[Federal Register: January 9, 2008 (Volume 73, Number 6)]
[Rules and Regulations]
[Page 1525-1554]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja08-9]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2007-0026; 92210-1117-0000; ABC Code: B4]
RIN 1018-AU83
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Monterey Spineflower (Chorizanthe pungens var.
pungens)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating revised critical habitat for the threatened Monterey
spineflower (Chorizanthe pungens var. pungens) under the Endangered
Species Act of 1973, as amended (Act). In total, approximately 11,055
acres (ac) (4,475 hectares (ha)) fall within the boundaries of this
revised critical habitat designation. The revised critical habitat is
located in Santa Cruz and Monterey counties, California.
DATES: This rule becomes effective on February 8, 2008.
ADDRESSES: Comments and materials we received, as well as supporting
documentation we used in the preparation of this final rule, are
available for public inspection, by appointment, during normal business
hours at the Ventura Fish and Wildlife Office, 2493 Portola Road, Suite
B, Ventura, CA 93003 (telephone 805-644-1766). The final rule, economic
analysis, and more detailed maps are also available on the Internet at
http://www.fws.gov/ventura.
FOR FURTHER INFORMATION CONTACT: Connie Rutherford, Listing and
Recovery Coordinator for Plants, Ventura Fish and Wildlife Office (see
ADDRESSES), (telephone 805-644-1766, ext. 306; facsimile 805-644-3958).
If you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of revised critical habitat in this rule. For more
detailed background information on the appearance, seed ecology,
habitat requirements, and the historical and current distribution of
Chorizanthe pungens var. pungens, refer to the proposed revised
critical habitat designation published in the Federal Register on
December 14, 2006 (71 FR 75189), and the previous final designation of
critical habitat for C. p. var. pungens published in the Federal
Register on May 29, 2002 (67 FR 37498). Additional information on C. p.
var. pungens is also available in the final listing rule published in
the Federal Register on February 4, 1994 (59 FR 5499).
Chorizanthe pungens var. pungens is an annual species in the
buckwheat family (Polygonaceae). It is a low-growing herb that is soft-
hairy and grayish or reddish in color, with white-to rose-colored
flowers. It produces one seed per flower, and depending on the vigor of
an individual plant, dozens to over one hundred seeds can be produced
(Abrams 1944, F35-1; Fox et al. 2006, pp. 162-163). Seed dispersal in
C. p. var. pungens is likely facilitated by hooked spines on the
structure surrounding the seed. In the Chorizanthe genus, these are
believed to attach to passing animals and disperse seed between plant
colonies and populations (Reveal 2001, unpaginated). Wind also
disperses seed within colonies and populations.
Previous Federal Actions
On May 29, 2002, we designated critical habitat for Chorizanthe
pungens var. pungens on approximately 18,829 acres (ac) (7,620 hectares
(ha)) of land in Santa Cruz and Monterey counties, California (67 FR
37498). In March 2005, the Homebuilders Association of Northern
California, et al., filed suit against the Service (CV-013630LKK-JFM)
challenging final critical habitat rules for several species, including
Chorizanthe pungens var. pungens. In March 2006, a settlement was
reached that requires the Service to re-evaluate five final critical
habitat designations, including critical habitat designated for
[[Page 1526]]
C. p. var. pungens. The settlement stipulated that any proposed
revisions to the C. p. var. pungens designation would be submitted to
the Federal Register for publication on or before December 7, 2006, and
a final determination by December 7, 2007. We published the proposed
revisions to the critical habitat designation for C. p. var. pungens in
the Federal Register on December 14, 2006 (71 FR 75189), and accepted
public comments on the proposed revisions until February 12, 2007. This
final rule completes the Service's obligation regarding this species
under the March 2006 settlement agreement.
On October 16, 2007, we published a notice announcing the
availability of the draft economic analysis and reopening the public
comment period on the revised proposed rule (72 FR 58618). This comment
period closed on October 31, 2007. For more information on previous
Federal actions concerning Chorizanthe pungens var. pungens, refer to
the three documents we previously published in the Federal Register and
identified above in this ``Previous Federal Actions'' section.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
revised designation of critical habitat for Chorizanthe pungens var.
pungens in the revised proposed rule published on December 14, 2006 (71
FR 75189) and again in a subsequent notice of availability of the draft
economic analysis published in the Federal Register on October 16, 2007
(72 FR 58618). We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the revised proposed rule.
During the comment period that opened on December 14, 2006, and
closed on February 12, 2007, we received five comment letters directly
addressing the proposed revised critical habitat designation: Three
from peer reviewers, and two from organizations or individuals. During
the comment period that opened on October 16, 2007, and closed on
October 31, 2007, we received two comment letters addressing the
proposed revised critical habitat designation and the draft economic
analysis. Of these latter comments, one was from a landowner, and one
was from an individual. Of the seven total letters, two commenters
expressed support for a designation of critical habitat for Chorizanthe
pungens var. pungens, two opposed part or all of the designation of
critical habitat for this taxon, and three letters included comments or
information but did not express support or opposition to the proposed
revised critical habitat designation. Comments we received are
addressed in the following summary and incorporated into this final
rule as appropriate. We did not receive any requests for a public
hearing.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from three knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from all three
of the peer reviewers. The peer reviewers provided additional
information, clarifications, and suggestions to improve the revised
final critical habitat rule.
We reviewed all comments we received from the peer reviewers and
the public for substantive issues and new information regarding
critical habitat for Chorizanthe pungens var. pungens, and we address
them in the following summary.
Peer Reviewer Comments
(1) Comment: One peer reviewer noted that we had reduced the size
of the units in the proposed revised designation as compared to the
2002 designation. The reviewer questioned why the northernmost area of
Unit 2 has been divided into 2 subunits that are no longer continuous
along the coastline. The commenter noted that the separation between
the 2 northern subunits seemed artificial because appropriate habitat
is continuous along that stretch of coastline.
Our Response: We used a multi-step process to identify and
delineate critical habitat units. First we mapped all California
Natural Diversity Database (CNDDB) records and additional records from
recent surveys that have been reported to the CNDDB but have not yet
been entered into their database in a Geographic Information System
(GIS) format. We then selected sites from among this data set that
contain the physical and biological features essential to the
conservation of C. p. var. pungens, that may require special management
considerations or protection, and would result in a designation that:
(a) Represents the geographical range of the species, and captures
peripheral populations; (b) encompasses large occurrences in large
areas of contiguous native habitat, as these have the highest
likelihood of persisting through the environmental extremes that
characterize California's climate and of retaining the genetic
variability to withstand future introduced stressors (e.g., new
diseases, pathogens, or climate change); (c) includes the range of
plant communities and soil types in which Chorizanthe pungens var.
pungens is found, (d) maintains connectivity of occurrences; (e)
maintains the disturbance factors that create the openings in
vegetation cover on which this taxon depends; and (f) provides for the
sufficient quantity and spatial arrangement of the primary constituent
element (PCE) to provide for the conservation of the species.
Once we identified all areas that contain the physical and
biological features essential to the conservation of the species, we
focused first on those areas that were either already protected,
managed, or unencumbered by conflicting use (e.g., undeveloped County
or City parks) or otherwise best suited for future conservation (e.g.,
proposed preservation areas). Populations in these areas are most
likely to persist into the future and to contribute to the species'
survival and recovery. We prioritized our selection in the following
manner: First we included undeveloped Federal and State lands, then
local agency and private lands with recognized resource conservation
emphasis (e.g., lands owned by a conservation-oriented, non-profit
organization, or undeveloped County or City parks), and finally other
agency and private lands.
Based on the comments received by the peer reviewer, we have
reviewed the biological information available for the lands in and
adjacent to the northern two subunits of Unit 2 (Moss Landing Unit).
Approximately 224 ac (91 ha) of State lands containing the essential
features for Chorizanthe pungens var. pungens occur along this stretch
of coastline, within Zmudowski and Moss Landing State Beaches. Of the
26 ac (10.5 ha) of land that occurs between the two northernmost
subunits of Unit 2, 6 ac (2.4 ha) are county-owned and 20 ac (8.1 ha)
are privately owned. The habitat between the two northernmost subunits
contains the features essential for the conservation of C. p. var.
pungens, is occupied by the species, and together with the State lands
on either side, provides one contiguous block of coastal habitat for
the species. The 26 ac (10.5 ha) of habitat were included in our
previous critical habitat designation of 2002 and protection of this
coastal area is identified in the Recovery Plan for C. p. var. pungens
as one of the criteria to recover and de-list the species. We conclude
that the 26 acres (10.5 ha) of
[[Page 1527]]
land between the two northernmost subunits of Unit 2 are essential to
the conservation of C. p. var. pungens and have included the lands in
the final revised designation.
(2) Comment: Two peer reviewers commented on the response of
Chorizanthe pungens var. pungens to human-caused disturbance. One peer
reviewer commended the Service for distinguishing between human-caused
disturbance that results in unvegetated openings (e.g., roadsides or
trails) that may be colonized by C. p. var. pungens and openings caused
by animals or other non-human factors in ecologically intact, dynamic,
dune communities. This reviewer described observations made at Moss
Landing Marine Laboratories where biologists distributed seeds of C. p.
var. pungens in dune soils disturbed by construction. Although these
attempts resulted in initially large numbers of flowering C. p. var.
pungens, the numbers declined substantially over the following 6 years,
even though there appeared to be sufficient bare ground for the
persistence of C. p. var. pungens. The other peer reviewer indicated
that from her 10 years of experience with C. p. var. pungens it is
clear that human-caused disturbances, such as roads and trails, are
soon invaded by nonnative, invasive plants, which compete with C. p.
var. pungens. The peer reviewer suggested that invasive, nonnative
plants must be controlled on roads and trails to prevent a decline in
C. p. var. pungens, and that if roads and trails are not needed they
should be restored to a condition where openings between shrubs are
free of nonnative plant species.
Our Response: We appreciate the information provided by the peer
reviewers and have provided clarifications in the section titled
``Criteria Used to Identify Critical Habitat'' in this final rule in
response to their comments.
