface of the
economic analysis acknowledges that the public believes that critical
habitat designation could require additional project modifications,
while the document later suggests in several instances that further
modifications are not expected. The commenter suggests that the
economic analysis provide further defense of this position and discuss
specific regulation and policy in making the case.
Our Response: The statement in the preface of the economic analysis
addresses public perception (also see the Stigma Effects section of the
economic analysis) that critical habitat designation will present
additional regulatory burden. The economic analysis effectively
addresses these concerns by addressing the likelihood of an economic
effect from the designation above and beyond the listing. The analysis
correctly asserts that Deinandra conjugens critical habitat is occupied
by either standing plants or seed bank, and correctly concludes that no
additional project modifications are likely from the designation that
would not have already been recommended to address the listed species
and its habitat.
Comment 17: One commenter indicated that Dudleya variegata
(variegated Dudleya) is not a State-listed species, as stated in the
draft economic analysis. The commenter suggested that this statement
leads to significant adjustments in the cost impacts within the
economic analysis that should be corrected.
Our Response: Dudleya variegata is not a State-listed species. The
species status has been addressed in the final addendum of the economic
analysis. However, in this case, Dudleya variegata is a covered species
under the MSCP Plan, and as such is treated similarly to both federally
and State-listed species under the MSCP Plan. Therefore, adjustments in
costs were correctly made to recognize the cost of measures intended to
mitigate the effects of covered activities on Dudleya variegata under
the MSCP Plan.
Comment 18: One commenter suggests that our ``additional benefits''
and ``education/informational benefits'' determinations were not
substantiated, are arbitrary and capricious, and are based on
litigation.
Our Response: In the Prudency Determination section of the proposed
rule, we detailed our reasoning for determining that critical habitat
is, in fact, prudent for Deinandra conjugens. In general, we concluded
that there may be some additional benefits to designating critical
habitat, including instances where section 7 consultation would be
triggered only if critical habitat is designated, educational or
informational benefits to designating critical habitat, and significant
occurrences of Deinandra conjugens on Federal lands recorded since the
time of listing.
Although we cannot substantiate in the present something that may
occur in the future, critical habitat may provide some educational
benefit by formally identifying areas within the range of Deinandra
conjugens essential for the conservation of the species. The public and
the Service would, therefore, benefit from the designation while
planning any future recovery efforts for the species. Furthermore,
three significant occurrences of Deinandra conjugens now occur on
Federal lands, which were not known at the time of listing,
substantiating the need to designate critical habitat on those lands.
The benefit of the designation, in this case, is the added protections
afforded by the relatively higher threshold of responsibility required
of Federal agencies under section 7 the Act.
While we have acknowledged the potential for society to experience
such benefits in our economic analyses for critical habitat
rulemakings, our ability to actually measure these benefits in any
meaningful way is difficult and imprecise at best. However, we will
continue to explore ways that will allow us to provide more
quantitative descriptions of the potential benefits associated with a
critical habitat designation.
Summary of Changes From the Proposed Rule
In the development of our final designation of critical habitat for
Deinandra conjugens, we considered new information provided to our
office after the proposed designation was published. We made changes
from our proposal based on a review of public comments received on the
proposed designation and the draft economic analysis on the proposed
designation and a re-evaluation of lands proposed as critical habitat.
The refinements to the amount of land determined to be essential for
Deinandra conjugens and incorporated into this final designation
resulted in a net reduction of approximately 120 ha (300 ac) of lands.
The primary changes for this final designation include the removal of
120 ha (300 ac) of lands from the development areas of the Eastlake
Woods, Bella Lago and Rolling Hills Ranch residential developments,
Sweetwater County Park Summit Site, and Sweetwater Authority lands,
because these lands were determined not to be essential for the
conservation of Deinandra conjugens.
In our proposed rule we identified certain lands within the
proposed development projects of Bella Lago, Eastlake Woods, and
Rolling Hills Ranch (all in the City of Chula Vista) that we believed
contained primary constituent elements and standing plants or seed bank
for Deinandra conjugens and included these as proposed critical
habitat. Since the time of our proposal, we have reevaluated these
areas and conclude that some of
[[Page 76038]]
these lands do not contain the primary constituent elements for
Deinandra conjugens and standing plants or seed bank, and are not
essential for the long-term conservation of this species.
At the time of our proposed rule, rare plant surveys had not yet
been completed on portions of the Bella Lago project site.
Consequently, our boundaries for proposed critical habitat were based
on general information concerning soils and vegetation. Surveys have
since been completed and we have more current and definitive
information relating to the location of Deinandra conjugens and the
primary constituent elements essential to its conservation on the
proposed project site. We have refined the boundaries of critical
habitat in the southern portion of the project site to exclude
approximately 5 ha (10 ac) that we now know do not contain the plant or
its primary constituent elements. The remaining patches of land within
the southern portion of the project site that contain occupied habitat
and primary constituent elements are considered to be essential to the
conservation of the species and are being designated as critical
habitat.
Approximately 20 ha (55 ac) of the Eastlake Woods project site have
also been deleted from the final critical habitat rule. Following the
publication of the proposed rule, we completed a consultation with
regard to Dienandra conjugens (and a conference with respect its
proposed critical habitat) pursuant to section 7 of the Act with the
U.S. Army Corps of Engineers (Corps) for the Eastlake Woods project, a
residential development (1-6-02-FW-1989.2) in which we closely examined
and evaluated the tarplant and its habitat on the project site. Based
on the more thorough review of proposed critical habitat under the
section 7 consultation for the Eastlake Woods neighborhood project,
most of the areas being excluded as critical habitat for Deinandra
conjugens are not habitat for this species, do not contain any known
occurrences for this plant based on two years of surveys during the
flowering season, and do not contain the primary constituent elements
for this plant because of the extensive history of agricultural use. As
a result of the consultation and conference opinion, an area of
approximately 5 ha (10 ac) that had been proposed as critical habitat
has been preserved, is being restored, and will receive long-term
monitoring and management. This area is being retained as critical
habitat. As a result of the consultation, 5 ha (10 ac) (an area that
contained approximately 2,160 individual Deinandra conjugens in 2001)
will be preserved onsite. The preserved area has broader conservation
value because it adjoins areas conserved under the San Diego MSCP and
the proposed Chula Vista Subarea Plan. Within the preservation area,
approximately 2 ha (5 ac) will be restored to support approximately 870
plants. The entire area will be preserved and managed in perpetuity.
