[Federal Register: October 17, 2008 (Volume 73, Number 202)]
[Rules and Regulations]
[Page 61935-62002]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17oc08-15]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami
parvus); Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2007-0008; 92210-1117-0000-FY08 B4]
RIN 1018-AV07
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys
merriami parvus)
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 final revised critical habitat for the San Bernardino
kangaroo rat (Dipodomys merriami parvus) under the Endangered Species
Act of 1973, as amended (Act). Approximately 7,779 acres (ac) (3,148
hectares (ha)) of habitat in San Bernardino and Riverside Counties,
California, are being designated as critical habitat for the San
Bernardino kangaroo rat. This final revised designation constitutes a
reduction of approximately 25,516 ac (10,326 ha) from the 2002
designation of critical habitat for the San Bernardino kangaroo rat.
DATES: This rule becomes effective on November 17, 2008.
ADDRESSES: The final rule, final economic analysis, and map of critical
habitat will be available on the Internet at http://www.regulations.gov
and http://www.fws.gov/carlsbad/. Supporting documentation we used in
preparing this final rule will be available for public inspection, by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-
5901.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see
ADDRESSES section). 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 critical habitat for the San Bernardino kangaroo rat
in this final rule. For more information on the taxonomy, biology, and
ecology of the San Bernardino kangaroo rat, refer to the final listing
rule published in the Federal Register on September 24, 1998 (63 FR
51005), the original final critical habitat rule published in the
Federal Register on April 23, 2002 (67 FR 19812), the proposed rule to
revise critical habitat published in the Federal Register on June 19,
2007 (72 FR 33808), and the April 16, 2008, notice of availability of
the draft economic analysis (DEA) and changes to the proposed rule (73
FR 20581).
Subspecies Description, Life History, Distribution, Ecology, and
Habitat
No new substantial information pertaining to the subspecies
description, life history, distribution, ecology, or habitat of the San
Bernardino kangaroo rat was received following the 2007 proposed rule
to revise critical habitat for this subspecies. Therefore, please refer
to the final listing rule published in the Federal Register on
September 24, 1998 (63 FR 51005), and the proposed rule to revise
critical habitat published in the Federal Register on June 19, 2007 (72
FR 33808), for a discussion of the subspecies' description, life
history, distribution, ecology, and habitat.
Previous Federal Actions
As discussed in the proposed rule to revise critical habitat for
this subspecies, the Service agreed, as part of a settlement agreement,
to submit to the Federal Register a proposal to revise critical
habitat, if prudent, on or before June 1, 2007, and a final rule by
June 1, 2008, which was later extended to October 1, 2008. We published
a proposed rule to revise critical habitat in the Federal Register on
June 19, 2007 (72 FR 33808), and announced the first public comment
period on the proposed rule. On December 11, 2007 (72 FR 70284), we
opened a second public comment period on the proposed rule and
announced our intention to hold two public hearings on the proposed
rule that were held in San Bernardino, California, on January 10, 2008.
On April 16, 2008, we published in the Federal Register a notice of
availability (NOA) announcing the availability of the DEA (dated
February 6, 2008), opening the third public comment period on the
proposed rule to revise critical habitat, and announcing changes to the
proposed rule (73 FR 20581). In addition, on July 29, 2008, we
published in the Federal Register an NOA announcing the availability of
an Addendum to the Economic Analysis, opening a fourth public comment
period (73 FR 43910). This final rule completes our obligations under
the March 23, 2006, settlement agreement regarding the subject
subspecies. For a discussion of additional information on previous
Federal actions concerning the San Bernardino kangaroo rat, refer to
the final listing rule published in the Federal Register on September
24, 1998 (63 FR 51005), and the final designation of critical habitat
published in the Federal Register on April 23, 2002 (67 FR 19812).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed rule
to revise critical habitat for the San Bernardino kangaroo rat during
four comment periods. The first comment period opened June 19, 2007 (72
FR 33808), associated with the publication of the proposed rule, and
closed August 20, 2007. We received one request for a public hearing
during this comment period. The second comment period opened December
11, 2007 (72 FR 70284), associated with the publication of a notice of
public hearings that were held January 10, 2008, and closed January 25,
2008. The third comment period opened April 16, 2008 (73 FR 20581),
associated with the notice of availability of the DEA, and closed May
16, 2008. The fourth comment period opened July 29, 2008 (73 FR 43910),
associated with the availability of an addendum to the economic
analysis, and closed August 13, 2008. During these four public comment
periods, we contacted appropriate Federal, State, and local agencies;
scientific organizations; and other interested parties and invited them
to comment on the proposed rule to revise critical habitat for this
subspecies and the associated DEA.
During the first comment period, we received 12 public comments
directly addressing the proposed revision of critical habitat: 1 from a
Federal agency, 1 from a local government, 9 from organizations, and 1
from an individual. During the second comment period and the January
10, 2008, public hearings, we received 29 comments directly addressing
the proposed revision of critical habitat for this subspecies: 4 from
local governments, 6 from organizations, and 19 from individuals.
During the third comment period, we received 3 comments directly
addressing the proposed revision of critical habitat for this
subspecies and/or the DEA: 1 from a Federal agency and 2 from
organizations. During the fourth comment period, we received 5 comments
directly addressing the proposed revision of critical habitat for
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the San Bernardino kangaroo rat and/or the DEA: 3 from organizations,
and 2 from individuals.
Peer Review
In accordance with our policy on peer review in Act (16 U.S.C. 1531
et seq.) activities, published on July 1, 1994 (59 FR 34270), we
solicited expert opinions from five knowledgeable individuals with
scientific expertise that included familiarity with the subspecies, the
geographic region in which it occurs, and conservation biology
principles. We received responses from two of the peer reviewers. The
peer reviewers generally concurred with our methods and conclusions and
indicated that the Service did a thorough job of delineating critical
habitat using the best available scientific information.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding the
designation of critical habitat for the San Bernardino kangaroo rat.
All public comments are addressed in the following summary and
incorporated into the final rule as appropriate.
Peer Reviewer Comments
Comment 1: One peer reviewer commented that in the 2007 proposed
rule to revise critical habitat, the Service's non-inclusion of areas
designated as critical habitat in 2002 was not supported in the
document with empirical data or some type of population viability
modeling.
Our Response: Our revised critical habitat designation is
substantially smaller than the 2002 critical habitat designation. Given
the new information that became available to us in the five years since
the previous designation, we find that we erroneously designated some
areas. Areas previously designated in 2002 but not designated in this
revised rule do not meet the definition of critical habitat. The
changes in this rule are due to several factors. Better biological
information allowed us to more specifically define primary constituent
elements (PCEs) for this species, and site visits in December 2006 and
January 2007 allowed us to more precisely define the areas that meet
the definition of critical habitat on the ground. This allowed us to
remove areas that do not meet our criteria for identifying the physical
or biological features that are essential to the conservation of the
species. The 2002 critical habitat designation included areas in which
few occurrences were recorded. Such areas of low-density occupation or
sporadic occupancy were removed from the proposed revised designation
because they do not support core populations (i.e., areas where the
subspecies has been repeatedly detected through live trapping).
Finally, we employed refined mapping techniques in the current revision
to more precisely map areas that contain PCEs. This more refined
approach allowed us to remove areas that do not meet the definition of
critical habitat. See the ``Summary of Changes From the 2002 Critical
Habitat Designation'' and ``Criteria Used To Identify Critical
Habitat'' sections of this final rule for more information.
We based the proposed revision of critical habitat for the San
Bernardino kangaroo rat on the best available scientific and commercial
data including peer-reviewed published literature, gray literature
(non-published or non-peer-reviewed survey or research reports), survey
information, Geographic Information System coverage data, and site
visits with subspecies experts. We delineated proposed critical habitat
using criteria based on the biological needs of the subspecies
according to the best available science. Application of these criteria
(see ``Criteria Used To Identify Critical Habitat'' section of this
final rule) results in the determination of the physical and biological
features that are essential to the conservation of this subspecies, as
identified by the PCEs in the appropriate quantity and spatial
arrangement essential to the conservation of the subspecies. The areas
proposed as critical habitat: (1) Support core populations that are
considered necessary for conservation of the subspecies including areas
demographically disconnected from the largest populations, but which
may be important for the long-term conservation of the subspecies; and
(2) include non-degraded alluvial fans, washes, floodplains, and
adjacent upland areas with appropriate soils and vegetation. At this
time, a population viability analysis has not been completed for the
San Bernardino kangaroo rat. When delineating critical habitat for the
San Bernardino kangaroo rat, we used the best available scientific
information to determine those areas containing the features essential
to its conservation.
Comment 2: One peer reviewer commented on the reduction of critical
habitat from what was designated in 2002. The peer reviewer stated that
the 2007 proposed rule to revise critical habitat explains that this
reduction is a result of additional knowledge about specific habitat
requirements and occurrence data. The peer reviewer further questioned
if the 2002 critical habitat designation was too superficial as a
result of being rushed, or if the 2007 proposed revision to the
critical habitat designation is overly conservative. The peer reviewer
also suggested that we provide additional rationale for not designating
areas with low population density or low habitat quality.
Our Response: The Act defines critical habitat as (1) the specific
areas within the geographical area occupied by the species at the time
it is listed on which are found those physical or biological features
(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 the species at
the time it is listed upon a determination by the Secretary that such
areas are essential for the conservation of the species. The reduction
in total area from what was designated in 2002 is primarily the result
of: (1) Exclusions of habitat under section 4(b)(2) of the Act; (2)
revision of the primary constituent elements: (3) revision of our
criteria used to identify critical habitat; and (4) removal of lands
within the geographical area occupied by the subspecies at the time it
was listed that do not contain the physical or biological features as
identified by the PCEs in the appropriate quantity and spatial
arrangement essential to the conservation of the subspecies.
In 2002, we used the best available scientific information at that
time to delineate critical habitat and do not consider the 2002
designation to be ``superficial.'' However, as acknowledged by the peer
reviewer, we have significant additional occurrence data and knowledge
about specific habitat requirements of this subspecies that was not
known when we first designated critical habitat for the San Bernardino
kangaroo rat in 2002. We utilized this data to appropriately revise the
primary constituent elements and criteria used to identify critical
habitat consistent with the statutory obligations of the Act. In
addition, since 2002, case law has developed that has helped to further
our understanding of the statutory obligations of the Act and the
definition of critical habitat (e.g., The Cape Hatteras Access
Preservation Alliance v. U.S. Dep't of the Interior, 344 F. Supp. 2d
108 (D.D.C. 2004); Home Builders Ass'n of N. Cal. v. U.S. Fish and
Wildlife Service, U.S. Dist. LEXIS 80255 (E.D. Cal. 2006); and Arizona
Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013 (D. Ariz.