(3) Comment: One peer reviewer indicated that the area for Unit 8
(Fort Ord) is an overestimate of area actually occupied by Chorizanthe
pungens var. pungens. The reviewer noted that the proposed unit
contains high quality habitat for C. p. var. pungens in some areas,
while other areas support a high cover of perennials or have been
invaded by nonnative plant species.
Our Response: We recognize that the area of Unit 8 (Fort Ord Unit)
exceeds the area currently documented to be occupied by Chorizanthe
pungens var. pungens because, due to mapping limitations and scale, it
does not exclude intervening, currently unoccupied habitat. Unit 8
contains multiple populations of C. p. var. pungens within a mosaic of
oak woodland, coastal sage scrub, and maritime chaparral where the soil
and vegetation structure currently provide the open conditions suitable
for its growth and reproduction (i.e., the primary constituent
element). Over time, the locations of suitable habitat will change as
some maritime chaparral stands age, resulting in a continuous
vegetation canopy, while other openings are created through shrub
death, prescribed fire, or animal use. The size and configuration of
Unit 8 is designed to accommodate the ephemeral and successional nature
of any given opening in its ability to support C. p. var. pungens and
the value of habitat management at a landscape scale.
(4) Comment: One peer reviewer noted the fragmented configuration
of the proposed revised critical habitat and indicated that this
configuration will require specific management actions to reduce the
detrimental effects of fragmentation so that critical habitat can
provide for the conservation of the species.
Our Response: We recognize that, in many cases, development has
already resulted in a discontinuous distribution of lands supporting
the physical and biological features essential for the conservation of
Chorizanthe pungens var. pungens. In cases where public lands
supporting the essential features are contiguous, we have tried to
designate those lands within the same critical habitat unit or subunit.
For example, Unit 8 (Fort Ord) consists of public lands supporting the
essential features over a relatively large area, unfragmented by
development. This lack of intervening development improves the
likelihood that future management will be able to promote multiple,
large areas of the relatively open, maritime chaparral plant community
that is suitable for C. p. var. pungens. We recognize that specific
management actions will likely be needed in some of the designated
units to overcome the disadvantages of habitat fragmentation.
(5) Comment: One peer reviewer commented that it was not clear why
the Del Rey Oaks unit from the 2002 final designation was not included
in the 2006 proposed revised critical habitat designation.
Our Response: As we indicated in the revised proposed rule, the
previously designated Del Rey Oaks unit contains substantial areas that
have continued to be developed since 2002, and, as a consequence, the
areas within the unit that contain the PCE for Chorizanthe pungens var.
pungens are very fragmented. Therefore, the PCE is no longer in the
spatial arrangement and quantity necessary to be considered essential
to the conservation of the species. As we noted in our response to
Comment 1, in determining which areas to include in critical habitat,
we first identified all areas which contain the PCE for the species in
sufficient quantity and spatial arrangement and are either already
protected, managed, or unencumbered by conflicting use (e.g., Federal
lands, undeveloped County or State parks, proposed preservation areas).
These areas are the focus for our designation, as they generally
consist of higher quality habitat that is most likely to persist into
the future. The Del Rey Oaks unit designated in the 2002 final rule is
in close proximity to the much larger Fort Ord unit (Unit 8). We
determined that the Fort Ord unit, which encompasses a large amount of
unfragmented public land that supports the essential physical and
biological features, contains sufficient areas containing the PCE laid
out in the appropriate quantity and spatial arrangement to provide for
the conservation of C. p. var. pungens in this area.
(6) Comment: One peer reviewer commented that mowing can be an
appropriate management tool where nonnative annual grasses have
invaded, if mowing is done at the proper time and height to remove
annual grass seedheads prior to their maturity, while leaving the low-
growing Chorizanthe pungens var. pungens intact.
Our Response: We agree that where nonnative grasses are abundant,
mowing could potentially be designed to avoid Chorizanthe pungens var.
pungens, while removing maturing grasses prior to seed maturity. We
have revised the text under the ``Primary Constituent Elements''
section, below, to reflect this.
Public Comments
(7) Comment: One commenter recommended that two additional areas
occupied by Chorizanthe pungens var. pungens be included in the
critical habitat designation. One of these is Armstrong Ranch, which
the commenter indicated would provide a connection between Units 3 and
8 in the proposed revised designation. The other site is a population
at the summit of North Rodeo Gulch Road, northwest of Soquel in Santa
Cruz County, which the commenter indicated supports the northernmost
population of C. p. var. pungens.
Our Response: In designing this critical habitat designation, we
sought to include locations throughout the range of the species that
encompass the variation in soil type, vegetation
[[Page 1528]]
communities, elevation, and coastal influences of sites where
populations of Chorizanthe pungens var. pungens occur. We chose to
include in this revised designation lands at former Fort Ord and the
coast, but did not include Armstrong Ranch. We recognize that Armstrong
Ranch provides connectivity between Units 3 (Marina) and 8 (Fort Ord);
however, we do not believe that these lands should be designated
because they do not support the highest quality habitat and the PCE in
the appropriate quantity and spatial arrangement for the conservation
of C. pungens var. pungens. Due to its agricultural past, Armstrong
Ranch is dominated by nonnative annual grasses, with infrequent patches
of coastal sage scrub. In designating Units 3 (Marina) and 8 (Fort
Ord), we have included in the designation the more sparsely vegetated
dune sands of the coast and the more developed (i.e., deeper), ancient
sandy soils of the interior Fort Ord, which support native coastal sage
scrub and maritime chaparral vegetation. Consequently, we have
encompassed the soil types and native plant communities representing
the high quality habitat and the PCE in the appropriate quantity and
spatial arrangement for the conservation of C. pungens var. pungens in
this region. These are the lands that we believe are essential to the
conservation of C. p. var. pungens.
We did not include the Chorizanthe population near North Rodeo
Gulch Road in this revised designation, because of uncertainty
regarding its taxonomy. A preliminary genetic analysis in 2007 (Baron
and Brinegar 2007, p. 5) determined that the molecular data from this
population is consistent with that of Chorizanthe pungens var. pungens
and the robust spineflower (C. robusta var. robusta), but that analysis
could not assign this population to one or the other of the two taxa.
Other techniques are now being used to investigate the relationship of
this population to these taxa. Therefore, to represent the most
northern distribution of C. pungens var. pungens, we designated the
location near Freedom Boulevard. This location is the one for which we
have the most complete information, it supports the PCE in the
appropriate quantity and spatial arrangement, and encompasses a large
population of C. p. var. pungens.
(8) Comment: One commenter suggested that the boundaries for Unit
5, the Freedom Boulevard Unit, be redrawn to encompass a location that
supports the PCE and a population of Chorizanthe pungens var. pungens
on an approximately 15 ac (6 ha), privately owned parcel near the
intersection of Valencia Road and Freedom Boulevard, and just outside
the boundary of the proposed Freedom Boulevard Unit.
Our Response: We had information about other populations of
Chorizanthe pungens var. pungens that exist in the Freedom Boulevard
area. However, we did not include the lands that support those
populations in our revised proposed rule published in 2006 because most
of those lands are fragmented by rural ``ranchette''-type development
and were not likely to support populations of Chorizanthe pungens var.
pungens into the future. We concluded that the area included in the
final revised designation provides sufficient areas containing the PCE
in the quantity and spatial arrangement for the conservation of the
species in this portion of the species' range. These 24 ac (10 ha)
support the essential physical and biological features and one of the
largest populations of Chorizanthe pungens var. pungens in the Freedom
Boulevard area for which we have documentation.
(9) Comment: One commenter questioned whether the mapping was
correct for the southern boundary of proposed Unit 3 (Marina). The
commenter noted that the map appears to encompass an approximately 0.5
ac (0.2 ha) privately owned parcel, but that the description states
that the unit contains only State lands.
Our Response: The commenter is correct in noting that our map for
Unit 3 contained an error at the southern boundary. To delineate these
unit boundaries, we used parcel data from the Department of the Army
(Army) for Fort Ord. We did not realize it did not match the parcel
boundaries from the Monterey County assessor's office. We intend Unit 3
to extend south only to the boundary of State land, and we have made
the correction in this revised designation. No private lands are
included in this unit.
(10) Comment: One commenter suggested that the microclimate of the
inland area in Unit 9 (Soledad) does not seem consistent with the
coastal habitat described for Chorizanthe pungens var. pungens.
Our Response: As we indicated in the revised proposed rule, the
habitat of Chorizanthe pungens var. pungens is sandy soils in active
dune systems and bluffs, grassland, scrub, chaparral, and woodland
communities containing open areas free of other vegetation. The taxon
is not restricted to dunes on the immediate coast. Historically, in the
late 1800s and early 1900s, several collections of C. p. var. pungens
were made from the Salinas Valley, and we know of one extant population
in the Salinas Valley in interior Monterey County on the lands we are
designating as Unit 9. Please see the discussion in the ``Critical
Habitat Designation'' section of this final rule for more information
on Unit 9 and its value to the conservation of the species.
(11) Comment: One commenter stated that the process of designating
critical habitat for endangered species was invalid because the
Endangered Species Act had expired.
Our Response: The Endangered Species Act has not expired. Section
15 of the Act, which authorizes appropriations to carry out functions
and responsibilities under the Act, has text authorizing funding
through fiscal year 1992, i.e., the funding authorization provided in
Section 15 expired on October 1, 1992. Although Section 15 has not been
amended to change the authorization language, Congress has appropriated
funds for continued implementation of the administrative provisions of
the Act in each subsequent fiscal year, and these annual Congressional
decisions are a de facto extension of the authorization of
appropriations. All of the requirements and prohibitions of the Act
remain in force, even in the absence of a change in the text of Section
15 of the Act.
(12) Comment: One commenter stated that zero acres should be
designated as critical habitat.