These lands contain the plant and its primary constituent elements, are
contiguous with critical habitat designated for the species on adjacent
lands, and are considered to be essential to the conservation of the
species. In our conference opinion we determined that development of
the remaining 20 ha (55 acres) proposed as critical habitat for
Dienandra conjugens would not result in adverse modification of this
critical habitat unit. Approximately 20 ha (55 acres) were determined
upon closer analysis not to be occupied by Dienandra conjugens nor
contain primary constituent elements of its habitat. The inclusion of
such areas in the proposed rule resulted from use of the 100-m UTM grid
system which, as explained later in the rule, is not a fine enough
scale to eliminate all areas that are not occupied or that do not
contain primary constituent elements, and therefore do not meet the
definition of critical habitat under 3(5)(A). Use of the 100-m grid
resulted in the inclusion of lands under agricultural use for many
years that were not known to be occupied by this species and that do
not contain the primary constituent elements. Through the consultation
and conference opinion we were able to identify these lands, and we
concluded that development of the lands would not result in the adverse
modification of proposed critical habitat. Thus, the areas excluded
from critical habitat were not essential for the conservation for the
species because the majority of these lands were not habitat for
Deinandra conjugens, do not contain long-term conservation value, and/
or do not contain primary constituent elements. The approximately 1 ha
(2 ac) of remaining lands within the Eastlake Woods project did contain
Dienandra conjugens and primary constituent elements. However, because
the distribution of Dienandra conjugens in those areas was limited and
restricted by active agricultural activity, we concluded they were not
necessary for the conservation of this species and development of the
lands would not result in adverse modification of proposed critical
habitat. Upon the completion of the Section 7 consultation and
conference opinions, the project proponent graded the 20 ha (55 acres)
described above in preparation for development.
Portions of the Rolling Hills Ranch project site also have been
excluded from final critical habitat. In April of 2001, prior to the
publication of the proposed critical habitat rule, we were provided
with current survey information for the Rolling Hills Ranch development
project that indicated the presence of approximately 28,000 standing
Deinandra conjugens plants scattered throughout the site. Following the
publication of the proposed rule, we further evaluated this new
occurrence information in the context of: (1) Other known occurrences
throughout the range of the species; (2) the consultation on the
Rolling Hills Ranch development project; and (3) the protections and
conservation measures currently established in the approved San Diego
MSCP and those measures proposed in the draft Chula Vista Subarea Plan
for Deinandra conjugens.
Following this evaluation, we concluded that approximately 85 ha
(215 ac) within the Rolling Hills project site are not essential to the
conservation of Deinandra conjugens. At the time of the proposed rule,
we used the 100-m UTM grid to identify critical habitat on portions of
Rolling Hills Ranch, which resulted in designation of some areas that
are not occupied by the species or that do not contain primary
constituent. For the final rule, we have used the approved boundaries
specific to the Rolling Hills Ranch project, thereby eliminating some
areas that do not contain the plants or primary constituent elements
for the species.
Furthermore, approximately 70 percent of the lands on Rolling Hills
Ranch that have been deleted from the final rule on Rolling Hills Ranch
are not known to contain standing occurrences of Deinandra conjugens.
These lands may contain primary constituent elements and it is possible
that they contain seed bank; however, the excluded areas are not known
to support standing occurences of the species. Without better
information that would substantiate the importance of these lands to
the species, their conservation value cannot be determined. These lands
are, therefore, not considered essential for the conservation of the
species, and have been deleted from the final critical habitat rule.
Approximately 30 percent of the lands deleted from the final rule
are considered to be occupied. We recently completed a consultation
pursuant to section 7 of the Act with the Corps (1-6-01-F-1071.4),
following an agreement
[[Page 76039]]
reached among the Service, the California Department of Fish and Game,
and the project proponent to modify the boundaries of proposed
development, MSCP reserve, and MSCP Neutral areas on the project site.
MSCP Neutral areas are those lands being conserved within the MSCP
planning area, in this case by Rolling Hills Ranch, that are not
covered lands under the MSCP. Pursuant to that agreement, project lands
containing the most important occurrences of Deinandra conjugens and
its primary constituent elements are designated as MSCP reserve and
MSCP Neutral areas and will be protected, monitored, and managed for
Deinandra conjugens. When identifying the areas set aside for
conservation, we focused on conserving those occurrences that we
believed to have the greatest chance of persistence within the project
area. We concluded in our biological opinion that the loss of
approximately 5 ha (10 ac) of occupied habitat would not result in the
destruction or adverse modification of proposed critical habitat for
the following reasons. First, the areas conserved would receive a
higher level of management (e.g., invasive species control, monitoring
and adaptive management of populations, etc.) compared to the no-
project scenario. Without the project, the site was being used for
agriculture and grazing, activities that would not be subject to
regulations under the Act because of the absence of a federal nexus. As
a result, there was a higher chance that the plant occurrences onsite
would be degraded. The higher level of management within the conserved
lands would ensure the long-term viability of the population in the
area, thereby reducing the extent of land necessary to provide for the
conservation of the species onsite. Second, the preserve design for
Rolling Hills Ranch compliments regional conservation for Deinandra
conjugens under the MSCP. As a result of this regional conservation
planning, lands essential to the conservation of this species are being
conserved and managed or are targeted for conservation and management.
Finally, from a regional perspective, protection of all occupied
habitat on the Rolling Hills Ranch project is not essential for the
conservation of Deinandra conjugens; the limited loss of occupied
habitat for this species at Rolling Hills Ranch will not preclude the
recovery of this plant. We were able to utilize digital map data
provided by Rolling Hills Ranch to refine critical habitat on the
project site based on the modified boundary agreement. These lands to
be protected on site contain the plant and its primary constituent
elements, are contiguous with critical habitat designated for the
species on adjacent lands, and are essential to the conservation of the
species.
In addition, we refined the critical habitat boundaries for the
final rule to exclude 5 ha (10 ac) of developed areas within the
Sweetwater County Park Summit Site, and 5 ha (10 ac) of developed areas
within Sweetwater Authority lands. These lands do not contain primary
constituent elements for Deinandra conjugens, and are, therefore, not
considered essential to the conservation of the species.