2008)). Thus, we have refined our approach to this critical habitat
designation to insure compliance with the Act, including the
identification of the geographical areas occupied by the subspecies at
the time of listing, the
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identification of physical or biological features (and primary
constituent elements) essential to the conservation of the subspecies,
determination of any areas outside the geographical area occupied by
the subspecies at the time of listing that are essential for the
conservation of the subspecies, and appropriate exclusions under
section 4(b)(2) of the Act. A complete discussion of how data collected
since the 2002 designation was utilized to refine the proposed
designation can be found in the ``Summary of Changes From the 2002
Critical Habitat Designation'' and ``Summary of Changes From the 2007
Proposed Rule To Revise Critical Habitat'' sections of this final rule.
As discussed in the ``Criteria Used To Identify Critical Habitat''
section of this final rule, we delineated critical habitat for the San
Bernardino kangaroo rat using the following criteria: (1) Areas
occupied by the subspecies at the time of listing, and currently
occupied, within the historical range of the subspecies; (2) areas
retaining fluvial dynamics containing one or more of the PCEs for the
subspecies; (3) areas supporting a core population of the subspecies;
and (4) areas demographically disconnected from the largest
populations, but which may be important for the long-term recovery of
the subspecies. Application of these criteria results in the
determination of the physical and biological features that are
essential to the conservation of this subspecies, identified as the
subspecies' PCEs laid out in the appropriate quantity and spatial
arrangement. Thus, not all areas supporting the identified PCEs will
meet the definition of critical habitat. Specifically, as noted by the
commenter, some areas occupied at low densities are not included in the
final revised critical habitat designation. Areas occupied at low
densities are not likely to contribute to recovery of the subspecies,
and we do not have information suggesting that the areas in question
support core populations or information suggesting these areas would be
capable of supporting a core population in the near future.
Conservation (i.e., recovery) is defined in section 3 of the Act as
the ``use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the
measures provided pursuant to this Act are no longer necessary.'' In
accordance with section 4(a)(1) of the Act, we determine if any species
is an endangered or threatened species (or revise its listed status)
because of any of the five threat factors identified in the Act (i.e.,
(A) present or threatened destruction, modification, or curtailment of
its habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence). Therefore,
conservation, or recovery, is achieved when a five factor analysis
indicates that current and future threats have been minimized to an
extent that the species is no longer in danger of extinction or likely
to become endangered in the foreseeable future. Recovery is a dynamic
process requiring adaptive management of threats and there are many
paths to accomplishing recovery of a species. We believe that the lands
identified in this rule as meeting the definition of critical habitat
are adequate to ensure the conservation of the San Bernardino kangaroo
rat throughout its extant range based on the best available scientific
information at this time.
We recognize that some efforts that positively contribute to the
conservation of this subspecies may occur outside the boundaries of
this final designation; however, we do not believe that this
designation is ``conservative.'' Rather, our proposed designation in
combination with the NOA, which announced the addition of areas to the
proposed designation, and this final designation accurately describe
all specific areas meeting the statutory definition of critical habitat
for the San Bernardino kangaroo rat. See the ``Summary of Changes From
the 2002 Critical Habitat Designation'' and ``Summary of Changes From
the 2007 Proposed Rule To Revise Critical Habitat'' sections of this
final rule for more information.
Comment 3: One peer reviewer commented that the Service's focus on
core populations as a primary criterion for designating critical
habitat is logical and appropriate. The reviewer further commented that
while the core populations may be necessary for conservation of the San
Bernardino kangaroo rat, they may not be sufficient in area or
connectivity to achieve a reasonable probability of persistence in the
face of periodic flooding and drought. Another peer reviewer commented
that the proposed revision to critical habitat includes dispersal
corridors and habitat connectivity necessary for the subspecies.
Our Response: In this final revised designation we focused
primarily on core populations in undisturbed habitat in the Santa Ana
River, Lytle/Cajon Creeks, and the San Jacinto River washes. We believe
that protecting these three largest core populations is necessary for
the conservation of the San Bernardino kangaroo rat. In response to
this and other comments, we revised our criteria to also capture
occupied areas demographically disconnected from the three largest
populations, but which may be important for the long-term conservation
of the subspecies (for a detailed discussion see ``Criteria Used To
Identify Critical Habitat'' section of this final rule). We then re-
evaluated the proposed critical habitat boundaries and included in the
designation additional areas in Mill Creek, Plunge Creek, Cable Creek
wash, and Bautista Creek. We are not designating small, isolated areas
of degraded habitat or areas devoid of fluvial processes because such
areas likely only support unsustainable populations that would not
contribute to the recovery of the subspecies. We believe that with
these revisions, we included sufficient lowland and upland alluvial
sage scrub habitat within a sufficient number of critical habitat units
to ensure connectivity and persistence of the subspecies following
periodic flooding and drought.
Comment 4: One peer reviewer had concerns about excluding areas
from the critical habitat designation that are protected by a
management or conservation agreement, particularly because the proposed
exclusion of those areas increases the degree to which critical habitat
in all three units is fragmented. This reviewer questioned whether
proposed exclusions render the remaining critical habitat areas
sufficient for the subspecies' recovery if management actions on the
excluded areas fail to preserve their value to the subspecies. Another
peer reviewer agreed with the logic of excluding from the final revised
critical habitat designation areas that are covered by management plans
that benefit the San Bernardino kangaroo rat, but the reviewer
questioned whether monitoring would be conducted or reports would be
required ensuring compliance with these plans, or whether the plans are
having the desired effects.
Our Response: Section 4(b)(2) of the Act directs the Secretary to
designate critical habitat on the basis of the best scientific data
available and after taking into consideration the economic impacts,
national security impacts, and any other relevant impacts of specifying
any particular area as critical habitat. An area may be excluded from
critical habitat if it is determined that the benefits of exclusion
outweigh the benefits of specifying a particular area
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as critical habitat, unless the failure to designate an area as
critical habitat will result in the extinction of the species. The
Service recognizes that 80 percent of federally listed species occur
either partially or solely on private lands (Crouse et al. 2002) and we
will only achieve recovery of federally listed species with the
cooperation of private landowners. As discussed in the ``Conservation
Partnerships on Non-Federal Lands'' section below, we believe that
designation of critical habitat on private lands can negatively impact
the working relationships and conservation partnerships we have formed
with private landowners.
In making the Woolly-Star Preserve Area (WSPA) Management Plans,
the Former Norton Air Force Base Conservation Management Plan (CMP),
the Western Riverside County Multiple Species Habitat Conservation Plan
(MSHCP), and the Cajon Creek Habitat Conservation Management Area
Habitat Enhancement and Management Plan (Cajon Creek HCMA HEMP)
exclusions, we evaluated the benefits of designating non-Federal lands
that may not have a Federal nexus for consultation while considering if
our existing partnerships have, or will, result in greater conservation
benefits to the San Bernardino kangaroo rat and its habitat than would
likely result from consultation on a designation. We balanced the
benefits of inclusion against the benefits of exclusion (i.e., the
benefits of preserving partnerships and encouraging development of
additional HCPs and other conservation plans in the future). All areas
excluded under 4(b)(2) that have completed habitat conservation plans
(HCPs) or other Service-approved management plans receive long-term
protection and conservation that provides equivalent or greater
conservation benefit to the San Bernardino kangaroo rat than would
likely result from including these areas in the designation, and the
exclusion of lands covered by these plans will not jeopardize the
continued existence of the subspecies. The conservation objectives in
these plans for the San Bernardino kangaroo rat, and the implementation
status of these plans to date, are discussed in the ``Exclusions Under
Section 4(b)(2) of the Act'' section below. The conservation and
management of San Bernardino kangaroo rat habitat as described in these
management plans have reduced and will continue to remove or reduce
known threats to the subspecies and its habitat, contributing to the
survival and recovery of this subspecies. We believe the exclusions we
made in this final revised rule are legally supported under section
4(b)(2) of the Act and scientifically justified.
The exclusion of critical habitat does not dismiss or lessen the
value of these areas to the overall conservation of this subspecies.
Rather, we believe that the judicious exclusion of specific areas of
non-Federal lands from critical habitat designations, where we have
developed close partnerships with non-Federal land owners that resulted
in the development of HCPs or other voluntary conservation plans, can
contribute to species recovery and provide a superior level of
conservation than the designation of critical habitat alone. As
described in detail in the ``Exclusions Under Section 4(b)(2) of the
Act'' section below, we determined that the benefits of excluding areas
covered by the WSPA Management Plans, the Former Norton Air Force Base
CMP, the Western Riverside County MSHCP, and the Cajon Creek HCMA HEMP
outweigh the benefits of designating these lands, and that these
exclusions will not result in the extinction of the San Bernardino
kangaroo rat. Surveys and monitoring will continue to be required for
areas excluded based on completed management plans to ensure they are
effective (see ``Areas Considered for Exclusion Under Section 4(b)(2)
of the Act'' section below for more information).
Comment 5: One peer reviewer discussed our identification of PCEs
for the San Bernardino kangaroo rat, and specifically agreed that the
PCEs are based on the best available science, and that the identified
PCEs appropriately provide for the conservation of the subspecies.
Our Response: The description of the PCEs for the San Bernardino
kangaroo rat is based on the best available scientific and commercial
data regarding the subspecies, including a compilation of data from
peer-reviewed, published literature; unpublished or non-peer reviewed
survey and research reports; and opinions of biologists knowledgeable
about the San Bernardino kangaroo rat and its habitat. Consequently,
the PCEs, as described in this final rule, represent our best
assessment of what habitat components, in the appropriate quantity and
spatial arrangement, are essential to the conservation of the
subspecies.
Public Comments
Comments Related to Criteria Used To Identify Critical Habitat
Comment 6: Two commenters stated that the proposed rule is flawed
because it fails to include several significant areas of occupied
habitat previously designated as critical habitat in 2002 that support
one or more of the PCEs: (1) Three areas in the Santa Ana River wash;
(2) the Etiwanda Fan; (3) four areas in Cajon/Lytle Creeks; and (4) two
areas in the San Jacinto River. The commenters stated that the Service
provided no data to support the conclusion that these areas are not
occupied by the subspecies (e.g., trapping data) or do not contain the
PCEs. They further stated that several areas (i.e., Etiwanda Fan, areas
in Cajon/Lytle Creeks) that were not included in the proposed
designation are currently occupied to some extent and, therefore, must
contain the PCEs required by the species. One commenter stated that all
populations inclusive of peripheral populations are essential for
recovery and that not including all occupied areas as critical habitat
will continue to fragment and drive the species closer to the brink of
extinction.
Another commenter stated that according to a review of occurrence
information for the San Bernardino kangaroo rat and habitat assessments
conducted in 2007, the following areas are currently occupied by the
subspecies and contain the PCEs, and therefore, should have been
included in the proposed designation: (1) Three areas along Plunge
Creek in the Santa Ana River watershed; (2) one area in the Santa Ana
River; (3) one area in Lytle Creek; (4) Cable Creek in the Lytle/Cajon
Creeks watershed; (5) Bautista Creek in the San Jacinto River
watershed; and (6) the Etiwanda Fan. Several commenters also called for
the reevaluation of Plunge Creek, the Santa Ana River in Redlands,
Lytle Creek near the 210 Freeway, Cable Creek, and the Etiwanda Fan.