Our Response: The identification of areas that are essential for
the conservation of the species is beneficial. The process of
designating critical habitat, in which we clearly delineate features
and areas of high conservation value for the species, helps focus and
promote conservation efforts by other parties. Critical habitat
designations may also provide greater regulatory benefits to the
recovery of a species than would listing alone because the analysis of
effects to critical habitat is a separate and different analysis from
that of the effects to the species. Under section 7(a) of the Act,
Federal agencies must insure that their actions are not likely to (1)
jeopardize the continued existence of a listed species, or (2) result
in the destruction or adverse modification of that species' critical
habitat. The regulatory standard is different for each: the jeopardy
analysis looks at the action's impact on survival and recovery of the
species, while the adverse-modification analysis looks at the action's
effects on the designated habitat's contribution to the species'
conservation.
[[Page 1529]]
Comments Related to the Draft Economic Analysis
(13) Comment: One commenter stated that the future costs associated
with conservation efforts for Chorizanthe pungens var. pungens
forecasted in the draft economic analysis are estimates, which are
almost always far below what the eventual costs are when they are
counted.
Our Response: The purpose of the draft economic analysis is to
estimate the economic impact of actions taken to protect Chorizanthe
pungens var. pungens and its habitat. It attempts to quantify the
economic effects associated with the proposed revised designation of
critical habitat. It does so by taking into account the cost of
conservation related measures that are likely to be associated with
future economic activities that may adversely affect the habitat within
the proposed revised boundaries. The analysis looks retrospectively at
costs incurred since C. p. var. pungens was listed, and it attempts to
predict future costs likely to occur after the proposed revised
critical habitat designation is finalized. It does this by
incorporating the best available information from the section 7
consultations, the Recovery Plan, and conversations with landowners and
the Service.
(14) Comment: One commenter noted that the designation of proposed
critical habitat unit 9 would damage farming operations in the
immediate area. The commenter stated that unit 9 is surrounded by
farming operations, presently partially farmed, and planned for
additional farm development. The commenter requests that the economic
analysis consider the negative impact of critical habitat designation
on the farm.
Our Response: After many attempts to speak with this commenter, he
could not be reached regarding future farming development and whether
or not a federal nexus would occur on his land after critical habitat
is designated. We lack sufficient information to quantify the impacts
to the commenter of the critical habitat designation.
Summary of Changes From the Revised Proposed Rule and Previous Critical
Habitat Designation
In preparing this final revised critical habitat designation for
Chorizanthe pungens var. pungens, we reviewed and considered comments
from the public and peer reviewers on the proposed revised designation
of critical habitat published on December 14, 2006 (71 FR 75189), and
public comments on the draft economic analysis published on October 16,
2007 (72 FR 58618). As a result of all comments received on the revised
proposed rule and the draft economic analysis, we made changes to our
proposed revised designation, as follows:
(1) We corrected the error in Unit 3 by remapping its southern
boundary to match the boundary of State lands. This resulted in a
reduction of Unit 3 from 884 ac (358 ha) to 881 ac (357 ha). The
acreage change is reflected in Table 1.
(2) We included 26 ac (10.5 ha) that had been included in our
previous 2002 critical habitat designation between the 2 northernmost
subunits of Unit 2 (Moss Landing).
(3) We incorporated technical information provided by the peer
reviewers.
(4) We revised the PCE to incorporate the dynamic processes that
create and maintain openings in the vegetation communities in which
Chorizanthe pungens var. pungens grows.
This final designation is unchanged from the proposed revised
designation with the following exceptions: (1) The correction of a
mapping error has reduced Unit 3 by 3 ac (1 ha); and (2) the inclusion
of 26 ac (10.5 ha) that had been included in our previous 2002 critical
habitat designation between the 2 northern subunits of Unit 2 (Moss
Landing), which has increased the size of that unit. The result of
these changes has been the increase of final critical habitat
designated to 11,055 ac (4,475 ha); this represents a total of 23 ac (9
ha) more than what we proposed in 2006. At the same time, this
represents a decrease of 7,774 ac (3,145 ha) from what we previously
designated as critical habitat in 2002.
The areas identified in this revised critical habitat designation
constitute a revision from the areas we designated as critical habitat
for Chorizanthe pungens var. pungens on May 29, 2002 (67 FR 37498). The
main differences include the following:
(1) The 2002 critical habitat rule (67 FR 37498) consisted of 10
units comprising a total of 18,829 ac (7,620 ha). This revision
includes 9 units comprising a total of 11,055 ac (4,475 ha). Eight of
the units in the revision are generally located in the same geographic
locations as those from the previous designation and bear the same unit
names. The ninth unit in this revision (Unit 6--Manresa) was included
in the previous proposed critical habitat designation in 2000, but
dropped from the previous final designation in 2002 due to confusion
concerning the identity of the spineflower populations that occur
there. Since 2002, we confirmed the presence of Chorizanthe pungens
var. pungens at Manresa State Beach. Additionally, two of the units
included in the previous designation in 2002 are not included in this
revision. One of these units, Del Rey Oaks, has substantial areas of
development within its boundaries, and, as a consequence, the areas
within the unit that contain the essential features are very
fragmented. The second of these units, Bel Mar, is in close proximity
to Unit 6 (Manresa) included in this revision, but not included in the
2002 critical habitat rule. The Monterey spineflower in Unit 6
(Manresa) was recently discovered and contains a more robust population
than the Bel Mar unit. For these reasons, the Del Rey Oaks and Bel Mar
units designated in 2002 are no longer considered essential to the
conservation of the species.
(2) We revised the PCEs. The 2002 critical habitat rule listed four
separate elements that we believed to be important to maintaining
populations of Chorizanthe pungens var. pungens where they occur
(soils, plant communities, low cover of nonnative species, and physical
processes that support natural dune dynamics). In this revision of
critical habitat, we have combined these four elements within one PCE
in an effort to emphasize the overarching importance of the structure
of the vegetation (mosaic with openings between the dominant elements).
(3) Most of the units in this revision are smaller in acreage than
their counterpart units in the 2002 critical habitat rule. The decrease
in size is due primarily to the removal of numerous parcels in private
ownership where, due to the availability of updated aerial imagery, we
removed areas of development included in the 2002 critical habitat rule
and areas developed since the publication of the 2002 rule. In
addition, the changes to Unit 7 are due to the removal of areas
designated in the 2002 rule that are underlain by soil types not known
to support Monterey spineflower, and removal of areas containing
suitable soils isolated by development (and not known to support
Monterey spineflower). The resulting units are more accurately mapped
to include those areas that contain the PCE laid out in the appropriate
quantity and spatial arrangement for the conservation of the species.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical 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
[[Page 1530]]
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical 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, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7 of the Act requires consultation on Federal actions
that may affect critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow the government or public to access private lands. Such
designation does not require implementation of restoration, recovery,
or enhancement measures by the landowner. Where the landowner seeks or
requests federal agency funding or authorization may affect a listed
species or critical habitat, the consultation requirements of Section 7
would apply, but even in the event of a destruction or adverse
modification finding, the landowner's obligation is not to restore or
recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain the physical and biological features that are essential to
the conservation of the species. Critical habitat designations
identify, to the extent known using the best scientific data available,
habitat areas that provide essential life cycle needs of the species
(areas on which are found the primary constituent elements laid out in
the appropriate quantity and spatial arrangement for the conservation
of the species, as defined at 50 CFR 424.12(b)).
Areas within the geographical area occupied by the species that
contain the physical and biological features essential to the
conservation of the species meet the definition of critical habitat
only if those features may require special management considerations or
protection.
Under the Act, we can designate an area outside of the geographical
area occupied by the species at the time of listing as critical habitat
only when we determine that the best available scientific data
demonstrate that the designation of that area is essential to the
conservation needs of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge.
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 we may
eventually determine, based on scientific data not now available to the
Service, are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not be required for
recovery of the species.
Areas that support populations of Chorizanthe pungens var. pungens,
but are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. They are also subject to the regulatory protections afforded
by the section 7(a)(2) jeopardy standard, as determined on the basis of
the best available scientific information at the time of the agency
action. Federally funded or permitted projects affecting listed species
outside their designated critical habitat areas may still result in
jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available to
these planning efforts calls for a different outcome.
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 within the geographical area occupied by the species at the
time of listing, we consider the physical and biological features that
are essential to the conservation of the species to be the primary
constituent elements laid out in the appropriate quantity and spatial
arrangement for conservation of the species. These include, but are not
limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derived the specific primary constituent element required for
Chorizanthe pungens var. pungens from its biological needs, as
described below.
Space for Individual and Population Growth, Including Sites for Seed
Dispersal and Germination, and for the Seed Bank
Chorizanthe pungens var. pungens readily grows where suitable sandy
substrates occur and, like other Chorizanthe species, where competition
with other plant species is minimal (Harding Lawson Associates 2000, p.
1; Reveal 2001, unpaginated). Where C. p. var. pungens occurs within
native plant communities, along the coast as well as at more interior
sites, it occupies microhabitat sites between shrub stands where there
is little cover from other herbaceous species. Where C. p. var.
[[Page 1531]]
pungens occurs within grassland communities, the density of C. p. var.
pungens may decrease with an increase in the density of other
herbaceous species. Conserved areas should be of sufficient size and
spatial arrangement to maintain the native plant communities that
support C. p. var. pungens, which include coastal dune, coastal scrub,
grassland, maritime chaparral, oak woodland, and interior floodplain
dune communities, and have a structure with openings between the
dominant elements (Service 1998, p. 20).
These openings within the vegetation community should be free of
nonnative invasive plant species. Not only do invasive, nonnative
plants physically exclude Chorizanthe pungens var. pungens seedlings,
but many of the hymenopteran (members of the insect order that includes
bees, wasps, and ants) pollinators important to Chorizanthe pollination
(e.g., sphecid wasps, bumblebees, and bees from the families Halictidae
and Anthophoridae) require bare ground for nesting (Murphy 2003a, p.