Also, the proposed rule indicated that 27,000 standing plants were
located on Rolling Hills Ranch in year 2000. This number has been
changed to 28,000 to correct a rounding error. Finally, the proposed
rule indicated that critical habitat unit 2 encompasses approximately
521 acres, which we rounded to 520 acres for the final rule. No change
in actual acreage for unit 2 was made in the final rule.
Finally, minor changes to the definition of primary constituent
elements for Deinandra conjugens were also made to eliminate
redundancy.
Critical Habitat
Critical habitat is defined in section 3 of the Endangered Species
Act (Act), as amended, 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) which 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
species 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
habitat with regard to actions carried out, funded, permitted, or
authorized by a Federal agency. Section 7 of the Act also requires
conference opinions on Federal actions that are likely to result in the
destruction or adverse modification of proposed critical habitat. Aside
from the added protection that may be provided under section 7,
including adverse modification of habitat, the Act does not provide
other forms of regulatory protection to lands designated as critical
habitat. Further, consultation under section 7 of the Act does apply to
activities on private or other non-Federal lands whenever a Federal
nexus occurs.
In order to be included in a critical habitat designation, the
habitat must be ``essential to the conservation of the species.''
Critical habitat designations identify, to the extent known and using
the best scientific and commercial data available, habitat areas that
are essential to the conservation of the species. Our regulations (50
CFR 424.12(e)) also state that, ``The Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by a species only when a designation limited to its present range would
be inadequate to ensure the conservation of the species.''
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, and any other relevant impact, of specifying any
particular area as critical habitat. We may exclude areas from critical
habitat designation when the benefits of exclusion outweigh the
benefits of including the areas within critical habitat, provided the
exclusion will not result in extinction of the species.
Within the geographic area occupied by the species, we will
designate only areas currently known to be essential. Essential areas
should already have the features and habitat characteristics that are
necessary to sustain the species. We will not speculate about what
areas might be found to be essential if better information became
available, or what areas may become essential over time. Within the
geographic area occupied by the species, we will not designate areas
that do not now have the primary constituent elements, as defined at 50
CFR 424.12(b), that provide essential life-cycle needs of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that our decisions represent the best scientific and commercial
data available. It requires us, to the extent consistent with the Act,
and with the use of the best scientific and commercial data available,
to use primary and original sources of information as the basis for
recommendations to designate critical habitat. When determining which
areas are critical habitat, a primary source of information should, at
a minimum, be the listing package for the species.
[[Page 76040]]
Additional information may be obtained from a recovery plan, articles
in peer-reviewed journals, conservation plans developed by States and
counties, scientific status surveys and studies, biological
assessments, unpublished materials, and expert opinion.
Section 4 of the Act requires that we designate critical habitat
based on what we know at the time of the 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, all
should understand that critical habitat designations do not signal that
habitat outside the designation is unimportant or may not be required
for recovery. Areas outside the critical habitat designation will
continue to be subject to conservation actions that may be implemented
under section 7(a)(1) and to the regulatory protections afforded by the
section 7(a)(2) jeopardy standard and the applicable prohibitions of
section 9 of the Act, as determined on the basis of the best available
information at the time of the action. Federally funded or assisted
projects affecting listed species outside their designated critical
habitat areas may still result in jeopardy findings in some cases.
Similarly, critical habitat designations made on the basis of the best
available information at the time of designation should 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
In determining areas that are essential to conserve Deinandra
conjugens, we used the best scientific and commercial data available.
We reviewed available information that pertains to the habitat
requirements of this species, including data from research and survey
observations published in peer-reviewed articles; regional GIS
coverages (e.g., soils, known locations, vegetation, land ownership,
and HCP boundaries); information from herbarium collections such as
those from SDNHM; data from the CNDDB (2002); data collected from
project-specific and other miscellaneous reports submitted to us;
additional data from the San Diego County Multiple Species Conservation
Program (MSCP), such as information from Subarea or draft Subarea HCPs
(Subarea Plans) (e.g., City of San Diego, County of San Diego, City of
La Mesa, and City of Chula Vista); information in the San Diego Gas and
Electric HCP (1995); and a habitat evaluation model for the Otay Mesa
Generating Project.
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 designate as critical
habitat, we must consider those physical and biological features
(primary constituent elements) that are essential to the conservation
of the species, and that may require special management considerations
or protection. These include, but are not limited to: space for
individual and population growth, and for normal behavior; food, water,
air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for pollination and germination
or seed dispersal; and habitats that are protected from disturbance or
are representative of the historical geographical and ecological
distributions of a species. All areas designated as critical habitat
for Deinandra conjugens are within the currently known range and
contain one or more of these physical or biological features (primary
constituent elements) essential for the conservation of the species.
The designated critical habitat is designed to provide sufficient
habitat to maintain self-sustaining populations of Deinandra conjugens
throughout its range, and provide those habitat components essential
for the conservation of the species. Habitat components that are
essential for Deinandra conjugens are found in vegetation communities
classified as, but not limited to, grasslands, coastal sage scrub, or
maritime succulent scrub in southwestern San Diego County, California.
These habitat components provide for: (1) Individual and population
growth, including habitat for germination, pollination, reproduction,
pollen and seed dispersal, and seed dormancy; (2) areas that allow gene
flow and provide connectivity or linkage between or within larger
populations, including open spaces and disturbed areas that in some
instances may also contain introduced plant species; (3) areas that
provide basic requirements for growth such as water, light, and
minerals; and (4) areas that support pollinators and seed dispersal
organisms.
The long-term survival and conservation of Deinandra conjugens is
dependent upon a number of factors, including the protection and
management of existing populations, the protection of inter-population
occurrences, the maintenance of normal ecological functions within
populations, the preservation of the connectivity between populations
to allow natural gene flow through pollinator activity and seed
dispersal mechanisms, the protection and maintenance of habitat for the
survival of pollinators and seed dispersal agents, and the preservation
of suitable micro-habitat that could be recolonized and allow a
population to survive a catastrophic event. The small, fragmented range
of this species, coupled with its breeding system (i.e., its self-
incompatibility and annual habit), makes it especially vulnerable to
natural and anthropogenic effects including disturbance from human and
agricultural activities; spread of non-native species; and nearby use
of herbicides, pesticides, and other contaminants (63 FR 54938; B.