Certain areas that were not included in the June 19, 2007, proposed
revision to critical habitat (72 FR 33808) were commented on more
frequently than others mentioned above: Specifically, Plunge Creek,
Mill Creek, the Cable Creek wash, and Bautista Creek. Multiple comments
received during the first two comment periods and the public hearings,
including comments received from biologists familiar with the San
Bernardino kangaroo rat, indicated the importance of these areas as
confirmed occupied habitat containing the PCEs, and which retain
fluvial input and that may be necessary for the long-term conservation
of the subspecies.
Our Response: For a detailed discussion of the areas previously
designated as critical habitat that are not included in this revised
designation, see the ``Summary of Changes From the
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2002 Critical Habitat Designation'' section of this final rule. Under
section 3(5)(C) of the Act, critical habitat shall not include the
entire geographical area which can be occupied by the species unless
otherwise determined by the Secretary. 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 (a)
essential to the conservation of the species and (b) that 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. In developing the proposed rule to revise
critical habitat, we considered the geographical area occupied by the
subspecies at the time of listing, and within that broad geographical
area, identified those areas that, based on the best available
scientific and commercial data, contain the physical and biological
features essential to the subspecies' conservation. We believe that our
proposed designation, including changes to the proposed designation
outlined in the April 16, 2008, NOA (73 FR 20581), and this final
designation accurately describe all areas meeting the definition of
critical habitat for the San Bernardino kangaroo rat.
As discussed in the proposed rule to revise critical habitat and
the April 16, 2008, NOA announcing changes to the proposed rule, we
identified critical habitat for this subspecies based on several
criteria. Application of these criteria (see ``Criteria Used To
Identify Critical Habitat'' section of this final rule) results in the
determination of the physical and biological features that are
essential to the conservation of this subspecies, as identified by the
PCEs in the appropriate quantity and spatial arrangement essential to
the conservation of the subspecies. Thus, not all areas supporting the
identified PCEs will meet the definition of critical habitat. The areas
designated as critical habitat (1) support core populations that are
considered necessary for conservation of the subspecies, including
areas demographically disconnected from the largest populations that
may be important for the long-term conservation of the subspecies; and
(2) include non-degraded alluvial fans, washes, floodplains, and
adjacent upland areas with appropriate soils and vegetation.
We recognize that our designation does not encompass all known
occurrences of this subspecies as noted by the commenters. Small,
isolated areas of degraded habitat or areas devoid of fluvial processes
are likely to only support unsustainable populations that would not
contribute to the recovery of the subspecies. Although we are not
designating all known occurrences of the San Bernardino kangaroo rat,
we believe the criteria we used to identify areas that contain the
features essential to the conservation of the subspecies, and which are
included in the final revised critical habitat designation, are
adequate to ensure the conservation of the subspecies throughout its
extant range. Species that are protected across their ranges are
expected to have lower likelihoods of extinction (Soule and Simberloff
1986, pp. 32-35; Scott et al. 2001, pp. 1297-1300); we are designating
multiple locations across the range of the subspecies to prevent range
collapse.
In light of significant comments received during the comment
periods for the proposed rule on areas that are essential to the
subspecies and should be included in the designation, and new
information received, we revised our criteria used to identify critical
habitat to capture additional self-sustaining populations of San
Bernardino kangaroo rats necessary for recovery (see ``Criteria Used To
Identify Critical Habitat'' section below for more information). We
then re-evaluated the proposed critical habitat boundaries and included
in the designation additional areas in Mill Creek, Plunge Creek
(including areas providing habitat connectivity of the Plunge Creek
wash with the Santa Ana River wash), Cable Creek wash, and Bautista
Creek. These areas are currently designated as critical habitat for the
San Bernardino kangaroo rat (67 FR 19812, April 23, 2002); however, we
did not propose these areas as critical habitat in the June 19, 2007
(73 FR 33808), proposed revision to critical habitat, but announced the
addition of these areas as changes to the proposed rule in the April
16, 2008, NOA. See the ``Summary of Changes From the 2007 Proposed Rule
to Revise Critical Habitat'' and the ``Unit Descriptions'' sections of
this final rule for more information.
Comment 7: One commenter indicated concerns about the following
statement made in the proposed rule: ``Portions of the habitat
downstream of the Bautista Creek confluence have been or are in the
process of being developed or are being used for water conservation
activities and therefore this habitat does not contain the PCEs.'' The
commenter indicated that these areas should be included in critical
habitat and further stated that no data was presented in the proposed
rule indicating that these areas are no longer occupied, no longer
contain the PCEs; and if degraded, how these areas have become degraded
over the last five years.
Our Response: In the 2007 proposed rule, we discussed an integrated
water recharge and recovery program to be implemented by Eastern
Municipal Water District at the confluence of the San Jacinto River and
Bautista Creek within existing critical habitat Unit 3. The project was
expected to impact approximately 37 ac (15 ha) of floodplain and upland
habitat (Service 2006, p. 21). The Service issued a biological opinion
for this project on November 16, 2006 (Service 2006, FWS-WRIV-4051.5),
which found that the proposed action would not jeopardize the continued
existence of the subspecies nor adversely modify the currently
designated critical habitat. Although Map 4 of the proposed rule (72 FR
33808) depicts these lands within the boundary of proposed critical
habitat Unit 3, the text of the proposed rule explained that we were
not proposing to include these lands as revised critical habitat
because they had been addressed by the section 7 consultation and
biological opinion, and the proposed action would permanently impact
this habitat. The water recharge and recovery program lands total
approximately 39 ac (16 ha), not 37 ac (15 ha) as previously reported
in the proposed rule (72 FR 33808), all of which are currently
designated as critical habitat for the San Bernardino kangaroo rat.
These approximately 39 ac (16 ha) of lands are divided into five
individual outparcels ranging in size from less than an acre to 35 ac
(14 ha) and each areas is surrounded by other lands that we did include
in the proposed revision to designated critical habitat. The commenter
is correct in pointing out that this area has not yet been developed
and the area does currently contain the physical and biological
features essential to the conservation of this subspecies, as
identified by the PCEs in the appropriate quantity and spatial
arrangement. Furthermore, as indicated in the biological opinion, we
are aware that this area is occupied.
Following publication of the proposed rule to revise the critical
habitat designation, several surveys were conducted within these 39 ac
(16 ha) in association with the integrated water recharge and recovery
project. These surveys have indicated that the population of San
Bernardino kangaroo rats in these areas is larger than previously
believed and exceeds what we estimated the population to be in
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2006. Based on these survey results, the Army Corps of Engineers
requested that we re-initiate consultation on this project. Because
these lands are currently designated as critical habitat and the maps
indicating areas proposed as critical habitat included these areas (72
FR 33808), and in light of the public comment, new survey data and re-
initiation of consultation on the Eastern Municipal Water District
project, we included these 39 ac (16 ha) in Unit 3 as lands that meet
the definition of critical habitat. We believe that inclusion of these
39 ac (16 ha) is a logical outgrowth of the proposed rule and is
scientifically sound and legally justified. We determined, however,
that these 39 ac (16 ac) should be excluded from the final critical
habitat designation under section 4(b)(2) of the Act. See the ``Summary
of Changes From the 2007 Proposed Rule To Revise Critical Habitat'' and
``Exclusions Under Section 4(b)(2) of the Act'' sections of this final
rule for more information.
Comment 8: Several commenters stated that the Service cannot focus
primarily on its definition of core populations (i.e., areas where the
subspecies was repeatedly detected through live trapping) when false
negatives occur from live trapping surveys 20 percent of the time. They
further stated that the Service's definition of core populations is
inappropriate, would result in substantial San Bernardino kangaroo rat
populations being excluded from critical habitat, and should be
redefined. A number of commenters suggested peripheral or sporadically
occupied locations are essential for conservation of the subspecies.
One commenter stated that areas currently having low populations should
not be removed from critical habitat. The commenter stated that the
Service's assertion that some viable San Bernardino kangaroo rat
populations do not fit the definition of a core population, and are
therefore less important, has no biological basis for an animal that
has already lost 90 percent of its historical range. The commenter
stated that by not including potential or occupied habitat that has
been degraded as critical habitat would allow private landowners and
public agencies the ability to further degrade those areas that are
important to the conservation of the San Bernardino kangaroo rat.
Our Response: As discussed in the ``Criteria Used To Identify
Critical Habitat'' section of this final rule, we delineated critical
habitat for the San Bernardino kangaroo rat using the following
criteria: (1) Areas occupied by the subspecies at the time of listing,
and currently occupied, within the historical range of the subspecies;
(2) areas retaining fluvial dynamics containing one or more of the PCEs
for the subspecies; (3) areas supporting a core population of the
subspecies; and (4) areas demographically disconnected from the largest
populations, but which may be important for the long-term recovery of
the subspecies. Application of these criteria results in the
determination of the physical and biological features that are
essential to the conservation of this subspecies, identified as the
species' PCEs laid out in the appropriate quantity and spatial
arrangement. Thus, not all areas supporting the identified PCEs will
meet the definition of critical habitat. Based on information provided
in public comments, these criteria were revised after the June 19, 2007
(72 FR 33808), proposed revision to critical habitat to capture
essential features supporting additional self-sustaining populations of
San Bernardino kangaroo rats (see ``Criteria Used To Identify Critical
Habitat'' section below for more information). As a result, we added
four areas totaling approximately 1,579 ac (639 ha) to the proposed
revision as announced in the April 16, 2008 NOA (73 FR 20581). We
believe our final designation accurately describes all specific areas
meeting the definition of critical habitat for the San Bernardino
kangaroo rat. We acknowledge that false negatives can occur from live
trapping surveys for San Bernardino kangaroo rats; however, as required
under the Act, we used the best available scientific information in
determining areas occupied by this subspecies.
We recognize that our designation of critical habitat for the San
Bernardino kangaroo rat does not encompass all known occurrences of
this subspecies as noted by the commenters. In this designation, we
focused primarily on core populations (i.e., areas where the subspecies
was repeatedly detected through live trapping) in undisturbed habitat
in the Santa Ana River, Lytle/Cajon Creeks, and the San Jacinto River
washes. We believe protecting the largest core populations is necessary
for recovery of the subspecies. Small, isolated areas of degraded
habitat or areas devoid of fluvial processes are likely to only support
unsustainable populations that would not contribute to the recovery of
this subspecies. Although we are not designating all known occurrences
of the San Bernardino kangaroo rat, we believe our criteria are
sufficient, and therefore the designation is adequate, to ensure the
conservation of this subspecies throughout its extant range based on
the best available information at this time. We recognize that the
designation of critical habitat may not include all of the habitat that
may eventually be determined to be necessary for the recovery of the
subspecies, and critical habitat designations do not signal that
habitat outside of the designation is unimportant or may not contribute
to recovery. Areas outside the final critical habitat designations will
continue to be subject to conservation actions implemented under
section 7(a)(1) of the Act, and regulatory protections afforded by the
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of
the Act.