4). Removal of invasive, nonnative species may help to maintain
existing rates of pollinator visitation. Although areas with little or
no cover of invasive, nonnative species may be optimal for the
conservation of C. p. var. pungens, seeds that could subsequently
germinate may still be present beneath the canopy of the nonnative,
invasive plants.
Conservation of Chorizanthe pungens var. pungens depends not only
on adequate space for growth, but also on maintaining the dynamic
nature of C. p. var. pungens habitat, which ensures the availability of
microsites appropriate for germination and growth. Coastal dune
communities are subject to natural dynamic processes that create
suitable openings in scrub and chaparral communities (Cooper 1967, pp.
63-72; Barbour and Johnson 1988, p. 242). Shifts in habitat composition
caused by patterns of dune mobilization that create openings suitable
for C. p. var. pungens are followed by stabilization and successional
trends in coastal dune scrub that result in increased vegetation cover
over time (Barbour and Johnson 1988, p. 242). Accordingly, over time
there are shifts in the distribution and size of individual colonies of
C. p. var. pungens found in the gaps between shrub vegetation. In most
years, one can find patches of plants separated by several feet
(meters) or several hundred feet (meters) within a particular area. In
following years, the distribution of plants may shift due to seed
dispersal by animals or wind, emergence of seeds from a relatively
short-lived soil seed bank, and/or fire that has opened up the
vegetation canopy, creating a site suitable for germination of seeds
and growth of this taxon.
Human-caused disturbances, such as scraping of roads and
firebreaks, can reduce the competition from other herbaceous species
and consequently provide temporarily favorable conditions for
Chorizanthe pungens var. pungens. This has been observed at former Fort
Ord where C. p. var. pungens occurs along the margins of dirt roads
(Army Corps of Engineers (Corps) 1992, p. 39; U.S. Bureau of Land
Management (BLM) 2003, pp. 15-22). However, such activities also often
promote the spread and establishment of nonnative species (Fusari and
McStay 2007, p. 9); in addition, they can bury the seedbank of C. p.
var. pungens, and they do not result in the cycling of nutrients and
soil microbial changes that are associated with large-scale natural
disturbances such as fires (Stylinski and Allen 1999, pp. 544-554;
Keeley and Keeley 1989, pp. 67-70). In one case, C. p. var. pungens had
been initially abundant in disturbed soils where its seeds had been
scattered, but it subsequently declined in abundance even though
seemingly suitable open habitat persisted (Slattery 2007, pp. 1-3).
This type of management may not sustain populations over the long term
and would likely result in a general degradation of habitat for C. p.
var. pungens if conducted over large areas.
Conservation of Chorizanthe pungens var. pungens depends on
adequate space to promote pollinator activity and minimize the edge
effects associated with urban development. Larger areas with a high
area-to-edge ratio are less likely to be affected by the range of human
activities that would alter adjacent C. p. var. pungens habitat.
Potential edge effects identified for other Chorizanthe species that
may also affect C. p. var. pungens include the introduction of
nonnative plants (e.g., landscaping plants), roadside mowing for fuel
reduction, informal recreation, trash and landscape waste dumping,
hydrologic changes from landscape watering or increased paved surfaces,
and pesticide drift (Conservation Biology Institute 2000, pp. 6-17).
Large occurrences of C. p. var. pungens are more likely to attract
insect pollinators necessary for gene flow and the production of viable
seed, are better able to withstand periodic extreme environmental
stresses (e.g., drought, disease), and may act as important ``source''
populations to allow recolonization of surrounding areas following
periodic extreme environmental stresses (Schemske et al., pp. 584-588).
Small patches of plants have been documented to suffer reproductive
failure due to lack of effective pollination when critical thresholds
of isolation were exceeded. In contrast, sufficiently large patches of
plants attracted pollinators regardless of their degree of isolation
(Groom 1998, p. 487). However, small populations of plants may serve
other functions that support the long-term persistence of the species.
They may serve as corridors for gene flow between larger populations,
and may harbor greater levels of genetic diversity than predicted for
their size (Lesica and Allendorf 1991, pp. 172-175).
Chorizanthe pungens var. pungens appears to function as an
opportunistic annual plant, with most of its seeds germinating under
variable winter conditions rather than persisting to create an
extensive, long-lasting soil seed bank (Fox et al. 2006, p. 168). This
highlights the importance of protecting above-ground plants from
germination through seed set each year (approximately December through
the following September), as it appears the persistence of C. p. var.
pungens relies on successful seed set from the previous year in
addition to adequate climatic conditions. This has implications for the
amount of successive disturbance that C. p. var. pungens can endure and
still persist. Management activities that are used for nonnative,
invasive species removal, such as mowing, must be conducted in a manner
that does not adversely affect seed development in the C. p. var.
pungens population; otherwise, it is unlikely to be compatible with the
long-term persistence of C. p. var. pungens.
Areas That Provide the Basic Requirements for Growth (Such as Water,
Light, and Minerals)
Chorizanthe pungens var. pungens occurs on sandy soils with a
variable origin, including active dunes, interior fossil dunes, and
floodplain alluvium (Service 1998, pp. 1-13, 20). The most prevalent
soil series represented are coastal beaches, dune sand, Baywood sand,
Oceano loamy sand, Arnold loamy sand, Santa Ynez fine sandy loam,
Arnold-Santa Ynez complex, Metz loamy sand, and Metz complex (Soil
Conservation Service 1978, pp. 13-73; 1980, pp. 9-81). Sites where C.
p. var. pungens occurs are generally bare, sandy patches free of other
vegetation (Zoger and Pavlik 1987, unpaginated). On the coast, it
occurs in coastal dune scrub and chaparral communities (Service 1998,
pp. 19-20; CNDDB 2006). Chorizanthe pungens var. pungens does not occur
under dense stands of
[[Page 1532]]
vegetation, but will occur between more widely spaced shrubs or gaps in
the shrub vegetation. At more inland sites, C. p. var. pungens occurs
on sandy, well-drained soils in a variety of habitat types, most
frequently maritime chaparral, valley oak woodlands, and grasslands
(CNDDB 2006). In grassland and oak woodland communities, abundant
annual grasses may outcompete C. p. var. pungens, but in places where
grass species are controlled through grazing, mowing, or fire
activities that are appropriate in timing and intensity, C. p. var.
pungens may persist (e.g., Zander Associates 2003, pp. B.22-B.24;
Fusari 2007, p. 2). Additional specific information about the native
plant communities associated with C. p. var. pungens can be found in
the listing rule notice (59 FR 5499) and the previous final critical
habitat designation (67 FR 37498).
Primary Constituent Element for Chorizanthe pungens var. pungens
Under the Act and its implementing regulations, we are required to
identify the known physical and biological features within the
geographical area occupied by Chorizanthe pungens var. pungens at the
time of listing that are essential to the conservation of the species
and that may require special management considerations or protections.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that the PCE for Chorizanthe pungens var. pungens is a vegetation
structure arranged in a mosaic with openings between the dominant
elements (e.g., scrub, shrub, oak trees, or clumps of herbaceous
vegetation) that changes in spatial position as a result of physical
processes such as windblown sands and fire and that allows sunlight to
reach the surface of the following sandy soils: coastal beaches, dune
land, Baywood sand, Ben Lomond sandy loam, Elder sandy loam, Oceano
loamy sand, Arnold loamy sand, Santa Ynez fine sandy loam, Arnold-Santa
Ynez complex, Metz complex, and Metz loamy sand.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the areas
within the geographical area determined to be occupied at the time of
listing contain the physical and biological features that are essential
to the conservation of the species and may require special management
considerations or protection.
The known occurrences of Chorizanthe pungens var. pungens are
threatened by direct and indirect effects from habitat fragmentation
and loss and edge effects resulting from urban development. Examples of
edge effects include increases in invasive, nonnative species and
increased trampling and soil compaction from recreation (Conservation
Biology Institute 2000, p. 5). Additional threats include road
development, invasive species control with herbicides, industrial and
recreational development, equestrian and other recreational activities,
and dune stabilization using nonnative species (59 FR 5499). Threats
that could result in unfavorable disturbance intensity, frequency, or
timing and can destroy individual plants or deplete any associated seed
bank include road maintenance, invasive species control, and fire
suppression. These threats may require special management
considerations or protection to ensure the long-term conservation of C.
p. var. pungens and are described below in the individual discussions
of the units.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific and commercial data available in determining areas that
contain the physical and biological features that are essential to the
conservation of Chorizanthe pungens var. pungens. This includes
information from the final listing rule; data from research and survey
observations published in peer-reviewed articles; reports and survey
forms prepared for Federal, State, and local agencies and private
corporations; site visits; regional GIS layers, including soil and
species coverages; and data submitted to the CNDDB. We have also
reviewed available information that pertains to the ecology, life
history, and habitat requirements of this species. This material
included information and data in peer-reviewed articles, reports of
monitoring and habitat characterizations, reports submitted during
section 7 consultations, our recovery plan for the species, and
information received from local species experts. We are not designating
any areas outside of the geographical area occupied by the species at
the time of listing because we believe the areas we have designated
provide sufficient essential habitat for the conservation of the
species; therefore, unoccupied areas are not needed in the designation.
The long-term conservation of Chorizanthe pungens var. pungens is
dependent upon the protection of existing population sites and the
quantity and spatial arrangement of the PCE and essential habitat that
provides for the maintenance of ecologic functions, such as
connectivity between populations within close geographic proximity to
facilitate pollinator activity and seed dispersal.
Determining the specific areas that this taxon occupies is
challenging for several reasons: (1) The distribution of Chorizanthe
pungens var. pungens appears to be more closely tied to the presence of
sandy soils and openings in the surrounding vegetation than to specific
plant communities, because plant communities may undergo changes over
time, which, due to the degree of cover that is provided by that
vegetation type, may either favor the presence of C. p. var. pungens or
not; (2) the way the current distribution of C. p. var. pungens is
mapped varies depending on the scale at which patches of individuals
were recorded (e.g., many small patches versus one large patch); and
(3) depending on the climate and other annual variations in habitat
conditions, the extent of the species' distribution may either shrink
and temporarily disappear, or enlarge and cover a more extensive area.