Baldwin, pers. comm., 2001; S. McMillan, pers. comm., 2001).
Based on our current knowledge of this species, the primary
constituent elements of Deinandra conjugens critical habitat consist
of, but are not limited to, soils with a high clay content (generally
greater than 25 percent) (or clay intrusions or lenses) that are
associated with grasslands, open coastal sage scrub, or maritime
succulent scrub communities between 25 m (80 ft) and 300 m (1000 ft)
elevation (Bauder et al. 2002, CNDDB 2002). These plant communities
contain natural openings that provide habitat for the Deinandra
conjugens life-cycle, and pollen and seed dispersal agents (M. Elvin,
pers. obs., 2001).
Criteria Used To Identify Critical Habitat
In our final delineation of critical habitat for Deinandra
conjugens, we selected areas essential to the conservation of the
species from within its known historical range. We used data from
documented occurrences, various GIS layers, and recent aerial
photography. These data include Deinandra conjugens locations, soils,
vegetation, elevation, topography, and current land uses.
We began by using the GIS layers to identify areas of suitable
habitat within the geographic distribution of this species. We selected
areas with appropriate soils and vegetation that are limited to the
elevational range of the species within its known distribution. We then
selected soils and plant communities that overlapped known Deinandra
conjugens occurrences. Areas occupied by Deinandra conjugens cannot be
determined accurately either
[[Page 76041]]
by cursory field examination or by the limited data from historical
observations. The entire population of an annual plant (which includes
all of the seeds in the subterranean seed bank and the observable
plants above ground) is not visible at any one time. The entire seed
bank does not germinate at once, and the visible population of plants
rarely reflects the size or distribution of the seed bank. There may be
no standing plants in an area occupied by the species for a year or
even a span of several years, until local climatic and other conditions
are suitable for seed germination. The size and distribution of the
standing plant population may move, shrink, or grow as conditions
change, without a similar change in the distribution of the seed bank.
Consequently, the results of Deinandra conjugens population mapping
efforts have been variable, depending both on the scale of the mapping
and the year in which the surveys were conducted (documented examples
include estimated records of standing plants ranging from one to more
than 5,400 plants for one population (CNDDB 2002; City of San Diego, in
litt. 1999), from about 100 to 50,000 in another (CNDDB 2002), and from
280,000 to 1.9 million plants in another population (CNDDB 2002)). In
the case of the related Holocarpha macradenia (Santa Cruz tarplant),
seemingly unoccupied habitat has been determined to contain a viable
seed bank where standing plants have not been seen in over 7 years
(Bainbridge, in litt. 1999). By overlapping known occurences of
Deinandra conjugens with appropriate soil types, elevations, and other
habitat characteristics, we have included what we believe is the likely
distribution of the seed bank around these occurences of Deinandra
conjugens.
We then eliminated areas that did not contain both appropriate
soils and appropriate vegetation such as, but not limited to, currently
used agriculture fields, housing developments, and open water. Next, we
eliminated all areas above 300 m (1,000 ft) elevation, the upper limit
of the known distribution of Deinandra conjugens, based on herbarium
records. We also compared the remaining areas of suitable Deinandra
conjugens habitat with recent project information and aerial
photography so as not to include areas that have recently been
developed.
We conducted this analysis to facilitate delineation of suitable
habitat containing the primary constituent elements. The long-term
survival and conservation of Deinandra conjugens is dependent upon the
protection and management of existing essential populations, and the
associated seed bank, and the maintenance of ecological functions
within and between these populations, including connectivity within and
among populations to allow effective pollinator activity and seed
dispersal.
The boundaries of designated critical habitat for Deinandra
conjugens, shown on the attached maps and defined in the legal
description, are based on a 100-meter Universal Transverse Mercator
(UTM) grid, boundaries that have been legally described for the City of
Chula Vista's draft preserve design for their draft MSCP Subarea Plan
and the County of San Diego's major and minor amendment areas for their
MSCP Subarea Plan, Sweetwater Authority lands (a water district in San
Diego County), Otay Water District lands, Federal lands (e.g.,
Immigration and Naturalization Service (INS), San Diego National
Wildlife Refuge lands (SDNWR)), and Trust for Public Lands property.
This grid was overlaid on those areas determined to be essential and
indicated by the Deinandra conjugens habitat analysis where we did not
have legal descriptions for boundaries.
As we discuss in detail below (see ``Relationship To Habitat
Conservation Plans and Other Planning Efforts''), lands that are
covered by an existing, legally operative, HCP with an operative
implementing agreement (IA) in which Deinandra conjugens is a covered
species were not included in the proposed critical habitat rule because
we determined that the benefits of exclusion outweigh the benefits of
inclusion pursuant to section 4(b)(2) of the Act. Areas excluded based
on this criterion consist of lands within the County of San Diego and
City of San Diego subarea plans, with the exception of those lands
within the major and minor amendment areas addressed within the subarea
plans, where the impacts to and conservation of Deinandra conjugens
have not been addressed. Apart from the lands with operative HCPs, the
majority of the remaining occupied habitat for Deinandra conjugens
falls within designated or draft preserve areas within the MSCP.
In defining critical habitat boundaries, we made an effort to
exclude all developed areas, such as towns or housing developments, and
lands unlikely to contain the primary constituent elements essential
for conservation of Deinandra conjugens. Our 100-m UTM grid minimum
mapping unit was designed to minimize the amount of development along
the urban edge included in our designation. Lands containing existing
features and structures, such as buildings, roads, railroads, urban
development, and other similar developed features are not likely to
contain primary constituent elements. Federal actions limited to those
areas would not trigger a section 7 consultation, unless they affect
the species or the primary constituent elements in adjacent critical
habitat.
The designated critical habitat units described below constitute
our best assessment of areas that are essential for the species'
conservation. As anticipated in the proposed rule, based upon the
additional information received during the public comment period and
field surveys after the proposed rule was published, the boundaries of
the mapping units have been refined.
Critical Habitat Designation
The approximate area encompassing the designated critical habitat
broken down by land ownership is shown in Table 1. All of the
designated critical habitat is in San Diego County, CA.