Comment 9: One commenter cited statements in the proposed rule that
several areas were not included in the proposed designation because
they ``contain habitat that has been degraded'' and requested
justification as to why no regulatory mechanisms were triggered in the
past to prevent habitat destruction in these areas since they were
included in the 2002 designation.
Our Response: As explained above in response to comment 2, the
reduction in total area from what was designated in 2002 is primarily
the result of: (1) Exclusions of habitat under section 4(b)(2) of the
Act; (2) revision of the primary constituent elements; (3) revision of
our criteria used to identify critical habitat; (4) and removal of
lands within the geographical area occupied by the subspecies at the
time it was listed that do not contain the physical or biological
features as identified by the PCEs in the appropriate quantity and
spatial arrangement essential to the conservation of the subspecies.
We have significant additional occurrence data and knowledge about
specific habitat requirements of this species that was not known when
we first designated critical habitat for the San Bernardino kangaroo
rat in 2002. We utilized this data to revise the primary constituent
elements and criteria used to identify critical habitat consistent with
the statutory obligations of the Act and applicable case law (see the
``Summary of Changes From the 2002 Critical Habitat Designation''
section of this final rule for more information).
As pointed out by the commenter, there are areas of currently
designated critical habitat that were removed in part due to habitat
degradation and/or the determination that the areas do not contain the
physical and biological features essential to the conservation of this
subspecies. Some of these areas likely did not support the physical and
biological features essential to the
[[Page 61942]]
conservation of the subspecies in 2002, when critical habitat was first
designated (see ``Summary of Changes'' section). We have revised the
PCEs since the 2002 designation based on new information and a better
understanding of the statutory obligations of the Act. Furthermore, we
diligently reviewed all areas considered for designation to demonstrate
existence of the physical and biological features essential to the
conservation of this subspecies within the geographical area occupied
by this subspecies at listing.
Other areas have become degraded since critical habitat was
designated. 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(a)(2) of the Act requires consultation on
Federal actions that may affect critical habitat. However, there are a
number of reasons why designated critical habitat can become degraded
without triggering consultation.
The designation of critical habitat does not affect land ownership
or establish a refuge, wilderness, reserve, preserve, or other
conservation area. Generally, habitat may degrade through time due to
lack of management. A critical habitat designation does not force a
landowner to manage their land to the benefit of a species.
Furthermore, proposed projects or actions occurring in critical habitat
that do not involve a Federal nexus are not subject to the section 7
prohibition against destruction or adverse modification of critical
habitat and, therefore, no consultation is required for those projects
to occur. Where the consultation requirements of section 7(a)(2) do
apply, an analysis would only result in a finding of destruction or
adverse modification if the project was expected to impact the
capability of the critical habitat unit as a whole to perform its
conservation function for the subspecies. Projects may adversely impact
the physical and biological features essential to the conservation of a
species within a critical habitat unit without impairing the unit's
conservation role and function for the species. For example, the
Service completed formal section 7 consultation on the Lytle Creek
North Master Planned Community in existing critical habitat Unit 2. In
our Biological Opinion we determined that the proposed action was not
likely to jeopardize the continued existence of the subspecies nor
result in the destruction or adverse modification of critical habitat
(Service 2003a, p. 45, FWS-SB-1640.11), even though the project
resulted in the loss of some designated critical habitat. We have not
consulted on any projects within designated critical habitat where we
determined that project implementation would destroy or otherwise
adversely modify critical habitat such that the designated unit could
no longer properly function and support the essential features for
which it was designated. Finally, 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.
Comment 10: Two commenters stated that critical habitat should
include linkage corridors and address connectivity issues relevant to
the San Bernardino kangaroo rat. One commenter stated that arguments in
the proposed rule to remove specific areas within the Santa Ana River
watershed show a limited understanding of the habitat needs and the
corridor connectivity issues that are relevant to this subspecies. One
commenter further stated that the critical habitat delineated in the
proposed revision to critical habitat shows a limited, single-species
perspective. Several commenters stated that continuity between
populations must be maintained.
One commenter stated that, through the proposed rule, fragments of
critical habitat were created (i.e., Plunge Creek) and populations
removed because they are believed to be isolated from perhaps larger
populations (i.e., Etiwanda Fan, Cable Creek, and Bautista Creek) and
that the goal for the designation should be to form linkages between
occupied areas, which reduce genetic isolations, allow populations to
re-colonize following local extinctions from stochastic events, and
migrate in response to environmental change.
Our Response: We agree that linkages are important to reduce
genetic isolation and to allow for re-colonization and migration.
Included in the criteria for defining the physical and biological
features within occupied habitat for inclusion in the critical habitat
designation are areas adjacent to and between San Bernardino kangaroo
rat occurrence points that maintain connectivity of occurrences in one
continuous patch of suitable habitat. We maintained connectivity of
core populations within each of the proposed critical habitat units.
However, in some areas there are geographical barriers to connectivity,
such as manmade structures or large expanses of unsuitable habitat.
These areas are not likely to support actual movement of San Bernardino
kangaroo rats and do not contain the physical and biological features
essential to the conservation of this subspecies, and therefore do not
meet the definition of critical habitat and are not included in this
final designation. As announced in the NOA for the draft economic
analysis (73 FR 20581), we are including in the final revised critical
habitat designation areas in and around Plunge and Mill Creeks to
increase connectivity in Unit 1. Furthermore, we are including portions
of Cable Creek (Unit 4) and Bautista Creek (Unit 5) in the designation
of critical habitat as these areas may be important for the long-term
conservation of this subspecies. See the ``Summary of Changes From the
2007 Proposed Rule To Revise Critical Habitat'' and the ``Unit
Descriptions'' sections of this final rule for more information.
Designation of these areas within the Santa Ana River, Lytle/Cajon
Creeks, and San Jacinto River watersheds is based on data and
information received during the comment periods from these and other
commenters and creates additional connectivity within the designation.
We responded to all data and scientific information received during the
comment periods and did not receive any other data indicating that
additional areas within the Santa Ana River watershed, or elsewhere
within the range of the San Bernardino kangaroo rat, meet the
definition of critical habitat. We agree with the commenter that this
final designation is limited in perspective to a single subspecies, the
San Bernardino kangaroo rat. It is outside the scope of this final rule
to address conservation need of other species within a single species
critical habitat designation.
Comment 11: One commenter asserted that the Service's statement in
the 2007 proposed rule that channelized areas in the San Jacinto River
prevent connectivity with core populations is unjustified, and that we
provided no evidence indicating that the PCEs are not present or that
these areas do not provide connectivity. Several commenters stated that
channelized creeks (such as portions of Cable and Bautista creeks)
should contain a natural bottom with islands of habitat that the
subspecies could use as corridor habitat, utilizing patches of habitat
as ``stepping stones'' and temporary refugia as they disperse.
Our Response: Channelized areas are not included in this
designation because they do not provide suitable habitat to sustain San
Bernardino kangaroo rat populations beyond the next storm event, which
could flood the channels
[[Page 61943]]
with high-velocity flows from bank to bank, eliminating populations
within the channelized areas. Furthermore, we have no evidence to
suggest that this subspecies utilizes channelized areas (some of which
are lined with concrete) to successfully migrate between populations.
We agree that channels with natural bottoms and islands of habitat
could provide better opportunities for dispersal between populations.
However, these ``stepping stones'' are not in place at this time, and
we are not including these channelized areas in the designation of
critical habitat as they do not currently meet the definition of
critical habitat.
Comment 12: One commenter stated that construction technologies
should be explored that would create or sustain San Bernardino kangaroo
rat habitat. The commenter also stated that a hydrologic analysis of
the existing levees, detention basins, and other flood control
structures should be completed to determine if these structures are
still required. Another commenter stated that areas along the Santa Ana
River are important, as re-engineering of flood control features can
create appropriate conditions for the San Bernardino kangaroo rat.
Our Response: We agree that flood control and water conservation
structures contributed to the loss of suitable habitat for the San
Bernardino kangaroo rat by altering hydrological processes, and we
agree that sustaining areas where natural hydrological processes remain
is important to the conservation of this subspecies. Although studies
of construction technologies and investigations of the necessity for
existing hydrological structures could benefit the conservation of this
subspecies in the future, we do not currently have this information and
we were not able to include an analysis of such information in making
our designation of critical habitat. When delineating critical habitat
for the San Bernardino kangaroo rat, we used the best available
scientific information to determine those areas that meet the
definition of critical habitat.
Comment 13: One commenter stated that the proposed rule was flawed
because the Service failed to include unoccupied areas for recovery.
The commenter stated that the Service ignored the recovery goal of
critical habitat by failing to include historical habitat that may not
be currently occupied, but could provide an opportunity for the
subspecies' recovery. The commenter further stated that the Service
must consider and evaluate the recovery benefits of critical habitat
designation in order to promulgate a legally valid critical habitat
rule. One commenter stated that areas outside the geographical area
occupied by the subspecies included in the 2002 designation are still
essential to the conservation of the subspecies and should have been
included in the 2007 proposed rule.
Our Response: The Service may designate as critical habitat areas
outside of the geographical area occupied by a species at the time it
was listed when we can demonstrate that those areas are essential for
the conservation of the species (section 3(5)(A)(ii) of the Act).
Likewise, we can designate as critical habitat areas ``outside the
geographical area presently occupied by a species only when a
designation limited to its present range would be inadequate to ensure
the conservation of the species.'' (50 CFR 424.12(e)).
Conservation (i.e., recovery) is achieved when a five factor
analysis performed pursuant to section 4(a)(1) if the Act indicates
that current and future threats have been minimized to an extent that
the species is no longer threatened with extinction in the foreseeable
future. Recovery is a dynamic process requiring adaptive management of
threats and there are many paths to accomplishing recovery of a
species. We recognize that it is unlikely that threats to this
subspecies will be removed from all areas identified in this rule and
that recovery efforts will occur outside the boundaries of this final
designation; however, we believe that that conservation of this
subspecies would be achieved if threats to this subspecies, as
described in the ``Special Management Considerations or Protection''
section of this rule, were reduced or removed due to management and
protection of those areas. Therefore, consistent with the statutory
obligations of the Act and our implementing regulations we are not
designating any unoccupied areas or areas outside the geographical area
occupied by this subspecies at the time it was listed.