We used a multi-step process to identify and delineate critical
habitat units. First we mapped all CNDDB records of Chorizanthe pungens
var. pungens known at the time of the final listing in a GIS format.
These data consist of points and polygons depicting the results of
field surveys. Additional records from recent surveys that have been
reported to the CNDDB but have not yet been entered into their database
were also mapped in GIS format. These surveys provided more detailed
distribution information for C. p. var. pungens within and around known
occurrences, but did not extend the known range of the taxon. We then
selected sites from among this data set that contain the physical and
biological features essential to the conservation of C. p. var.
pungens, that may require special management considerations or
protection, and would result in a designation that: (a) Represents the
geographical range of the species, and captures peripheral populations;
(b) encompasses large occurrences in large areas of contiguous native
habitat, as these have the highest likelihood of persisting through the
environmental extremes that characterize California's climate and of
retaining the genetic variability to withstand future introduced
stressors (e.g., new diseases, pathogens, or climate change); (c)
includes the range of plant communities
[[Page 1533]]
and soil types in which C. p. var. pungens is found, (d) maintains
connectivity of occurrences; (e) maintains the disturbance factors that
create the openings in vegetation cover on which this taxon depends;
and (f) provides for the sufficient quantity and spatial arrangement of
the PCE to provide for the conservation of the species.
Species and plant communities that are protected across their
ranges are expected to have lower likelihoods of extinction (Scott et
al. 2001, pp. 1297-1300); therefore, critical habitat should include
multiple locations across the entire range of the species to prevent
range collapse. Protecting peripheral or isolated populations is highly
desirable because they may contain genetic variation not found in core
populations. The genetic variation results from the effects of
population isolation and adaptation to locally distinct environments
(Lesica and Allendorf 1995, pp. 754-757; Fraser 2000, pp. 49-51;
Hamrick and Godt 1996, pp. 291-295). We also sought to include the
range of plant communities, soil types, and elevational gradients in
which Chorizanthe pungens var. pungens is found to preserve the genetic
variation that may result from adaptation to local environmental
conditions, as documented in other plant species (e.g., see Hamrick and
Godt 1996, pp. 299-301; Millar and Libby 1991, pp. 150, 152-155).
Finally, habitat fragmentation can result in loss of genetic variation
(Young et al. 1996, pp. 413-417); therefore, we sought to maintain
connectivity between patches or occurrences of plants.
Once we identified all areas that contain the physical and
biological features essential to the conservation of the species, we
focused first on those areas that were either already protected,
managed, or otherwise unencumbered by conflicting use (e.g.,
undeveloped County or City parks, proposed preservation areas).
Populations in these areas are most likely to persist into the future
and to contribute to the species' survival and recovery. We prioritized
our selection in the following manner: First we included undeveloped
Federal and State lands, then local agency and private lands with
recognized resource conservation emphasis (e.g., lands owned by a
conservation-oriented, non-profit organization, or undeveloped County
or City parks), and finally other agency and private lands.
After applying the criteria described above, the lands we are
designating as revised critical habitat fall under prong one of the
definition of critical habitat in section 3(5)(A) of the Act (see
``Critical Habitat'' section). We did not identify any lands outside of
the geographical area occupied by the species at the time of listing as
essential to the conservation of the species.
Mapping
To map the critical habitat units, we overlaid Chorizanthe pungens
var. pungens records on soil series data and, where available,
vegetation data (e.g., maritime chaparral mapped by Van Dyke and Holl
(2003)) to determine appropriate areas that would contain the physical
and biological features essential to the conservation of C. p. var.
pungens. This taxon is closely tied to the presence of sandy soil
types, and occurrences are generally scattered in gaps between
vegetation within appropriate soil types. Units were delineated by
first mapping the occurrences and soil types and then considering other
geographic features such as developed areas and road boundaries.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas, such as lands covered by buildings,
paved areas, and other structures, as well as tilled fields, row crops,
and golf courses that lack the features essential for the conservation
of Chorizanthe pungens var. pungens. The scale of the maps we prepared
under the parameters for publication within the Code of Federal
Regulations may not reflect the exclusion of such developed areas. Any
such structures and the land under them inadvertently left inside
critical habitat boundaries shown on the maps of this revised critical
habitat designation have been excluded by text and are not designated
as revised critical habitat. Therefore, Federal actions involving these
areas would not trigger section 7 consultation with respect to critical
habitat and the requirement of no adverse modification, unless the
specific action would affect the primary constituent elements in the
adjacent critical habitat.
A brief discussion of each area designated as revised critical
habitat is provided in the unit descriptions below. Additional detailed
documentation concerning the essential nature of these areas is
contained in our supporting record for this rulemaking.
Critical Habitat Designation
We are designating nine units as revised critical habitat for
Chorizanthe pungens var. pungens. These units, which generally
correspond to those units in the 2002 designation, entirely replace the
2002 critical habitat designation for C. p. var. pungens in 50 CFR
17.96(a). The critical habitat units we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for C. p. var. pungens. Table 1 shows the occupied units.
Table 1.--Occupancy of Chorizanthe pungens var. pungens by Revised Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
Occupied at time of Size of unit in
Unit listing? Currently occupied? acres (hectares)
----------------------------------------------------------------------------------------------------------------
1. Sunset........................... Yes........................ Yes........................ 85 (35)
2. Moss Landing..................... Yes........................ Yes........................ 250 (101)
3. Marina........................... Yes........................ Yes........................ 881 (357)
4. Asilomar......................... Yes........................ Yes........................ 48 (19)
5. Freedom Blvd..................... Yes........................ Yes........................ 24 (10)
6. Manresa.......................... Yes........................ Yes........................ 94 (38)
7. Prunedale........................ Yes........................ Yes........................ 190 (77)
8. Fort Ord......................... Yes........................ Yes........................ 9,432 (3,817)
9. Soledad.......................... Yes........................ Yes........................ 51 (21)
----------------------------------------------------------------------------------------------------------------
The nine units designated as revised critical habitat are: Sunset
(Unit 1), Moss Landing (Unit 2), Marina (Unit 3), Asilomar (Unit 4),
Freedom Boulevard (Unit 5), Manresa (Unit 6), Prunedale (Unit 7), Fort
Ord (Unit 8), and Soledad (Unit 9). The approximate area encompassed
within each critical habitat unit is shown in Table 2.
[[Page 1534]]
Table 2.--Critical Habitat Units for Chorizanthe pungens var. pungens
[Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
State lands Private lands County and other Federal lands Estimate of total
-------------------------------------------- local jurisdictions ---------------------- area
Unit name ---------------------- ---------------------
Acres Hectares Acres Hectares Acres Hectares Acres Hectares Acres Hectares
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Sunset................................. 85 35 0 0 0 0 0 0 85 35
2. Moss Landing........................... 224 91 20 8 6 2 0 0 250 101
3. Marina \1\............................. 881 357 0 0 0 0 0 0 881 357
4. Asilomar............................... 40 16 0 0 4 2 4 1 48 19
5. Freedom Blvd........................... 0 0 24 10 0 0 0 0 24 10
6. Manresa................................ 94 38 0 0 0 0 0 0 94 38
7. Prunedale.............................. 155 63 17 7 18 7 0 0 190 77
8. Fort Ord \1\........................... 606 245 0 0 654 265 8,172 3,307 9,432 3,817
9. Soledad................................ 0 0 51 21 0 0 0 0 51 21
-------------------------------------------------------------------------------------------------------------
Approximate Total..................... 2,085 844 112 46 682 276 8,176 3,309 11,055 4,475
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Area estimates assigned to various landowner categories for the Fort Ord and Marina units (on former Fort Ord) reflect future land recipient, as
indicated by 2006 Army records.
We present descriptions of all units, and reasons why they meet the
definition of critical habitat for Chorizanthe pungens var. pungens,
below.
Unit 1: Sunset (85 ac (35 ha))
This unit consists of coastal beaches, dunes, and bluffs located
west of Watsonville in southern Santa Cruz County. Unit 1 contains
space for individual and population growth, including sites for seed
dispersal and germination; provides the basic requirements for growth;
and includes soils primarily in the coastal beach, dune land, and
Baywood sand series (Soil Conservation Service 1978, pp. 13-25; 1980
(maps)) (PCE 1). This unit was occupied at the time of listing (59 FR
5499) and is currently occupied (CNDDB 2006, California Department of
Parks and Recreation (CDPR) 2006a). This unit consists exclusively of
State land (85 ac (35 ha)) and is entirely within the boundaries of
Sunset State Beach. The unit includes land from Sunset Beach Road south
to the gate on Shell Road, just north of the mouth of the Pajaro River,
and west of Shell Road, which extends the length of Sunset State Beach.
Unit 1 is essential because it supports a large population of
Chorizanthe pungens var. pungens that in some years numbers in the tens
of thousands (CNDDB 2006; CDPR 2006a). The features essential to the
conservation of the species may require special management
considerations or protection in this unit due threats from invasive,
nonnative plants, particularly European beachgrass, which forms dense
stands on coastal beaches and crowds out C. p. var. pungens, and from
recreational activities, including camping and foot traffic, which
could trample plants.
Unit 2: Moss Landing (250 ac (101 ha))
This unit consists of coastal beaches, dunes, and bluffs to the
north and south of the community of Moss Landing in northern Monterey
County. Unit 2 contains space for individual and population growth,
including sites for seed dispersal and germination; provides the basic
requirements for growth; and includes soils in the coastal beach and
dune land series (Soil Conservation Service 1978, pp. 13-25) (PCE 1).