Table 1.--Approximate Designated Critical Habitat in Hectares (ha)
(Acres (ac)) Land Ownership \1\
------------------------------------------------------------------------
Federal \2\ State/local Private Total
------------------------------------------------------------------------
715 ha 580 ha 1,265 ha 2,560 ha
(1,765 ac) (1,440 ac) (3,125 ac) (6,330 ac)
------------------------------------------------------------------------
\1\ Hectares have been converted to acres (1 ha = 2.47 ac). Based on the
level of imprecision of mapping at this scale, hectares and acres have
been rounded to the nearest 5.
\2\ Federal lands include the Service and INS lands.
[[Page 76042]]
Critical habitat includes habitat throughout the species' current
range in the United States (San Diego County, California). Lands
designated are under Federal, State, local, and private ownership.
Federal lands include areas owned or managed by the Service and INS.
Lands designated as critical habitat have been divided into three
critical habitat units. We have designated critical habitat on lands
that are considered essential to the conservation of Deinandra
conjugens. Each of these critical habitat units is considered to be
occupied by either the seed bank or standing plants of Deinandra
conjugens. A brief description of each unit, and reasons for
designating it as critical habitat, are presented below.
Unit 1: Sweetwater/Proctor Valley Unit
The Sweetwater/Proctor Valley Unit encompasses approximately 1,440
ha (3,560 ac) at the northeastern limit of this species' distribution.
This unit is south and east of State Route 54, south and west of State
Route 94, and north of Upper Otay Reservoir. It includes portions of
the Otay/Sweetwater Unit of SDNWR; lands belonging to the Sweetwater
Authority around the Sweetwater Reservoir; lands belonging to the Otay
Water District; lands that are proposed as preserve under the draft
City of Chula Vista Subarea Plan; portions of two project areas within
the draft City of Chula Vista Subarea Plan, but outside of the proposed
preserve lands; and lands that are within major and minor amendment
areas within the County of San Diego Subarea Plan. Two areas in this
unit have not been designated as critical habitat, including the
alignment for State Route 125 South and the San Diego County Park
campground realignment and expansion, because these areas have been
analyzed and determined not to be essential to the conservation of
Deinandra conjugens.
This unit contains several large populations of Deinandra
conjugens, including a portion of the Rancho San Miguel population
estimated to contain approximately 855,000 standing Deinandra conjugens
plants during the 1995 and 1998 growing seasons (CNDDB 2002; Merkel &
Associates, in litt. 1999). A portion of the Proctor Valley population
not covered under the approved San Diego County MSCP, which had
approximately 10,000 standing plants in the 1990 growing season (CNDDB
2002), is also included. This unit also contains an area on the north
side of the Sweetwater Reservoir where reports indicate there are
approximately 2,000 standing plants (Roberts 1997), and an area on the
north portion of the SDNWR that had approximately 2,000 standing plants
in 1993 (CNDDB 2002).
As discussed in the Changes From the Proposed Rule section of this
final rule, portions of lands containing the approximately 28,000
plants in the Rolling Hills Ranch population (i.e., the MSCP Neutral
areas and proposed Chula Vista Subarea Plan reserve within the Rolling
Hills Ranch project), and portions of other project lands (e.g., Bella
Lago, Eastlake Woods) have been retained in the final rule while other
areas were excluded.
This unit contains multiple large Deinandra conjugens populations
that are capable of producing large numbers of individuals in good
years, which is important for this species to survive through a variety
of natural and environmental changes, as well as stochastic (random)
events. This unit contains populations in the northern and eastern
extent of this species' historicaldistribution, which is essential for
its conservation. Peripheral populations may have genetic
characteristics essential to overall long-term conservation of the
species (i.e., they may be genetically different than more central
populations) (Lesica and Allendorf 1995). The populations in this unit
can likely maintain genetic connectivity within and among themselves,
and they may maintain genetic connectivity with the Otay Valley/Big
Murphy's Unit. Therefore, the populations in this unit are essential to
the conservation of the species.
Unit 2: Chula Vista Unit
The Chula Vista Unit encompasses approximately 210 ha (520 ac) at
the western portion of this plant's range. Most of the populations in
this unit are found in the remaining habitat patches along canyon edges
that were not developed. This unit contains lands that are proposed as
preserve under the draft City of Chula Vista Subarea Plan, lands that
are in a minor amendment area under the County of San Diego's Subarea
Plan, and lands that are in a minor amendment area under the draft City
of Chula Vista Subarea Plan.
This unit contains the Rice Canyon population, which had more than
50,000 standing plants in 1994 (CNDDB 2002), and the Poggi Canyon
population that had a reported 10,000 standing plants in 1990 (CNDDB
2002). This unit contains populations in the western extent of this
species' distribution, which although currently isolated from each
other, may contain significant amounts of genetic diversity and are,
therefore, essential to the conservation of the species.
Unit 3: Otay Valley/Big Murphy's Unit
The Otay Valley/Big Murphy's Unit encompasses approximately 910 ha
(2,250 ac). It is east of Interstate 805, north of the International
Boundary between the United States and Mexico on the east side, north
of State Route 905 on the west side, west of Otay Mountain, and along
the north rim of Otay Valley including Salt Creek and Wolf Canyon. This
unit includes lands owned by INS, lands that are proposed as preserve
under the draft City of Chula Vista Subarea Plan, and lands that are in
major and minor amendment areas in the County of San Diego Subarea
Plan. Areas in this unit that are within the alignment for State Route
125 South have not been designated as critical habitat because these
areas have been analyzed and determined not to be essential.
This unit contains several large populations of Deinandra
conjugens, such as the Johnson Canyon population, estimated at
approximately 480,000 individuals (Helix Environmental Planning, Inc.
2001), capable of producing large numbers of individuals in good years.
These large populations are essential for this plant to survive through
a variety of natural and environmental changes as well as stochastic
events. The unit also contains the Otay River Valley population, which
was reported to have approximately 4,000 standing plants (Roberts
1997), the Wolf Canyon population, which was reported to have
approximately 4,000 standing plants (Roberts 1997), the Brown Field
population, which had a reported 5,600 individuals in 1998 (U.S. Army
Corps of Engineers 2000), and the upper Salt Creek population, which
was reported to have over 1,000 standing plants (Roberts 1997).