Critical habitat designations do not signal that habitat outside
the designation is unimportant or may not contribute to a species'
recovery. Areas outside the final critical habitat designation will
continue to be subject to conservation actions implemented under
section 7(a)(1) of the Act, and regulatory protections afforded by the
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of
the Act. Critical habitat designations based on the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if information available at
the time of those planning efforts calls for a different outcome. We
recognize that the threats faced by this subspecies may change in the
future; however, we base our critical habitat designations on the
information available at the time of the designation and do not
speculate as to what areas may be found essential if better information
becomes available or what areas may become essential over time. The
commenter did not include any specific data supporting their statement
that unoccupied areas are essential for the recovery of the San
Bernardino kangaroo rat and we are not aware of any studies or data
that we did not consider. Should additional data become available, we
may revise this critical habitat designation, subject to available
funding and other conservation priorities.
Contrary to the commenter's assertion, we note that all areas
designated as critical habitat in 2002 were within the geographical
area occupied by the species at the time of listing. For a detailed
discussion regarding areas referenced by the commenter that were
designated in 2002 but not included in this final revised designation,
please see the ``Summary of Changes From the 2002 Critical Habitat
Designation'' section of this final rule.
Comment 14: One commenter stated that before the Service reduces
critical habitat of a species that is already in peril, the Service
should scientifically analyze if this reduction further jeopardizes the
species' recovery and that a recovery plan, including a population
viability analysis, should be completed for the San Bernardino kangaroo
rat.
Our Response: We agree that a recovery plan and a population
viability analysis could provide useful information when considering a
critical habitat designation; however, at this time, neither a recovery
plan nor a population viability analysis was completed for the San
Bernardino kangaroo rat. Given the timeframe in which we had to prepare
this critical habitat rule, we did not have time to prepare a recovery
plan or a population viability analysis for this subspecies; and the
Act does not require the preparation of such analyses before critical
habitat is designated. When delineating critical habitat for the San
Bernardino kangaroo rat, we used the best available scientific
information to determine those areas that meet the definition of
critical habitat.
[[Page 61944]]
Comments Related to the Primary Constituent Elements
Comment 15: One commenter stated that hydrological processes are an
essential part of the alluvial fan sage scrub plant community and San
Bernardino kangaroo rat habitat and, therefore, should be included as a
PCE. The commenter further stated areas that provide necessary
hydrology to down-stream alluvial fans and the processes that the San
Bernardino kangaroo rat relies upon for habitat renewal and maintenance
should have been included in the proposed designation.
Our Response: We consider PCEs to be tangible, recognizable, or
measurable features in the landscape, where possible, and not the
processes that result in the feature. Biologists and non-biologists
should be able to clearly determine the presence of PCEs in the field.
A process such as hydrological regime should not be a PCE, but the
resulting habitat condition (i.e., the end result of the process) is an
appropriate PCE. In the case of the San Bernardino kangaroo rat,
although hydrological processes maintain the alluvial sage scrub with
proper soil and vegetative characteristics for this subspecies, habitat
features described by the PCEs are the actual habitat parameters relied
upon by the San Bernardino kangaroo rat, not the natural process that
contributes to the long-term maintenance of the habitat (see the
``Primary Constituent Elements'' section for a detailed discussion).
Comment 16: One commenter stated that the proposed rule fails to
describe the PCEs based on the best available science. This commenter
stated that according to Braden and McKernan (2000), San Bernardino
kangaroo rats were documented in a variety of plant communities,
including coastal sage scrub, chaparral, in highly disturbed areas
previously not thought to be suitable habitat for this subspecies
(i.e., dirt parking lots, dirt roads), and questioned why these plant
communities and disturbed areas were not included in the proposed
designation.
Our Response: The PCEs for the San Bernardino kangaroo rat
described in the proposed rule and this final rule are based on the
best available science (see Comment 5 and response above). We are aware
of the Braden and McKernan (2000) study, which showed San Bernardino
kangaroo rats occupying areas that were previously thought to be
unsuitable habitat, and we have used that information in revising the
PCEs and delineating critical habitat for this subspecies in this final
rule. Please refer to the ``Primary Constituent Elements'' section of
this final rule for more information on this topic.
Comment 17: One commenter disagreed with PCEs 2 and 3, stating that
areas with up to 50 percent chamise chaparral cover are unsuitable for
the San Bernardino kangaroo rat and that marginal upland areas occupied
at low densities that are in proximity to occupied habitat do not serve
to perpetuate the subspecies.
Our Response: We disagree with the commenters' assertion that up to
50 percent chamise chaparral cover is unsuitable for the San Bernardino
kangaroo rat. Research shows that alluvial fan habitat with mature,
relatively dense vegetation, including chaparral, is at least
periodically occupied by the San Bernardino kangaroo rat (Braden and
McKernan 2000, p. 16) (see Comment 16 and response above and the
``Primary Constituent Elements'' section of this final rule). Also, we
believe upland areas contain features essential to the conservation of
the subspecies (see the ``Primary Constituent Elements'' section of
this final rule for a detailed discussion of the importance of upland
habitat).
Comments Related to Subspecies Biological Information
Comment 18: One commenter suggested our statement that inclusion of
``sufficient areas to provide the space needed to maintain the home
range for this subspecies'' is na[iuml]ve and misleading. This
commenter stated they have studied home range dynamics and space
utilization of the Merriam's kangaroo rat (Dipodomys merriami), of
which the San Bernardino kangaroo rat is a subspecies, and the
commenter noted that this species diverges from the normally accepted
concept of home range as a single area where an individual remains for
life. The commenter further stated that the size, shape, and location
of a home range will change dramatically through time depending on a
number of factors.
Our Response: We agree with the commenter about the dynamic and
changing nature of the San Bernardino kangaroo rat's home range. We did
not suggest in the proposed rule that this subspecies has a defined,
static home range where it remains during its entire lifetime.
Furthermore, we considered the dynamic home range of this subspecies
when delineating critical habitat. In order to clarify concerns voiced
by the commenter, we changed the quoted text which appears in the
``Primary Constituent Elements'' section of this final rule to read
``sufficient areas to provide the space needed to maintain the home
range dynamics of this subspecies.''
Comments Related to Proposed Exclusions Under Section 4(b)(2) of the
Act
Comment 19: One commenter stated that many of the proposed
exclusions of critical habitat are not consistent with the stated goals
of the Service in providing protection and recovery for the San
Bernardino kangaroo rat, while another commenter stated that areas
proposed for exclusion by the Service should remain in critical
habitat. Another commenter stated that while they support conservation
efforts for the San Bernardino kangaroo rat through management plans
and acquisition of funding to implement these plans, these efforts are
not a substitute for the designation of critical habitat. This
commenter stated that the rationale for proposing the following areas
for exclusion under section 4(b)(2) of the Act is unjustified for the
following reasons:
(1) WSPA Management Plan--(a) this plan does not mention the San
Bernardino kangaroo rat as a target species for conservation nor does
it provide species-specific monitoring; (b) because the San Bernardino
kangaroo rat is sympatric with the woolly star, declines in the number
of woolly star plants documented in this area over the past seven
seasons may indicate a potential decline in San Bernardino kangaroo rat
habitat as well; (c) relying on the draft WSPA Multiple Species Habitat
Management Plan (MSHMP) to exclude areas from final critical habitat is
not justified since the specific goals of the draft MSHMP are currently
non-binding;
(2) Former Norton Air Force Base CMP--while conservation easements
are identified as the method to assure San Bernardino kangaroo rat
conservation in perpetuity, to date no conservation easements are
recorded for these areas;
(3) Western Riverside County MSHCP--the purpose of the MSHCP to
streamline Federal and State regulatory mechanisms and allow for take
of endangered species is very different from the purpose of critical
habitat to recover species; and
(4) The designation of Norton Air Force Base, Cajon Creek Habitat
Conservation Management Area, and Eastern Municipal Water District
Conservation Lands as critical habitat causes no additional regulatory
burdens to the agencies that now manage them and will actually aid in
bringing much-needed resources to the management of these areas.
[[Page 61945]]
Our Response: We determined that the benefits of exclusion outweigh
the benefits of inclusion for lands covered by the WSPA Management
Plans, the Former Norton Air Force Base CMP, the Western Riverside
County MSHCP, and the Cajon Creek HCMA HEMP, and therefore excluded
these lands from critical habitat under 4(b)(2) of the Act. Please see
the ``Exclusions Under Section 4(b)(2) of the Act'' section of this
final rule for a detailed discussion of the management plans and the
benefits each plan provides to the San Bernardino kangaroo rat.
Where a Federal nexus exists, lands designated as critical habitat
are protected from destruction or adverse modification under section
7(a)(2) of the Act. However, the conservation and management plans
mentioned above incorporate on-going management and protection for the
San Bernardino kangaroo rat that will benefit the long-term
conservation of the subspecies. This type of long-term management would
not necessarily result from a section 7(a)(2) consultation on an area
where critical habitat is designated. Additionally, the protection and
management afforded to San Bernardino kangaroo rat habitat under these
plans extend to private lands that may otherwise lack a Federal nexus
triggering consultation under section 7(a)(2) of the Act. Moreover,
these plans provide for proactive monitoring and management of
conserved lands, which is important to the survival and recovery of the
San Bernardino kangaroo rat.
Such conservation needs are typically not addressed through the
application of the statutory prohibition on destruction or adverse
modification of critical habitat. Section 4(b)(2) of the Act directs
the Secretary to consider the economic impact, national security
impact, and any other relevant impact of specifying any particular area
as critical habitat. An area may be excluded from critical habitat if
it is determined that the benefits of exclusion outweigh the benefits
of specifying a particular area as critical habitat, unless the failure
to designate an area as critical habitat will result in the extinction
of the species. As discussed in detail in the ``Exclusions Under
Section 4(b)(2) of the Act'' section, we believe the exclusions in this
final rule are legally supported under section 4(b)(2) of the Act and
scientifically justified. The benefits of designating critical habitat
in areas covered by these plans are minimal, and implementation of
these plans will result in an increased level of protection and long-
term conservation for the San Bernardino kangaroo rat. Imposing an
additional regulatory review as a result of designating critical
habitat may undermine these conservation efforts and partnerships.
With regard to the comments above that are specific to the WSPA
Plan; first, we acknowledge that the San Bernardino kangaroo rat is not
directly addressed by the 1993 Management Plan for the Santa Ana River
Woolly-Star implemented on the WSPA. However, the management tasks
benefit the San Bernardino kangaroo rat as well (see ``Woolly-Star
Preserve Area (WSPA) Management Plans'' discussion below). Second, we
have no records to indicate that a recent decline in woolly star plants
is directly related to a decline in San Bernardino kangaroo rat
habitat. Third, we are not basing our exclusion of WSPA lands solely on
the recent draft WSPA MSHCP. We are excluding those lands based on
partnerships with the local sponsors in preparation and implementation
of the 1993 WSPA management plan and the ongoing update to that plan
(i.e., the WSPA MSHCP) which will address the San Bernardino kangaroo
rat (see the ``Woolly-Star Preserve Area (WSPA) Management Plans''
exclusion discussion below).