The northern portion of this unit includes lands owned and managed by
the State (which includes portions of Zmudowski State Beach and Moss
Landing State Beach between the mouths of the Pajaro River and Elkhorn
Slough), 20 ac (8 ha) of private lands, and 6 ac (2 ha) of county
lands. The southern portion of this unit includes State lands within
Salinas River State Beach. This unit was occupied at the time of
listing (59 FR 5499) and was included in the previous critical habitat
designation. Herbarium records indicate that this site was occupied as
early as 1933, and has remained occupied through time (Consortium of
California Herbaria 2006 cites collections by H.S. Tates 1936; T. Craig
1933; and J. Thomas 1950). Chorizanthe pungens var. pungens was also
recently observed in this unit (CDPR 2006b, unpaginated). This unit
contains one of only five populations found along the coast, and it may
provide connectivity between the Sunset Unit to the north and the
Marina Unit to the south. The features essential to the conservation of
the species may require special management considerations or protection
in this unit due threats from invasive, nonnative plants, particularly
ice-plant, which forms dense ground cover on coastal beaches and crowds
out C. p. var. pungens, and from recreational activities including foot
traffic, which could trample plants.
Unit 3: Marina (881 ac (357 ha))
This unit consists of coastal beaches, dunes, and bluffs ranging
from just south of the mouth of the Salinas River, south to the city of
Monterey in northern Monterey County; these lands are entirely west of
Highway 1. Unit 3 contains space for individual and population growth,
including sites for seed dispersal and germination; provides the basic
requirements for growth; and includes soils in the coastal beach, dune
land, and Oceano loamy sand soil series (Soil Conservation Service
1978, pp. 13-25, 54-55) (PCE 1). This unit was occupied at the time of
listing (59 FR 5499) and it is currently occupied (CNDDB 2006; CDPR
2006; Service 2002, p. 54). Unit 3 is comprised of State lands,
including Marina State Beach and Monterey State Beach. This unit is
essential because it supports a population of Chorizanthe pungens var.
pungens that numbers in the thousands in some years (CNDDB 2006;
Service 1998, p. 67); it is the southernmost of the Monterey Bay area
coastal populations; and it may provide connectivity between the
populations along the coast and the more interior populations found at
former Fort Ord. The features essential to the conservation of the
species may require special management considerations or protection in
this unit due to threats from invasive, nonnative plants, particularly
ice-plant, which forms dense ground cover on coastal beaches and crowds
out C. p. var. pungens;
[[Page 1535]]
recreational activities such as foot traffic, which could result in the
trampling of plants; and edge effects of urban development.
Unit 4: Asilomar (48 ac (19 ha))
This unit consists of coastal dunes and bluffs near the communities
of Pacific Grove and Pebble Beach on the Monterey Peninsula in northern
Monterey County. This unit includes a portion of Asilomar State Beach,
and extends just beyond Lighthouse Avenue to the north and terminates
at the boundary of the Asilomar Conference Grounds. This unit's eastern
boundary extends from Highway 68 north along Asilomar Avenue, and then
turns west on Arena Avenue where the boundary connects to Sunset Drive.
Unit 4 contains space for individual and population growth, including
sites for seed dispersal and germination; provides the basic
requirements for growth; and includes soils in the coastal beach, dune
land, and Baywood sand soil series (Soil Conservation Service 1978, pp.
13-25) (PCE 1). This unit is comprised of 4 ac (1 ha) of Federal lands,
40 ac (16 ha) of State lands at Asilomar State Beach, and 4 ac (2 ha)
of local government ownership. This unit was occupied at the time of
listing (59 FR 5499) and is currently occupied. Herbarium records that
contain specimens from this area include the following (collector and
year): Lemmon 1881, L.C. Wheeler 1936, R. Hoover 1941 and 1963, and
L.S. Rose 1963 (Consortium of California Herbaria 2006)). This unit
currently supports a population of Chorizanthe pungens var. pungens
that numbers in the hundreds (Moss 2000, unpaginated). This unit is
essential because it is the southernmost of only five populations of C.
p. var. pungens along the coast. Preserving the genetic characteristics
that have allowed individuals at this site to survive at the southern
end of the species' range along the coast is essential to the long-term
survival and conservation of C. p. var. pungens. Protecting peripheral
or isolated populations is necessary because they may contain genetic
variation not found in core populations. The genetic variation results
from the effects of population isolation and adaptation to locally
distinct environments (Lesica and Allendorf 1995, pp. 754-757; Fraser
2000, pp. 49-51; Hamrick and Godt 1996, pp. 291-295). The features
essential to the conservation of the species may require special
management considerations or protection in this unit due to threats
from invasive, nonnative plants, particularly ice-plant, which forms
dense ground cover on coastal beaches and crowds out C. p. var.
pungens; recreational activities such as foot traffic which could
trample plants; and edge effects of urban development. An additional
threat in this unit is the expansion of unregulated vehicle parking in
the dunes associated with the high numbers of visitors this area
receives each year.
Unit 5: Freedom Boulevard (24 ac (10 ha))
This unit consists of grassland, maritime chaparral, and oak
woodland habitat near the western terminus of Freedom Boulevard and
northeast of Highway 1 in Santa Cruz County. This unit consists
entirely of private lands (24 ac (10 ha)). Unit 5 contains space for
individual and population growth, including sites for seed dispersal
and germination; provides for the basic requirements for growth; and
includes soils in the Baywood sand and Ben Lomond sandy loam series
(Soil Conservation Service 1980, pp. 64-65; maps) (PCE 1). This unit
was occupied at the time of listing (59 FR 5499) and is currently
occupied (CNDDB 2006, element occurrences (EOs) 32 and 34; Morgan 2006,
unpaginated). This unit currently supports a population of Chorizanthe
pungens var. pungens that numbers in the thousands in favorable years,
but many fewer in unfavorable years (CNDDB 2006, EOs 32, 34). This unit
is essential because it is the northernmost known occurrence. In the
absence of genetic data, protecting populations at the boundaries of a
taxon's range is necessary because they may contain genetic variation
not found in core populations. The genetic variation results from the
effects of population isolation and adaptation to locally distinct
environments (Lesica and Allendorf 1995, pp. 754-757; Fraser 2000, pp.
49-51; Hamrick and Godt 1996, pp. 291-295). The features essential to
the conservation of the species may require special management
considerations or protection in this unit due to threats from invasive,
nonnative plants, particularly annual grasses that crowd out C. p. var.
pungens, and from edge effects of urban development.
Unit 6: Manresa (94 ac (38 ha))
This unit consists of coastal bluffs along the immediate coast,
south of Seacliff State Beach and north of Sunset State Beach in Santa
Cruz County. Unit 6 contains space for individual and population
growth, including sites for seed dispersal and germination; provides
the basic requirements for growth; and includes soils in the coastal
beach, Baywood sand, and Elder sandy loam series (Soil Conservation
Service 1980, pp. 11-70, maps) (PCE 1). This unit is comprised entirely
of lands owned and managed by the State at Manresa State Beach. This
unit was occupied at the time of listing (59 FR 5499) and is currently
occupied. This unit is essential because it is the most northerly
population that is known from the immediate coast and provides
connectivity to populations in the Sunset Unit to the south. The
features essential to the conservation of the species may require
special management considerations or protection in this unit due to
threats from invasive, nonnative plants and from recreational
activities such as foot traffic, which could trample plants.
Unit 7: Prunedale (190 ac (77 ha))
This unit consists of grassland, maritime chaparral, and oak
woodland in the area around Prunedale in northern Monterey County. On
the west side of Highway 101, the unit includes the Manzanita County
Park subunit located between Castroville Boulevard and San Miguel
Canyon Road. On the east side of Highway 101, the unit consists of four
additional subunits. The five subunits support similar plant
communities and need similar types of special management; therefore, we
discuss them as a unit. Unit 7 contains space for individual and
population growth, including sites for seed dispersal and germination;
provides the basic requirements for growth; and includes soils in the
Arnold loamy sand, Santa Ynez fine sandy loam, and Arnold-Santa Ynez
complex series (Soil Conservation Service 1978, pp. 9-11, 72-73) (PCE
1). This unit consists of 155 ac (63 ha) of State lands, 18 ac (7 ac)
of local agency lands (Manzanita County Park), and 17 ac (7 ha) of
Pacific Gas and Electric easement lands. This unit was occupied at the
time of listing, was included in our listing rule in reference to the
Prunedale area (59 FR 5499), and is currently occupied (Caltrans 2001;
Consortium of California Herbaria 2006). This unit is essential because
it is one of only four units that are known to support populations in
maritime chaparral and oak woodland habitats more representative of
hotter, interior sites and is the easternmost of the units in the
interior hills. The features essential to the conservation of the
species may require special management considerations or protections in
this unit due to threats from invasive, nonnative plants, which crowd
out Chorizanthe pungens var. pungens; edge effects from urban
development; and recreational activities
[[Page 1536]]
such as off road vehicles, which can crush plants and destroy seeds.
Unit 8: Fort Ord (9,432 ac (3,817 ha))
This unit consists of grassland, maritime chaparral, coastal scrub,
and oak woodland on the former Department of Defense base at Fort Ord,
east of the city of Seaside in northern Monterey County. This unit is
entirely within the area formerly known as Fort Ord, bounded by Highway
1 on the northwest, the Salinas River to the east, and Monterey-Salinas
Road (Highway 68) on the south. Approximately 87 percent of this
critical habitat unit is Federal land (8,172 ac (3,307 ha)) managed by
BLM and the Army, 6 percent is State land (606 ac (245 ha)), and 7
percent is under local jurisdictions (654 ac (265 ha)). Portions of
Fort Ord have been transferred to BLM; University of California,
California State University at Monterey Bay; and local (city and
county) jurisdictions. All of the lands included in this unit are
designated as current or future habitat reserves under the Army's
habitat management plan (Corps 1997, Attachment A map; Zander
Associates 2002, Figures 4-6). About one-half of Unit 8 still must be
cleaned of environmental contaminants by the Army before it can be
transferred to BLM.
Unit 8 contains space for individual and population growth,
including sites for seed dispersal and germination; provides the basic
requirements for growth; and includes soils in the Arnold-Santa Ynez
complex, Baywood sand, and Oceano loamy sand series (Soil Conservation
Service 1978, pp. 9-73). Lands in this unit are intended to be managed
at a landscape scale, using prescribed fire, as needed, to maintain a
range of different-aged maritime chaparral stands (Corps 1997, pp.