Unit 3 contains populations in the southern and eastern portions of
this species' distribution that are essential to the conservation of
the species. One population in this unit is located at the southwestern
edge of this species' range in the United States. This population may
have connectivity with Deinandra conjugens populations in northwestern
Baja California, Mexico. Because of its connectivity, this population
is essential to the conservation of the species.
Based on the proposed preserve design for the draft City of Chula
Vista Subarea Plan, and the designated preserve designs for the City
and County of San Diego HCPs, these populations may all retain
connectivity among themselves because the habitat mosaic does not have
large gaps. The populations in this unit may also provide and receive
pollen or seed from
[[Page 76043]]
Deinandra conjugens populations in the Sweetwater/Proctor Valley Unit.
This connectivity will facilitate gene flow within this unit and
among other units which, in turn, may allow evolutionary processes that
affect Deinandra conjugens to continue relatively unimpeded.
Maintaining the Deinandra conjugens populations and their genetic
connectivity (both within and among units) is essential to the
conservation of this species. A Deinandra conjugens population north of
Otay Valley and west of Otay Lakes is located within designated
critical habitat. This population may provide important genetic
connectivity between the Salt Creek and Otay Valley populations.
Because this unit contains a number of large Deinandra conjugens
populations, these populations will maintain genetic connectivity
within and among themselves, they will maintain genetic connectivity
with the Sweetwater/Proctor Valley Unit and possibly with plants in
Mexico, therefore, the populations in this unit are essential to the
conservation of the species.
Effects of Critical Habitat Designation
Section 7 Consultation
The regulatory effects of a critical habitat designation under the
Act are triggered through the provisions of section 7, which applies
only to activities conducted, authorized, or funded by a Federal agency
(Federal actions). Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR 402.
Individuals, organizations, States, local governments, and other non-
Federal entities are affected by the designation of critical habitat if
their actions occur on Federal lands, require Federal authorization, or
involve Federal funding.
Section 7(a)(2) of the Act requires Federal agencies, including us,
to insure that their actions are not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. This requirement is met
through section 7 consultation under the Act. Our regulations define
``jeopardize the continued existence'' as to engage in an action that
reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
distribution of that species (50 CFR 402.02). ``Destruction or adverse
modification of designated critical habitat'' is defined as a direct or
indirect alteration that appreciably diminishes the value of the
critical habitat for both the survival and recovery of the species (50
CFR 402.02). Such alterations include, but are not limited to, adverse
changes to the physical or biological features, i.e., the primary
constituent elements, that were the basis for determining the habitat
to be critical (50 CFR 402.02).
Section 7(a)(4) requires Federal agencies to confer with us on any
action that is likely to jeopardize the continued existence of a
species proposed for listing or result in destruction or adverse
modification of proposed critical habitat. Conference reports provide
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The conservation
recommendations in a conference report are advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if the species was
listed or critical habitat designated. We may adopt the formal
conference report as the biological opinion when the species is listed
or critical habitat designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)).
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, we
would ensure that the permitted actions do not destroy or adversely
modify critical habitat.
If we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we would 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 Fish and Wildlife Service Regional Director believes would
avoid the 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.
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.
Activities on Federal lands that may affect Deinandra conjugens or
its critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the 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., from the Federal
Highway Administration, Federal Aviation Administration (FAA), or
Federal Emergency Management Agency (FEMA)); permits from the
Department of Housing and Urban Development (HUD); activities by INS on
land under their jurisdiction; activities funded by the U.S.
Environmental Protection Agency (EPA), Department of Energy (DOE), or
any other Federal agency; regulation of airport improvement activities
by FAA; and construction of communication sites licensed by the Federal
Communications Commission (FCC) 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 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 adversely
modify such habitat, or that may be affected by such designation.
Activities that may result in the destruction or adverse modification
of critical habitat include those that alter the primary constituent
elements to an extent that the value of critical habitat for the
conservation of Deinandra conjugens is appreciably reduced. We note
that such activities
[[Page 76044]]
may also jeopardize the continued existence of the species. Activities
that, when carried out, funded or authorized by a Federal agency, may
directly or indirectly destroy or adversely modify critical habitat
include, but are not limited to:
(1) Removing, thinning, or destroying Deinandra conjugens habitat
(as defined in the primary constituent elements discussion), whether by
burning, mechanical, chemical, or other means (e.g., plowing, grubbing,
grading, grazing, woodcutting, construction, road building, mining,
herbicide application, etc.);
(2) Activities that appreciably degrade or destroy Deinandra
conjugens habitat (and its primary constituent elements) that could
include, but not limited to, livestock grazing, clearing, discing,
farming, residential or commercial development, introducing or
encouraging the spread of nonnative species, off-road vehicle use, and
heavy recreational use;
(3) Appreciably diminish habitat value or quality through indirect
effects (e.g., edge effects, invasion of exotic plants or animals, or
fragmentation); and
(4) Activities that alter watershed characteristics in ways that
would appreciably alter or reduce the quality or quantity of surface
and subsurface flow of water needed to maintain grassland, scrub, and
chaparral communities. These activities could include, but are not
limited to, altering the natural fire regime either through fire
suppression or prescribed fires that are too frequent or poorly-timed;
residential and commercial development, including road building and
golf course installations; agricultural activities, including row crops
and livestock grazing; and vegetation manipulation such as clearing or
grubbing in the watershed upslope from Deinandra conjugens.
If you have questions regarding whether specific activities will
constitute adverse modification of critical habitat, 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, Branch of Endangered Species, 911 NE., 11th
Ave., Portland, OR 97232 (telephone 503/231-2063; facsimile 503/231-
6243).
Relationship to Habitat Conservation Plans and Other Planning Efforts
Section 10(a)(1)(B) of the Act authorizes the Service to issue to
non-Federal entities a permit for the incidental take of endangered and
threatened animal species incidental to otherwise lawful activities. An
incidental take permit must be supported by an HCP that identifies
conservation measures that the permittee agrees to implement to
minimize and mitigate the impacts of the permitted take of the species.