With regard to the conservation easements on Former Norton Air
Force Base (CMP) lands, the San Bernardino International Airport
Authority (SBIA Authority) is currently pursuing conservation easements
to assure San Bernardino kangaroo rat conservation in perpetuity on
these lands.
Regarding the remaining points raised by the commenter above
specific to the Western Riverside County MSHCP, the Former Norton Air
Force Base CMP, and the Cajon Creek HCMA HEMP, please see the
``Benefits of Designating Critical Habitat,'' ``Conservation
Partnerships on Non-Federal Lands,'' ``Benefits of Excluding Lands With
HCPs or Other Approved Management Plans,'' and the plan-specific
exclusions sections of this final rule for a full discussion of our
rationale for excluding these lands under section 4(b)(2) of the Act.
Finally, we are not excluding the Eastern Municipal Water District
conservation lands from critical habitat for the San Bernardino
kangaroo rat.
Comment 20: Two commenters stated that the proposed revision would
violate the Implementing Agreement (IA) of the Western Riverside County
MSHCP because it does not exclude 506 ac (205 ha) of water district
land within the MSHCP boundaries. They further stated that the MSCHP
has already taken the 506 ac (205 ha) of water district lands into
account--and state that in the IA, the Service agreed that ``in the
event that a critical habitat determination is made for any Covered
Species Adequately Conserved * * * lands within the boundaries of the
MSHCP will not be designated as critical habitat.'' They further stated
that the MSHCP provides full protection for the San Bernardino kangaroo
rat even without consideration of the 506 ac (205 ha) owned by the two
water districts (Eastern Municipal Water District and Lake Hemet
Municipal Water District). Additionally, the commenters stated that the
water districts could qualify as a ``Participating Special Entity''
under the MSHCP and the significance of this is that if either water
district wishes to implement a project for which take authorization is
required, they must comply with the MSHCP and its IA. Thus, if take
authorization were ever required for their properties, it would be
covered under the MSHCP.
Our Response: In the proposed rule to revise critical habitat, we
provided a description of the Western Riverside County MSHCP and an
analysis of the proposed exclusion from critical habitat of lands
covered by this plan to allow the public to comment and provide
additional information that should be considered in our final exclusion
analysis (see ``Exclusions under Section 4(b)(2) of the Act'' section
below for a detailed discussion). We appreciate any conservation work
that Eastern Municipal Water District and Lake Hemet Municipal Water
District may be doing; however, the water districts are not signatories
to or permittees under the MSHCP. Because the water districts are not
signatories of the MSHCP, they may elect to not be a ``Participating
Special Entity'', and instead choose an alternative approach outside of
the MSHCP to conduct their activities. By taking an alternative
approach, a water district would not be required to comply with the
MSHCP and associated IA. Therefore, the benefits of including lands
owned by the Eastern Municipal Water District and Lake Hemet Municipal
Water District as critical habitat are higher than the benefits of
including other lands within the overall MSHCP boundaries subject to
the MSHCP, and we determined under section 4(b)(2) of the Act that the
water districts' lands should not be excluded from this final
designation.
Comment 21: One commenter stated that the area covered by the Cajon
Creek HCMA HEMP should remain in the critical habitat designation to
remind the conservation area managers of their responsibility to the
San Bernardino kangaroo rat and other threatened and endangered
species.
[[Page 61946]]
Our Response: The Cajon Creek HCMA HEMP, managed by Vulcan
Materials Company (formerly CalMat Company), Western Division, was
created to offset sand and gravel mining proposed within and adjacent
to Cajon Creek. In making the Cajon Creek HCMA HEMP exclusion, we
evaluated the benefits of designating non-Federal lands that may not
have a Federal nexus for consultation while considering if our existing
partnership has, or will, result in greater conservation benefits to
the San Bernardino kangaroo rat and its habitat than would likely
result from consultation on a designation. We balanced the benefits of
inclusion against the benefits of exclusion (i.e., the benefits of
preserving partnerships and encouraging development of additional HCPs
and other conservation plans in the future). We determined that the
Cajon Creek HCMA HEMP provides equivalent or greater conservation
benefit to the San Bernardino kangaroo rat than would likely result
from including this area in the designation, that designation could
impact our current and future partnerships, and that exclusion of the
lands covered by this plan will not result in the extinction of the
subspecies (see ``Exclusions under Section 4(b)(2) of the Act'' section
below for a detailed discussion). Vulcan Materials is responsible for
managing these alluvial fan scrub habitat areas in perpetuity for 24
species, including the San Bernardino kangaroo rat, regardless of
whether or not critical habitat for the San Bernardino kangaroo rat
exists on these lands. Vulcan Materials Company is aware of the
conservation value of their land and has maintained a strong
partnership with the Service by submitting annual reports and ensuring
that management and monitoring of their conservation lands adheres to
the requirements of the Cajon Creek HCMA HEMP.
Comment 22: One commenter stated that they oppose the Service's
policy of relying on section 4(b)(2) to exclude habitat that may be
covered by management plans, conservation easements, and/or endowments
under the logic that these areas do not need ``special management''
pursuant to section 3(5)(A). The commenter referred to this approach as
``belt and suspenders'' and reminded the Service that the district
court of Arizona struck down this approach in Center for Biological
Diversity, et al. v. Norton (D. Ariz. 2003). Furthermore, the commenter
stated that our exclusion analyses are flawed because a determination
that excluding an area will not result in the extinction of a species
does not consider the recovery standards and benefits associated with
designation. The commenter believes that all San Bernardino kangaroo
rat habitat needs special management because of the variety of impacts
to its habitat (e.g., changes in hydrologic regimes, direct impacts
from development, off-road vehicle impacts). The commenter stated that
current or future management actions provided for the San Bernardino
kangaroo rat or its habitat by management plans and/or conservation
plans are not a reasonable justification for excluding these areas from
the protection that a designation of critical habitat provides. The
commenter further stated that the Act defines critical habitat as an
area that may need special management, and therefore areas that are
receiving management under a management plan and/or conservation plan
meet the definition of critical habitat and should not be excluded if
the necessary management is being provided under a plan. The commenter
concluded that the Service should include in the final critical habitat
designation all historical and contemporary areas where the San
Bernardino kangaroo rat was known (unless it has been developed),
because these areas meet the definition of critical habitat by nature
of their need for special management.
Our Response: The commenter appears to be confusing the purposes of
sections 3(5)(A) and 4(b)(2) of the Act. Section 3(5)(A) provides the
requirements for identifying critical habitat, while section 4(b)(2)
directs the Secretary to consider the impacts of designating such areas
as critical habitat and provides the Secretary with discretion to
exclude particular areas if the benefits of exclusion outweigh the
benefits of inclusion. In this rule, we have not stated that areas do
not meet the definition of critical habitat under 3(5)(A) because they
are being adequately managed. However, we have considered the
management of particular areas that do meet the definition of critical
habitat in our analyses under section 4(b)(2).
We explain our criteria for designating critical habitat in
response to comments 6, 8, and 13 above as well as the ``Criteria Used
To Designate Critical Habitat'' section below. The responses to
comments 6 and 8 address why this designation does not contain all
known occurrences of this subspecies (i.e., contemporary areas) and the
response to comment 13 addresses why we are not including any
unoccupied habitat (i.e., historical areas) in this final rule. We
believe our criteria captures all areas that meet the definition of
critical habitat under section 3(5)(A) of the Act. We will focus our
response to this comment on our exclusion of lands under section
4(b)(2) of the Act that we determined met the definition of critical
habitat under section 3(5)(A) of the Act.
Section 4(b)(2) of the Act states that any designations of and/or
revisions to critical habitat will be made on the basis of the best
scientific data available after taking into consideration the economic
impact, the impact on national security, and any other relevant impact
of specifying any particular area as critical habitat. The Secretary
may exclude any area from critical habitat if he determines that the
benefits of exclusion outweigh the benefits of specifying such area as
part of the critical habitat, unless he determines that the failure to
designate such area as critical habitat will result in the extinction
of the species concerned. Therefore, consistent with the Act, we must
consider the relevant impacts of designating areas that meet the
definition of critical habitat using the best available scientific data
available prior to finalizing a critical habitat designation.
After determining the areas that meet the definition of critical
habitat under section 3(5)(A) of the Act as described above, we took
into consideration the economic impact, the impact on national
security, and other relevant impacts of specifying any particular area
as critical habitat for the San Bernardino kangaroo rat. In this final
designation, we recognize that designating critical habitat in areas
where we have partnerships with land owners that have led to
conservation and/or management of listed species on non-Federal lands
has a relevant perceived impact to landowners and a relevant impact to
future partnerships and conservation efforts on non-Federal lands.
These impacts are described in detail in the ``Conservation
Partnerships on Non-Federal Lands'' section below. Based on these
relevant impacts, we evaluated the benefits of designating areas as
critical habitat against the benefits of excluding these areas from the
critical habitat designation. Please see the ``Application of Section
4(b)(2) of the Act'' and ``Exclusions under Section 4(b)(2) of the
Act'' sections of this final rule for a detailed discussion of the
benefits of excluding lands covered by management plans versus the
benefits of including these areas in a critical habitat designation.
Upon weighing the specific benefits of inclusion against specific
benefits of exclusion, we determined that the benefits of excluding a
portion of units 1, 2, 3, and 5 outweigh the
[[Page 61947]]
benefits of including these areas in the final critical habitat
designation. When weighing the benefits of including an area in the
critical habitat designation, we fully consider the regulatory benefits
provided to the species under section 7(a)(2) of the Act based on the
statutory difference between a jeopardy analysis and an adverse
modification analysis, and our balancing analyses reflects our
consideration of the recovery standards and benefits associated with
designation. Further we determined that the exclusion of these areas
will not result in extinction of the San Bernardino kangaroo rat.
Contrary to the commenter's belief, this determination to exclude areas
where the benefits of exclusion outweigh the benefits of inclusion and
where we determined that the exclusion will not result in the
extinction of the species is consistent with the statutory obligations
of the Act. Therefore, we believe these exclusions are in full
compliance with the Act.
Comment 23: One commenter stated that the proposed critical habitat
rule did not unequivocally demonstrate that the benefits of excluding
areas covered by management plans from critical habitat outweigh the
benefits of including them.
Our Response: As stated above, the Secretary may exclude any area
from critical habitat if he determines that the benefits of exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, unless he determines that the failure to designate such area
as critical habitat will result in the extinction of the species
concerned. The benefits of excluding an area from a critical habitat
designation (e.g., preserving partnerships and fostering new
partnerships) are not directly comparable to the benefits of including
that same area within a designation (e.g., regulatory consultation
requirement), and therefore one cannot unequivocally compare the two in
an analysis; rather the Secretary fully considers the impacts of
designation and weighs all the factors to determine if the benefits of
exclusion outweigh the benefits of inclusion. For the reasons detailed
in the ``Exclusions under Section 4(b)(2) of the Act'' section of this
final rule, we determined that the benefits of exclusion outweigh the
benefits of inclusion for lands covered by the WSPA Management Plans,
the Former Norton Air Force Base CMP, the Western Riverside County
MSHCP, and the Cajon Creek HCMA HEMP, and determined that exclusion of
these lands will not result in the extinction of the San Bernardino
kangaroo rat. Therefore, we have excluded these lands from the critical
habitat designation under section 4(b)(2) of the Act.