4.24-4.25), and by doing so preserve substantial populations of rare
maritime chaparral species in the Monterey Bay area. This unit was
occupied at the time of listing (59 FR 5499) and is currently occupied.
This unit is essential because it currently supports multiple large
populations of Chorizanthe pungens var. pungens that number in the tens
of thousands in some years (CNDDB 2006, EO 2; Jones and Stokes 1992,
Figure F-3; BLM 2006), and it is one of only five units that include
maritime chaparral and oak woodland habitats more representative of
hotter, interior sites. The features essential to the conservation of
the species may require special management considerations or protection
in this unit due to threats from invasive species that crowd out C. p.
var. pungens, munitions clean-up methods on former ranges that remove
and chip all standing vegetation, and recreational activities and road
and trail maintenance that could trample plants.
Unit 9: Soledad (51 ac (21 ha))
This unit consists of an interior dune in the floodplain of the
Salinas River channel just south of the city of Soledad in central
Monterey County on privately owned lands. Unit 9 contains space for
individual and population growth, including sites for seed dispersal
and germination; provides the basic requirements for growth; and
includes soils in the dune land and Metz complex soil series (Soil
Conservation Service 1978, pp. 24, 48-49) (PCE 1). This unit was
occupied at the time of listing (59 FR 5499) and is currently occupied.
Approximately 5,000 plants were observed in this unit in 1994 (CNDDB
2006, EO 28; Wesco 1994, pp. 5-8). This unit is essential because it is
the southernmost interior location that supports a population and the
only unit where Chorizanthe pungens var. pungens grows in interior
floodplain dune habitat. This population is geographically remote from
all others in this revised critical habitat designation. Protecting
peripheral or isolated populations of rare species is highly desirable
because they may contain genetic variation not found in core
populations (Lesica and Allendorf 1995, pp. 755-757). The features
essential to the conservation of the species may require special
management considerations or protection in this unit due to threats
from invasive, nonnative plants, which crowd out C. p. var. pungens;
overspray of herbicides and pesticides from agricultural operations;
and vegetation clearing activities associated with road maintenance.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5th and 9th Circuit Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the 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. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' 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,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has
[[Page 1537]]
retained discretionary involvement or control over the action (or the
agency's discretionary involvement or control is authorized by law).
Consequently, Federal agencies may sometimes need to request
reinitiation of consultation with us on actions for which formal
consultation has been completed, if those actions with discretionary
involvement or control may affect subsequently listed species or
designated critical habitat.
Federal activities that may affect Chorizanthe pungens var. pungens
or its designated critical habitat require section 7 consultation under
the Act. Activities on State, Tribal, local, or private lands requiring
a Federal permit (such as a permit from the U.S. Army Corps of
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et
seq.) or a permit from us under section 10(a)(1)(B) of the Act) or
involving some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are subject to the section 7 consultation
process. Federal actions not affecting listed species or critical
habitat, and actions on State, Tribal, local, or private lands that are
not federally funded, authorized, or permitted, do not require section
7 consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the essential features to be functionally established. Activities
that may destroy or adversely modify critical habitat are those that
alter the essential physical and biological features to an extent that
appreciably reduces the conservation value of critical habitat for
Chorizanthe pungens var. pungens. Generally, the conservation role of
C. p. var. pungens critical habitat units is to support viable core
area populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for Chorizanthe pungens var. pungens include, but are
not limited to:
(1) Actions that would degrade or destroy native maritime
chaparral, dune, and oak woodland communities, including, but not
limited to, livestock grazing, clearing, discing, introducing or
encouraging the spread of nonnative plants, and heavy recreational use;
and
(2) Actions that would appreciably diminish habitat value or
quality through indirect effects (e.g., edge effects, invasion of
nonnative plants or animals, or fragmentation).
Exemptions and Exclusions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resource management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
A statement of goals and priorities;
A detailed description of management actions to be
implemented to provide for these ecological needs; and
A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
Lands at former Fort Ord are not discussed in this section because
Fort Ord is no longer an active military installation. All but a few
hundred acres at former Fort Ord are to be eventually transferred to
non-military entities. The few hundred acres that the Army may retain
do not occur within this critical habitat designation. There are no
Department of Defense lands with a completed INRMP within this final
revised critical habitat designation. Therefore, there are no lands
exempted from this revised designation under section 4(a)(3) of the
Act.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the legislative history is clear that the Secretary is
afforded broad discretion regarding which factor(s) to use and how much
weight to give to any factor.
Under section 4(b)(2) of the Act, in considering whether to exclude
a particular area from the designation, we must identify the benefits
of including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If based on
this analysis, we make this determination, then we can exclude the area
only if such exclusion would not result in the extinction of the
species.
Under section 4(b)(2) of the Act, we must consider the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. We consider a
number of factors in a section 4(b)(2) analysis. For example, we
consider whether there are lands owned or managed by the Department of
Defense (DOD) where a national security impact might exist. We also
consider whether the landowners have developed any conservation plans
for the area, or whether there are conservation partnerships that would
be encouraged by designation of, or exclusion from, critical habitat.
In addition, we look at
[[Page 1538]]
any Tribal issues, and consider the government-to-government
relationship of the United States with tribal entities. We also
consider the economic impacts, environmental impacts, and any social
impacts that might occur because of the designation.
In preparing this final rule, we have determined that while lands
proposed for revised designation of critical habitat for Chorizanthe
pungens var. pungens are currently administered by the Department of
Defense, all of the lands will be transferred to other landowners. The
proposed revised designation did not include any military lands covered
by an existing INRMP, any lands covered by a completed HCP for C. p.
var. pungens, or any Tribal lands or trust resources. Therefore, we do
not anticipate any impact to national security, Tribal lands, or
habitat conservation plans from this critical habitat designation.
Based on the best available information, we believe that all of the
units contain the physical and biological features essential to
Chorizanthe pungens var. pungens. In addition, as discussed below under
the ``Economic Analysis'' section, our economic analysis indicates an
overall low economic cost resulting from the revised designation. We
have not identified any area for which the benefits of exclusion
outweigh the benefits of inclusion; therefore, we have considered
excluding, but have not excluded any areas from this revised
designation of critical habitat for C. p. var. pungens based on
economic impacts or other relevant factors.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available and
to consider the economic and other relevant impacts of designating a
particular area as critical habitat. The Secretary may exclude areas
from critical habitat for economic reasons if the Secretary determines
that the benefits of such exclusion exceed the benefits of designating
the area as critical habitat. However, this exclusion cannot occur if
it will result in the extinction of the species concerned.
Following the publication of the proposed revised critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the revised designation. The draft
economic analysis was made available for public review on October 16,
2007 (72 FR 58618). We accepted comments on the draft economic analysis
until October 31, 2007.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for Chorizanthe pungens var. pungens. This information is
intended to assist the Secretary in making decisions about whether the
benefits of excluding particular areas from the designation outweigh
the benefits of including those areas in the designation. This economic
analysis considers the economic efficiency effects that may result from
the designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
The draft economic analysis estimates pre-designation costs
associated with the conservation of the species since the time of
listing in 1994 to be approximately $5.2 million (undiscounted).
Discounted costs are estimated to be approximately $6.2 million at a 3
percent discount rate or approximately $7.9 million at a 7 percent
discount rate. The draft economic analysis estimates post-designation
costs associated with conservation efforts for Chorizanthe pungens var.
pungens to be approximately $17 million (undiscounted) over a 20-year
period as a result of the proposed designation of revised critical
habitat, including those costs coextensive with listing and recovery.
Discounted future costs are estimated to be approximately $13 million
($0.85 million annualized) at a 3 percent discount rate or
approximately $9.6 million ($0.85 million annualized) at a 7 percent
discount rate.
The majority of the estimated costs are associated with management
activities designed to preserve and enhance habitat for Chorizanthe
pungens var. pungens on lands managed by the California Department of
Parks and Recreation, Department of the Army, University of California,
and the Bureau of Land Management. The economic analysis considers the
potential economic effects of actions relating to the conservation of
Chorizanthe pungens var. pungens, including costs associated with
sections 4, 7, and 10 of the Act, and including those attributable to
designating critical habitat. It further considers the economic effects
of protective measures taken as a result of other Federal, State, and
local laws that aid habitat conservation for Chorizanthe pungens var.
pungens in areas containing the features essential to the conservation
of the species. The analysis considers both economic efficiency and
distributional effects. In the case of habitat conservation, efficiency
effects generally reflect the ``opportunity costs'' associated with the
commitment of resources to comply with habitat protection measures
(such as lost economic opportunities associated with restrictions on
land use).
The analysis also addresses how potential economic impacts are
likely to be distributed, including an assessment of any local or
regional impacts of habitat conservation and the potential effects of
conservation activities on small entities and the energy industry. This
information can be used by decision-makers to assess whether the
effects of the revised designation might unduly burden a particular
group or economic sector. Finally, this analysis looks retrospectively
at costs that have been incurred since the date Chorizanthe pungens
var. pungens was listed as threatened (February 4, 1994; 59 FR 5499),
and considers those costs that may occur in the 20 years following a
designation of revised critical habitat. We evaluated the potential
economic impact of this revised designation as identified in the
analysis. Based on this evaluation, we believe that there are no
disproportionate economic impacts that warrant exclusion under section
4(b)(2) of the Act at this time.
The Service also completed a final economic analysis of the
proposed revised designation that updates the draft economic analysis
by removing impacts that were not considered probable or likely to
occur and by adding an estimate of the costs associated solely with the
revised designation of critical habitat for Chorizanthe pungens var.
pungens (incremental impacts). The final economic analysis estimates
that the potential economic effects of actions relating to the
conservation of C. p. var.
[[Page 1539]]
pungens, including costs associated with sections 4, 7, and 10 of the
Act, and including those attributable to the designation of revised
critical habitat will be $17 million (undiscounted) over the next 20
years. The present value of these impacts, applying a 3 percent
discount rate, is $13 million ($0.85 million annualized); or $9.6
million ($0.85 million annualized), using a discount rate of 7 percent.