Although the Act does not prohibit ``take'' of listed plant species,
many HCPs include plant species as ``covered species'' and provide
conservation measures to protect the species and their habitats. We
include plant species on the incidental take permit in recognition of
the conservation of habitats under the HCP provided we determine that
the permit will not appreciably reduce the likelihood of the survival
and recovery of the plant species in the wild.
In the proposed rule we discussed the relative benefits of
including or excluding from critical habitat lands covered by a legally
operative HCP that includes Deinandra conjugens as a covered species
(See 66 FR 32060) under section 4(b)(2) of the Act. In particular we
noted that the benefits of including HCP lands in critical habitat are
normally small to non-existent because approved HCPs are already
designed to ensure the survival of covered species. HCPs typically
protect essential habitat in reserves that are managed to protect,
restore, and enhance their value as habitat for the species. Moreover,
before approving an HCP or issuing an incidental take permit, we
complete a section 7 of the Act consultation on the proposed permit and
must conclude that the permit will not result in jeopardy to any
covered species in the plan area. HCPs protect and manage essential
habitat for covered species, and typically provide greater conservation
benefit to a species than would result from a section 7 consultation.
In contrast to negligible benefits of including HCP lands in
critical habitat, we noted in the proposed rule that the benefits of
excluding such lands are typically significant. They include relieving
landowners, communities, and counties of any additional regulatory
review that might be imposed by critical habitat. We expressed concern
that imposing as additional regulatory review after HCP completion
could jeopardize conservation efforts and be viewed as a disincentive
to those developing HCPs, while excluding approved HCPs would encourage
the continued development of partnerships with HCP participants,
including States, local governments, conservation organizations, and
private landowners. We concluded that the benefits of excluding lands
covered by a legally operative HCP would normally outweigh the benefits
of including such lands, but that each HCP which includes Deinandra
conjugens as a covered species must be evaluated individually to
determine whether the benefits of excluding lands containing essential
habitat within the plan area outweighed the benefits of including such
lands.
We identified three approved HCPs in the San Diego County that
include Deinandra conjugens as a covered species. These HCPs are the
San Diego Gas and Electric Company HCP, and two subarea plans under the
MSCP, a framework conservation plan that encompasses approximately
236,000 ha (582,000 ac) of land in southwestern San Diego County and
multiple jurisdictions. Those subarea plans are the City of San Diego
Subarea Plan and the County of San Diego Subarea Plan, with the
exception of lands within the County's major and minor amendment areas
that do not address or provide protection for Deinandra conjugens. Each
of the three HCPs protects the essential habitat of Deinandra conjugens
within their respective plan areas. We also completed section 7
consultations on each of the plans and determined that the approved
HCPs would not jeopardize the continued existence of the species in the
wild. For the reasons stated in the proposed rule, we did not include
in the proposed critical habitat rule lands that encompass essential
habitat of Deinandra conjugens within the boundaries of the three
approved HCPs, with the exception of lands in the major and minor
amendment areas under the County of San Diego Subarea Plan.
Consequently, those lands are included in this final critical habitat
determination.
We recently received a revised draft of the Sweetwater Authority
HCP for our review, and are in the process of reviewing the plan's
proposed reserve design. The City of Chula Vista is expected to
complete their MSCP Subarea planning process in the near future. We
have worked closely with the City of Chula Vista on the design of their
preserve, specifically in relation to the conservation of Deinandra
conjugens. The City of Chula Vista's draft Subarea Plan would conserve
several large Deinandra conjugens populations areas in a configuration
that will maintain connectivity within and among these populations. The
draft plan also includes criteria for conservation of Deinandra
conjugens within certain areas that have not yet been surveyed.
[[Page 76045]]
The majority of the lands proposed for conservation under the Chula
Vista Subarea Plan contain clay soils and the appropriate vegetation
types for Deinandra conjugens. Because the City of Chula Vista and
Sweetwater Authority HCPs are not yet completed, the areas within those
plans essential for the conservation of Deinandra conjugens are
included in the designation of critical habitat.
In the event that future HCPs, such as those under development by
the City of Chula Vista and Sweetwater Authority, covering Deinandra
conjugens are developed within the boundaries of designated critical
habitat, we will work with applicants to ensure that the HCPs provide
for protection and management of habitat areas essential for the
conservation of Deinandra conjugens by either directing development and
habitat modification to nonessential areas or appropriately modifying
activities within essential habitat areas so that such activities will
not destroy or adversely modify the primary constituent elements. The
HCP development process provides an opportunity for more intensive data
collection and analysis regarding the use of particular habitat areas
by Deinandra conjugens. The process also enables us to conduct detailed
evaluations of the importance of such lands to the long-term survival
of the species in the context of constructing a biologically configured
system of interlinked habitat blocks. We expect that HCPs developed by
local jurisdictions (e.g., counties, cities) and other parties will
identify, protect, and provide appropriate management for those
specific lands within the boundaries of the plans that are essential
for the long-term conservation of the species. We expect that our
analyses of these proposed HCPs and proposed permits under section 7 of
the Act will show that covered activities carried out in accordance
with the provisions of the HCPs and biological opinions will not result
in destruction or adverse modification of critical habitat.
We will provide technical assistance and work closely with
applicants with respect to HCPs currently under development and future
HCPs to identify lands essential for the long-term conservation of
Deinandra conjugens and appropriate management for those lands. The
minimization and mitigation measures provided under these HCPs are
expected to protect the essential habitat lands designated as critical
habitat in this rule. If an HCP that address Deinandra conjugens as a
covered species is ultimately approved, we may reassess the critical
habitat boundaries in light of the HCP.
Should additional information become available that changes our
analysis of the benefits of excluding any of these (or other) areas
compared to the benefits of including them in the critical habitat
designation, we may revise this final determination accordingly.
Similarly, if new information indicates any of these areas should not
be included in the critical habitat designation because they no longer
meet the definition of critical habitat, we may revise this final
critical habitat designation.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial 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.
Following the publication of the proposed critical habitat
designation, a draft economic analysis was conducted to estimate the
potential economic effect of the proposed designation. The draft
analysis was made publically available for review on July 13, 2002. We
accepted comments on the draft analysis until August 9, 2002.