Comments on Lands Designated as Critical Habitat
Comment 24: Several commenters stated there are areas within the
proposed critical habitat that should not be included in the final
designation because they do not contain the PCEs, are not occupied by
the subspecies, or otherwise do not meet the definition of critical
habitat. One commenter objected to the inclusion of three parcels of
land along City Creek in proposed Unit 1 that are used by San
Bernardino County Flood Control for maintenance activities following
storm events, and stated that these parcels are being evaluated by the
City of Highland as part of its land use planning effort for the future
development of the Golden Triangle area. Two commenters objected to the
inclusion of large areas of property (owned by Lytle Development
Company) in the Lytle Creek area in proposed critical habitat Unit 2.
The objection is based on negative survey data over recent years and
judgment of a biological consultant who believes the areas in question
are not suitable habitat for this subspecies, are not occupied, or are
not essential to the conservation of the subspecies.
Our Response: Where site-specific information was submitted to us
with a rationale as to why an area should not be designated as critical
habitat, we evaluated that information in accordance with the
definition of critical habitat pursuant to section 3(5)(A) of the Act.
Following our evaluation of the provided information, we made a
determination that modifications to the critical habitat boundaries
were not warranted. Data used in the preparation of our final revised
designation indicate that the area of Lytle Creek in question is
occupied by the San Bernardino kangaroo rat and contains some of the
last remaining suitable upland habitat (PCEs 2 and 3) in Unit 2 that
contains the features essential to the conservation of the subspecies,
and the areas near City Creek provide suitable alluvial habitat in Unit
1 and connectivity with the core population in the Sana Ana River wash.
The area in question meets our criteria used to identify critical
habitat (see ``Criteria Used To Identify Critical Habitat'' section
below). We believe that based on the behavior and ecology of the San
Bernardino kangaroo rat as extrapolated from the best available
scientific data, the animal may not be detectable at all times across
all areas designated as critical habitat, and, based on our analysis,
we believe we properly defined occupancy as it relates to the behavior
and ecology of this subspecies.
Comment 25: One commenter stated the Service failed to make the
requisite finding that land within two areas of Lytle Creek, which they
claim should be excluded, may require special management considerations
or protection. The commenter claims that these lands are not candidates
for special management considerations or protection because no
reasonable amount of management efforts could make these lands suitable
for the San Bernardino kangaroo rat or connect them with the Lytle
Creek wash population. The commenter further stated that one of these
areas is outside the geographical area occupied by the San Bernardino
kangaroo rat and the Service has not made, and cannot make, the
requisite findings to include the area within critical habitat under 16
U.S.C. section 1532(5)(A)(ii).
Our Response: We determined through survey data, vegetation data,
analysis of aerial imagery, and site visits with Service subspecies
experts, that these two areas of Lytle Creek are within the
geographical area occupied at the time of listing, are currently
occupied, and contain the features essential to the conservation of the
San Bernardino kangaroo rat. We acknowledge that these upland areas are
likely occupied at a lower density than areas within the lowland wash
and contain somewhat dense vegetation; however, these areas contain
some of the last remaining upland habitat within Unit 2 (PCEs 2 and 3)
and contain the features essential to the conservation of the
subspecies as described in the ``Primary Constituent Elements'' section
of this final rule. As discussed in the ``Unit Descriptions'' section
of this final rule, the physical and biological features within the
Lytle/Cajon Creek wash may require special management considerations or
protection to minimize impacts associated with flood control
operations, water conservation projects, sand and gravel mining, and
urban development. Furthermore, Braden and McKernan (2000, p. 16)
demonstrated that areas with late phases of floodplain vegetation, such
as mature alluvial fan sage scrub and associated coastal sage scrub and
chaparral, including some areas of moderate to dense vegetation, are at
least periodically occupied by San Bernardino kangaroo rats.
Additionally, we believe the earthen levees separating some of these
areas from the active wash do not isolate individuals or prohibit
movements in these areas from the core population within Lytle Creek
wash. Therefore, we disagree with the
[[Page 61948]]
commenter's claim that no reasonable amount of management efforts could
make this land suitable for the subspecies or connect San Bernardino
kangaroo rats in these areas with the Lytle Creek wash population; this
area is occupied, connected, and the essential features may require
special management considerations or protection.
Comment 26: Two commenters stated that social, economic, and policy
considerations in the context of the Act's section 4(b)(2) balancing
test support excluding a larger area from the designation in two areas
within the Lytle Creek wash. The commenters suggested that there are
various benefits to excluding Lytle Development Company (LDC) lands
from the critical habitat designation. The commenters stated that
removing critical habitat from these areas would allow LDC to develop
its proposed Lytle Creek Ranch project. The commenters further stated
that LDC would then be able, through financing generated by that
project, to dedicate permanent conservation habitat for the San
Bernardino kangaroo rat.
Our Response: Lands owned by LDC contain both upland and lowland
alluvial scrub habitat that contains features essential to the
conservation of this subspecies and we appreciate LDC's willingness to
contribute to the long-term conservation of the San Bernardino kangaroo
rat. However, when performing the required analysis under section
4(b)(2) of the Act, the existence of a management plan (i.e., HCP or
other type) that considers enhancement or recovery of listed species as
its management standard is relevant to our weighing of the benefits of
inclusion versus the benefits of excluding a particular area in a
critical habitat designation. In considering the benefits of including
lands in a designation that are covered by a current HCP or other
management plan, we evaluate a number of factors to help us determine
if the plan provides equivalent or greater conservation benefit than
would likely result from consultation on a designation: (1) Whether the
plan is complete and provides protection from destruction or adverse
modification; (2) whether there is a reasonable expectation that the
conservation management strategies and actions will be implemented for
the foreseeable future, based on past practices, written guidance, or
regulations; and (3) whether the plan provides conservation strategies
and measures consistent with currently accepted principles of
conservation biology. Because habitat was not set aside and a
management plan not completed that is consistent with the above
factors, we determined that the exclusion of these areas under section
4(b)(2) of the Act based in part on potential future conservation would
be inappropriate. Further, we do not believe the relative economic
impact outweighed the conservation benefits of including these lands in
the critical habitat designation.
Comment 27: One commenter stated that the proposed rule somewhat
mischaracterizes the existing LDC restoration and conservation program.
The commenter stated that the program is managing all 217 ac (88 ha) to
benefit the San Bernardino kangaroo rat (not just 40 ac (16 ha)) within
the protected conservation area.
Our Response: We acknowledge the conservation efforts of LDC, and
in response to this comment we revised and supplemented the discussion
of the LDC conservation areas in this final rule. Please see the ``Unit
Descriptions'' section below for more information.
Comment 28: One commenter stated that additional losses of habitat
for the San Bernardino kangaroo rat are slated to occur and gave the
example that the City of Highland is proceeding with a number of
projects within currently designated and proposed critical habitat. The
commenter stated that these further reductions in the animal's habitat
underscore the need to identify all extant areas where the subspecies
exists and to include all occupied habitat in the final revised
critical habitat designation. A second commenter stated that areas
proposed by Orange County Flood Control District and the City of
Highland for development of 3,000 homes and a highway through Mill
Creek Wash lie within the proposed critical habitat boundary. A third
commenter stated that the same 3,000-home project would be placed in an
area that is one of the only places in Unit 1 (Mill Creek Wash) that
still retains fluvial input.
Our Response: We are not currently in consultation on the proposed
projects mentioned in the comment above. Any project involving a
Federal nexus which may affect a federally listed species or designated
critical habitat would require consultation with the Service to ensure
such actions would not jeopardize the continued existence of the
species or destroy or adversely modify critical habitat (see the
``Critical Habitat'' section of this final rule for a detailed
discussion). The designation of critical habitat does not affect
projects that do not have a Federal nexus; however, if a project may
result in take of a federally listed species, then the project
proponent would need to obtain an incidental take permit from the
Service to be in compliance with the Act. Mill Creek is important to
the recovery of the subspecies as it is the only large stretch of
contiguous, occupied habitat for the San Bernardino kangaroo rat within
Unit 1 that is not fragmented by development (e.g., roads, aggregate
mining pits). Furthermore, Mill Creek is the only remaining source of
alluvial sediments within Unit 1 that has not been significantly
altered by flood control structures, water diversions, or other
activities. Although we did not include the majority of Mill Creek in
our June 19, 2007, proposed revision to critical habitat, we have since
re-evaluated Mill Creek as described in the April 16, 2008, NOA in
light of several substantive public comments recommending the inclusion
of Mill Creek as critical habitat. We are including approximately 388
ac (157 ha) of Mill Creek in the final revised designation (see the
``Summary of Changes From the 2007 Proposed Rule To Revise Critical
Habitat'' section of this final rule for more information).
As discussed in our response to comment 6 above, under section
3(5)(C) of the Act, critical habitat shall not include the entire
geographical area which can be occupied by the species unless otherwise
determined by the Secretary. In developing the proposed rule to revise
critical habitat, we considered the geographical area occupied by the
subspecies at the time of listing, and within that broad geographical
area, identified those areas that, based on the best available
scientific and commercial data, contain the physical and biological
features essential to the subspecies' conservation. We recognize that
our designation of critical habitat for the San Bernardino kangaroo rat
does not encompass all known occurrences of this subspecies as noted by
the commenter. Although we are not designating all known occurrences of
the San Bernardino kangaroo rat, we believe that our final designation
is adequate to ensure the conservation of this subspecies throughout
its extant range based on the best available information at this time.
Comment 29: One commenter stated that any revisions to designated
critical habitat as proposed in the June 19, 2007, proposed rule (72 FR
33808) are premature because they fail to consider several ongoing
Federal processes that directly affect the San Bernardino kangaroo rat.
The commenter specifically identified the Wash Plan (or Plan B) as a
multiple species HCP process occurring in the Santa Ana River wash
area, to address conservation
[[Page 61949]]
of and provide incidental take coverage for the San Bernardino kangaroo
rat. The commenter also mentioned that the U.S. Army Corps of Engineers
(ACOE) is preparing a Multiple Species Habitat Management Plan, to
avoid, minimize, or offset impacts associated with the Seven Oaks Dam,
which would also include conservation strategies for the San Bernardino
kangaroo rat. The commenter stated that because Federal, State, and
local stakeholders have invested significant amounts of time in both of
these processes, it is only proper to delay designation of the final
critical habitat until the completion of these processes.