These cost estimates are the same as those estimated in the draft
economic analysis. The final economic analysis also estimates that
there are no anticipated costs attributable solely to the designation
of revised critical habitat for C. p. var. pungens (incremental costs).
All impacts quantified in the economic analysis are forecast to occur
regardless of the revised critical habitat designation for C. p. var.
pungens.
A copy of the final economic analysis with supporting documents may
be obtained by contacting U.S. Fish and Wildlife Service, Ventura Fish
and Wildlife Office (see ADDRESSES or download from the Internet at
http://www.fws.gov/ventura).
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866 (E.O. 12866), we evaluate
four parameters in determining whether a rule is significant. The four
parameters that would result in a designation of significant under E.O.
12866 are:
(a) The rule would have an annual economic effect of $100 million
or more or adversely affect an economic sector, productivity, jobs, the
environment, or other units of the government.
(b) The rule would create inconsistencies with other Federal
agencies' actions.
(c) The rule would materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
(d) The rule would raise novel legal or policy issues.
If the Office of Management and Budget (OMB) requests to review a
rule designating critical habitat for a species, we designate the rule
as significant because it may raise novel legal and policy issues. We
then use the DEA of the proposed designation of critical habitat to
evaluate the potential effects related to the other provisions of E.O.
12866 and make a determination as to whether the regulation may be
significant for any of these other provisions.
In accordance with E.O. 12866, this document is not a significant
rule since OMB did not request to review this rule. On the basis of our
economic analysis of the revised critical habitat for this species, we
have determined that the revised final designation of critical habitat
for this species will not have an annual effect on the economy of $100
million or more or to affect the economy in a material way. We used
this analysis to meet the requirement of section 4(b)(2) of the Act to
determine the economic consequences of designating the specific area as
critical habitat. We also used it to help determine whether to exclude
any area from critical habitat, as provided for under section 4(b)(2)
of the Act. Due to the tight timeline for publication in the Federal
Register, the Office of Management and Budget (OMB) has not formally
reviewed this rule.
The designation of revised critical habitat for Chorizanthe pungens
var. pungens will not create inconsistencies with other agencies''
actions because no other Federal agencies designate critical habitat.
Based on previous critical habitat designations and the economic
analysis, we do not believe this rule will materially affect
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients; however, we will continue to review
this action for such impacts.
Further, E.O. 12866 directs Federal agencies promulgating
regulations to evaluate regulatory alternatives (OMB Circular A-4,
September 17, 2003). Under Circular A-4, once an agency determines that
the Federal regulatory action is appropriate, the agency must consider
alternative regulatory approaches. Because the determination of
critical habitat is a statutory requirement under the Act, we must
evaluate alternative regulatory approaches, where feasible, when
promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts under section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or a combination of both, constitutes
our regulatory alternative analysis for designations. Based on this
evaluation, we believe that there are no disproportionate economic
impacts that warrant exclusion under section 4(b)(2) of the Act at this
time.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must 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 (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 RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. 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 could significantly 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). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate.
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However, the SBREFA does not explicitly define ``substantial number''
or ``significant economic impact.'' Consequently, to assess whether a
``substantial number'' of small entities is affected by this
designation, this analysis considers the relative number of small
entities likely to be impacted in an area. In some circumstances,
especially with critical habitat designations of limited extent, we may
aggregate across all industries and consider whether the total number
of small entities affected is substantial. In estimating the number of
small entities potentially affected, we also consider whether their
activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7(a)(2) of the Act on activities they fund, permit, or implement that
may affect Chorizanthe pungens var. pungens. Federal agencies also must
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities.
To determine if the revised designation of critical habitat for
Chorizanthe pungens var. pungens would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities (e.g., residential and
commercial development). We considered each industry or category
individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
In our draft economic analysis of the proposed revised critical
habitat designation, we evaluated the potential economic effects on
small business entities resulting from conservation actions related to
the listing of Chorizanthe pungens var. pungens and proposed
designation of revised critical habitat. We determined from our draft
analysis that the small business entities that could potentially be
affected include one city government (City of Pacific Grove), and one
private farm. However, costs were not associated with the City of
Pacific Grove or the private farm because they are not currently
required to undertake actions to conserve the species and there is a
low likelihood that their actions will involve a federal nexus in the
future. A third entity, the Fort Ord Reuse Authority (FORA), was
created by the State legislature in 1994, to oversee the civilian reuse
and redevelopment of former Fort Ord. It sunsets in 2014, after which
lands that it may have been managing on former Fort Ord may be jointly
managed by multiple local governments. The Habitat Conservation Plan
(HCP) currently being developed that will define the future
distribution and management of former Fort Ord lands has not been
completed. Therefore, for the purpose of the draft and final economic
analysis, FORA was not classified as a small entity. Based on our
economic analysis, we certify that the rule will not have a significant
economic impact on a substantial number of small entities.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et
seq.)
Under SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis for a
discussion of the effects of this determination (see ADDRESSES for
information on obtaining a copy of the final economic analysis).
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
One critical habitat unit (Prunedale, Unit 7) contains 17 ac (7 ha) of
land held in a conservation easement owned by Pacific Gas and Electric
Company. Pacific Gas and Electric Company maintains power lines that
cross this unit; however, because the company does not plan to develop
this land any further, the designation of revised critical habitat is
not expected to have an adverse effect on energy production. This final
rule to designate revised critical habitat for Chorizanthe pungens var.
pungens is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, Tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal
[[Page 1541]]
funding, assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) As discussed in the draft economic analysis of the proposed
designation of revised critical habitat for Chorizanthe pungens var.
pungens and the ``Regulatory Flexibility Act'' section above, there is
expected to be no impact on small governments or small entities. There
is no record of consultations between the Service and any of these
governments since C. p. var. pungens was listed as threatened on
February 4, 1994 (59 FR 5499). It is likely that small governments
involved with developments and infrastructure projects would be
interested parties or involved with projects involving consultations
under section 7 of the Act for C. p. var. pungens within their
jurisdictional areas. As identified in the draft economic analysis, any
costs associated with this activity are likely to represent a small
portion of a local government's budget. Costs were not associated with
the City of Pacific Grove because it is not currently required to
undertake actions to conserve the species and there is a low likelihood
that their actions will involve a federal nexus in the future.
Consequently, we do not believe that the designation of revised
critical habitat for C. p. var. pungens will significantly or uniquely
affect these small governmental entities because it will not produce a
Federal mandate of $100 million or greater in any year; that is, it is
not a ``significant regulatory action'' under the Unfunded Mandates
Reform Act. The designation of revised critical habitat imposes no
obligations on State or local governments. As such, a Small Government
Agency Plan is not required.
Takings
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
revised critical habitat for Chorizanthe pungens var. pungens in a
takings implications assessment. Critical habitat designation does not
affect landowner actions that do not require Federal funding or
permits, nor does it preclude development of habitat conservation
programs or issuance of incidental take permits to permit actions that
do require Federal funding or permits to go forward. The takings
implications assessment concludes that this designation of revised
critical habitat for C. p. var. pungens does not pose significant
takings implications for lands within or affected by the designation.
Federalism
In accordance with E.O. 13132 (Federalism), the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this final revised critical habitat designation with
appropriate State resource agencies in California. However, we did not
receive any comments from these State agencies. The designation of
revised critical habitat in areas currently occupied by Chorizanthe
pungens var. pungens may impose nominal additional regulatory
restrictions to those currently in place and, therefore, may have a
slight incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
because the areas that contain the physical and biological features
essential to the conservation of the species are more clearly defined,
and the primary constituent element of the habitat necessary to the
conservation of the species is specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist these local governments in
long-range planning (rather than having them wait for case-by-case
section 7 consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We are designating revised critical habitat in
accordance with the provisions of the Act. This revised final rule uses
standard property descriptions and identifies the primary constituent
element within the designated areas to assist the public in
understanding the habitat needs of Chorizanthe pungens var. pungens.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et
seq.) in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This assertion was
upheld by the Circuit Court of the United States for the Ninth Circuit
Court (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995),
cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that there are no
Tribal lands occupied at the time of listing or currently occupied that
contain the physical and biological features essential for the
conservation,
[[Page 1542]]
and no Tribal lands that are unoccupied areas essential for the
conservation of Chorizanthe pungens var. pungens. Therefore, revised
critical habitat for C. p. var. pungens has not been designated on
Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Venture Fish and
Wildlife Office (see ADDRESSES).
Author(s)
The primary author of this rulemaking is the staff of the Ventura
Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.96(a), revise the entry for ``Family Polygonaceae:
Chorizanthe pungens var. pungens (Monterey spineflower)'' to read as
follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Polygonaceae: Chorizanthe pungens var. pungens (Monterey
spineflower)
(1) Critical habitat units are depicted for Santa Cruz and Monterey
Counties, California, on the maps below.
(2) The primary constituent element of critical habitat for
Chorizanthe pungens var. pungens is a vegetation structure arranged in
a mosaic with openings between the dominant elements (e.g., scrub,
shrub, oak trees, or clumps of herbaceous vegetation) that changes in
spatial position as a result of physical processes such as windblown
sands and fire and that allows sunlight to reach the surface of the
following sandy soils: coastal beaches, dune land, Baywood sand, Ben
Lomond sandy loam, Elder sandy loam, Oceano loamy sand, Arnold loamy
sand, Santa Ynez fine sandy loam, Arnold--Santa Ynez complex, Metz
complex, and Metz loamy sand.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, airports, and roads) and the land on which such
structures are located, existing within the legal boundaries on the
effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created on base maps using aerial imagery from the National
Agricultural Imagery Program (aerial imagery captured June 2005). Data
were projected to Universal Transverse Mercator (UTM) zone 11, North
American Datum (NAD) 1983.
(5) Note: Index map (Map 1) follows:
BILLING CODE 4310-55-P
[[Page 1543]]