Our draft economic analysis evaluated potential future effects
associated with the listing of Deinandra conjugens as a threatened
species under the Act, as well as any potential effect of the critical
habitat designation above and beyond those regulatory and economic
impacts associated with listing. To quantify the proportion of total
potential economic impacts attributable to the proposed critical
habitat designation, the analysis evaluated a ``without critical
habitat'' baseline and compared it to a ``with critical habitat''
scenario. The ``without critical habitat'' baseline represented the
current and expected economic activity under all modifications prior to
the critical habitat designation, including protections afforded the
species under Federal and State laws. The difference between the two
scenarios measured the net change in economic activity attributable to
the designation of critical habitat. The categories of potential costs
considered in the analysis included the costs associated with (1)
Conducting section 7 consultations associated with the listing or with
the critical habitat, including incremental consultations and technical
assistance; (2) modifications to projects, activities, or land uses
resulting from the section 7 consultations; (3) uncertainty and public
perceptions resulting from the designation of critical habitat; and (4)
potential offsetting beneficial costs associated with critical habitat
including educational benefits.
The majority of consultations resulting from the critical habitat
designation for Deinandra conjugens are likely to address land
development, road construction or road expansion activities, and
National Wildlife Refuge management activities. As described in the
draft economic analysis, Deinandra conjugens surveys have been
conducted over a broad area, and many occupied areas have been mapped.
As a result, all of the parcels where impacts are expected are occupied
by Deinandra conjugens. As a result, the costs attributable solely to
critical habitat are much smaller than the total section 7 costs.
Following the close of the comment period on the draft economic
analysis, a final addendum was completed which incorporated public
comments on the draft analysis and a re-evaluation of the analysis of
potential economic effects of the designation. Based on this new
analysis, the cost of consultations to third parties was revised.
Subsequently, the addendum concluded that the designation may result in
approximately $370,000 to $466,000 per year in potential economic
effects due to the total effects of critical habitat, including those
effects coextensive with listing. These changes from the draft economic
analysis are due to adjustments made to the third party cost estimates.
As discussed in the final addendum to the economic analysis, a comment
letter from McMillin Land Development suggested that costs associated
with ``extraordinary design measures'' for the Salt Creek sewer line
should be considered as part of the economic costs of critical habitat
designation as many of these costs are directly attributable to
Deinandra conjugens. However, project modifications associated with the
Salt Creek sewer line were primarily due to substantial avoidance of
habitat occupied by the Quino checkerspot butterfly, coastal California
gnatcatcher, and least Bell's vireo, along with other species covered
under the MSCP in the Salt Creek/Otay River area. Therefore, as one of
the covered species, Deinandra conjugens played a minor role in the
recommended project modifications. Further, because of the linear
nature of
[[Page 76046]]
the pipeline project, direct impacts to sanding plants were avoided.
Nevertheless, specific project modifications (i.e., flagging of
additional 200 feet of habitat) would not be required absent critical
habitat designation. Therefore, the final addendum to the economic
analysis conservatively estimates that all administrative costs of the
formal Section 7 consultation, and the costs of the relevant project
modifications, are attributable to the critical habitat designation for
Deinandra conjugens.
A more detailed discussion of our analyses are contained in the
July 13, 2002, Draft Economic Analysis of Proposed Critical Habitat
Designation for the Otay Tarplant (Industrial Economics, Inc. 2002a)
and the Addendum to Economic Analysis of Critical Habitat Designation
for the Otay Tarplant (Industrial Economics, Inc. 2002b). Both
documents are included in the supporting documentation for this
rulemaking and available for inspection at the Carlsbad Fish and
Wildlife Office (refer to ADDRESSES section).
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule and was reviewed by the Office of Management and
Budget (OMB), as OMB determined that this rule may raise novel legal or
policy issues. As required by E.O. 12866, we have provided a copy of
the rule, which describes the need for this action and how the
designation meets that need, and the economic analysis, which assess
the costs and benefits of this critical habitat designation, to OMB for
review.
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. SBREFA amended the
Regulatory Flexibility Act (RFA) to require Federal agencies to provide
a statement of the factual basis for certifying that a rule will not
have a significant economic impact on a substantial number of small
entities. SBREFA also amended the RFA to require a certification
statement. We are hereby certifying that this rule designating critical
habitat for Deinandra conjugens will not have a significant economic
impact on a substantial number of small entities. The following
discussion explains our rationale for this certification.
Small entities include small organizations, such as independent
non-profit organizations, 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 consider the types
of activities that might trigger regulatory impacts under this rule as
well as the 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 the rule would affect a substantial number of small
entities, we consider the number of small entities affected within
particular types of economic activities (e.g., housing development,
grazing, oil and gas production, timber harvesting, etc.). We apply the
``substantial number'' test individually to each industry to determine
if certification is appropriate. A ``substantial number'' of small
entities is more than 20 percent of those small entities affected by
the regulation, out of the total universe of small entities in the
industry or, if appropriate, industry segment. In some circumstances,
especially with proposed critical habitat designations of very limited
extent, we may aggregate across all industries and consider whether the
total number of small entities affected is substantial. In estimating
the numbers of small entities potentially affected, we also consider
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 critical habitat designation.
In estimating the numbers of small entities potentially affected,
we also considered whether their activities have any Federal
involvement. Designation of critical habitat only has the potential to
affect activities conducted, funded, or permitted by Federal agencies.
In areas where the species is present, Federal agencies are already
required to consult with us under section 7 of the Act on activities
that they fund, permit, or implement that may affect Deinandra
conjugens. Federal agencies must also consult with us if their
activities may affect designated critical habitat. Some kinds of
activities are unlikely to have any Federal involvement and so will not
be affected by critical habitat designation. Activities with Federal
involvement that may require consultation regarding Deinandra conjugens
and its critical habitat include: Regulation of activities affecting
waters of the United States by the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act; management activities carried out
by the Service on National Wildlife Refuge lands; and, road
construction, maintenance, and right of way designations that are
authorized, funded, or carried out by a Federal agency. As required
under section 4(b)(2) of the Act, we conducted an analysis of the
potential economic impacts of this critical habitat designation. In the
analysis, we found that the future section 7 consultations resulting
from the listing of Deinandra conjugens and the proposed designation of
critical habitat could potentially impose total economic costs for
consultations and modifications to projects to range between
approximately $2.8 million to $2.9 million over the next 10-year
period. Public comment on the draft economic analysis led to a revis