Our Response: The Service is aware of and has considered the
Federal projects mentioned in the comment above in the process of
revising designated critical habitat; however, we are under a court-
ordered timeline to submit to the Federal Register a final rule
revising critical habitat for the San Bernardino kangaroo rat by
October 1, 2008.
Comment 30: Several commenters provided information about the
proposed critical habitat Unit 2 (Lytle/Cajon Creek wash) along the
State Route 210 freeway (SR-210). Most of these comments indicated that
areas along the freeway should be removed from critical habitat because
they are developed or will soon be developed. Commenters suggested
removing areas along the length of the SR-210, and specifically
identified 100 feet along the north side of SR-210 and the south side
of SR-210 in the vicinity of the Pepper Avenue extension project.
Our Response: The revised critical habitat boundary in Unit 2
(Lytle/Cajon Creek wash) extends south to Highland Avenue, which is
north of the new SR-210 crossing of Lytle Creek. Much of the areas
around SR-210 that were commented on were not included in the proposed
revision to critical habitat because they do not meet the definition of
critical habitat. The delineated critical habitat boundary lies just
north of SR-210. We are not designating critical habitat from Highland
Avenue south in the Lytle/Cajon wash. Areas designated as critical
habitat within Lytle Creek are occupied and contain the features
essential to the conservation of the San Bernardino kangaroo rat.
Comment 31: One commenter suggested the Service reject any proposal
to remove critical habitat within the City of Highland in the area of
Greenspot Road and City Creek/Plunge Creek just east of SR-30. The
commenter stated that this area is viable, occupied habitat. The
commenter indicated that removing this area from the critical habitat
designation allows for the development of a shopping center. The
commenter indicated that removal of this area from the critical habitat
designation is not based on good science.
Our Response: The area in the vicinity of Greenspot Road between
SR-30 and Boulder Avenue/Orange Street does not support the PCEs
required by the San Bernardino kangaroo rat in the appropriate quantity
and spatial arrangement essential to the conservation of the subspecies
as it consists of habitat degraded by mining activities and development
or contains grassy fields. Furthermore, Plunge Creek at Orange Street
is completely channelized and diverted from its historical connection
with the Santa Ana River. We are aware that some areas in the vicinity
of Greenspot Road not included in this designation may be sparsely
occupied; however, we have determined that these areas do not meet the
definition of critical habitat. There is a section of relatively
undisturbed alluvial scrub habitat east of City Creek and SR-30 that we
are including in this designation. Areas that support populations, 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. Any proposed activity, including the proposed shopping center
mentioned in the comment would also be subject to the regulatory
protections afforded by the section 7(a)(2) jeopardy standard, if a
Federal nexus is involved, and the prohibitions of section 9 of the
Act.
Comment 32: One commenter stated it is reasonably foreseeable that
the proposed critical habitat will, if approved, result in significant
adverse impacts to the San Bernardino kangaroo rat. For this reason,
the commenter encouraged the Service to reconsider its position
regarding the National Environmental Policy Act (NEPA) and prepare
environmental analyses as defined by NEPA before approving this
reduction.
Our Response: It is our position that, outside the jurisdiction of
the Circuit Court of Appeals 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 in the courts of the Ninth Circuit Court of Appeals (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Comment 33: One commenter stated that due to climate change in the
future, the San Bernardino kangaroo rat will move slowly up the Lytle
and Cajon Creek wash area instead of going further south.
Our Response: We did not address potential impacts of global
climate change on this subspecies in the proposed rule because we are
not currently aware of any subspecies-specific or geographic-specific
information on this potential threat. While we do not deny that global
climate change is occurring, we cannot predict what areas might be
important for this subspecies in light of future climate changes
without on-the-ground evidence documenting range shift patterns in San
Bernardino kangaroo rat populations. The commenter expressed a general
concern for the effects of climate change on the San Bernardino
kangaroo rat, but did not provide evidence supporting a possible range
shift for this subspecies. Should additional data become available, we
may revise this critical habitat designation subject to available
funding and other conservation priorities.
Comment 34: One commenter suggested that the Etiwanda fan needs to
be retained because it is currently occupied and provides recovery
opportunities for the subspecies.
Our Response: The Etiwanda fan area is not included in this
revision to critical habitat because we have determined that this area
does not meet the definition of critical habitat. The area is
significantly degraded, largely unoccupied, and does not contain the
physical and biological features essential to the conservation of the
San Bernardino kangaroo rat. We believe that our designation of
critical habitat contains the areas necessary for the recovery and
long-term conservation of this subspecies without the inclusion of the
Etiwanda fan.
Comments From Other Federal Agencies
Comment 35: The U.S. Forest Service (USFS) commented that they
oppose the designation of critical habitat for the San Bernardino
kangaroo rat on National Forest lands. The USFS further stated that the
San Bernardino National Forest (SBNF) recently revised its Land and
Resource Management Plan (LRMP), and management direction was
incorporated that the USFS believes provides sufficient protection and
management for the San Bernardino kangaroo rat and its habitat. They
also stated that the Service concurred that these conservation measures
provide protection for this subspecies when the Service issued a non-
jeopardy biological
[[Page 61950]]
opinion on the LRMP in 2005 (Service 2005, p. 175). The USFS believes
that no additional benefit to, or protection for, this subspecies would
occur as a result of critical habitat designation of National Forest
lands, it is simply not needed in order to conserve this subspecies.
The USFS also stated that it currently has in place ``special
management considerations or protection'' for this subspecies, and that
it does not need any additional considerations or protection that
critical habitat designation of National Forest lands might provide.
The USFS also commented that designation of critical habitat
identified in the proposed rule would unnecessarily add to the USFS
workload by requiring them to conduct a separate analysis and make a
determination of effect for designated critical habitat when consulting
under section 7 of the Act.
Our Response: We determined that National Forest lands contain
physical and biological features essential to the conservation of the
San Bernardino kangaroo rat, and therefore, meet the definition of
critical habitat (see ``Criteria Used To Identify Critical Habitat''
section below). We acknowledge that the revised LRMP will benefit the
San Bernardino kangaroo rat and its habitat. The LRMP contains general
provisions for species conservation and suggests specific management
and conservation actions that will benefit this species and the
physical and biological features essential to its conservation.
Implementation of the LRMP should address known threats to this species
on National Forest lands. We appreciate and commend the efforts of the
USFS to conserve federally listed species on their lands.
The Secretary has the discretion to exclude an area from critical
habitat under section 4(b)(2) of the Act after taking into
consideration the economic impact, the impact on national security, and
any other relevant impact if he determines that the benefits of such
exclusion outweigh the benefits of designating such area as critical
habitat, unless he determines that the exclusion would result in the
extinction of the species concerned. We considered the request from the
USFS that we exclude their lands because it would unnecessarily add
work in the future to determine the effect regarding critical habitat
for actions on their lands and the fact that they had already completed
consultation under section 7(a)(2) of the Act on their revised LRMP.
As part of our section 7 consultation with the USFS on the SBNF
LRMP, the USFS has already consulted on various activities carried out
on National Forest lands including: Roads and trail management;
recreation management; special use permit administration;
administrative infrastructure; fire and fuels management; livestock
grazing and range management; minerals management; and law enforcement.
In our 2005 biological opinion on the LRMP, we determined that
implementation of the plan was not likely to jeopardize the continued
existence of the San Bernardino kangaroo rat or adversely modify
critical habitat designated in 2002 for this subspecies. Since the USFS
has already consulted with us on potential impacts to critical habitat
related to the activities outlined in the LRMP, the designation of
revised critical habitat should not require additional consultation for
those activities.
Based on the record before us, we have elected not to exclude these
lands and are designating National Forest lands that meet the
definition of critical habitat for the San Bernardino kangaroo rat. We
will continue to consider on a case-by-case basis in future critical
habitat rules whether to exclude particular Federal lands from such
designation when we determine that the benefits of such exclusion
outweigh the benefits of their inclusion.
Comments Related to the Draft Economic Analysis
Comment 36: One commenter stated the Service needs to include all
occupied and unoccupied, historical habitat in the economic analysis
(and final critical habitat), and not rely on the flawed draft critical
habitat as the basis for the economic analysis.
Our Response: We believe our final designation accurately describes
all specific areas meeting the definition of critical habitat for the
San Bernardino kangaroo rat. As discussed in the ``Criteria Used To
Identify Critical Habitat'' section of this final rule and response to
comments 3 and 6 above, we delineated critical habitat for the San
Bernardino kangaroo rat using the following criteria: (1) Areas
occupied by the subspecies at the time of listing, and currently
occupied, within the historical range of the subspecies (2) areas
retaining fluvial dynamics containing one or more of the PCEs for the
subspecies; (3) areas supporting a core population of the subspecies;
and (4) areas demographically disconnected from the largest
populations, but which may be important for the long-term recovery of
the subspecies. Application of these criteria results in the
determination of the physical and biological features that are
essential to the conservation of this subspecies, identified as the
species' PCEs laid out in the appropriate quantity and spatial
arrangement. Thus, not all areas supporting the identified PCEs will
meet the definition of critical habitat.
We recognize that our designation does not encompass all known
occurrences of this subspecies as noted by the commenter. Specifically,
we did not include in the final designation small, isolated areas of
degraded habitat or areas devoid of fluvial processes because such
areas likely only support unsustainable populations that would not
contribute to the recovery of the subspecies. Further, we designate
critical habitat in areas outside the geographical area presently
occupied by a species only when a designation limited to its present
range would be inadequate to ensure the conservation of the species (50
CFR 424.12(e)). Accordingly, when the best scientific and commercial
data do not demonstrate that the conservation needs of the species
require designation of critical habitat outside of occupied areas, we
will not designate critical habitat outside the geographical area
occupied by the species. Although we are not designating all known
occurrences of the San Bernardino kangaroo rat, we believe the areas we
have identified as meeting the definition of critical habitat, and
which are included in the final revised critical habitat designation,
are adequate to ensure the conservation of the subspecies throughout
its extant range. Species that are protected across their ranges are
expected to have lower likelihoods of extinction (Soule and Simberloff
1986, pp. 32-35; Scott et al. 2001, pp. 1297-1300); we are designating
multiple locations across the range of the subspecies to prevent range
collapse.
We recognize that the designation of critical habitat may not
include all of the habitat that may eventually be determined to be
necessary for the recovery of the subspecies, and critical habitat
designations do not signal that habitat outside the designation is
unimportant or may not contribute to recovery. We do not agree that the
proposed designation is flawed, and maintain it was appropriate to base
the draft economic analysis on the areas included in the proposed rule.
Comment 37: One commenter asserts that the Service must look only
at the incremental cost of the proposed designation and not at the
costs attributable to listing alone when considering exclusion of
habitat areas.
[[Page 61951]]
Our Response: The U.S. Office of Management and Budget's (OMB)
guidelines for conducting economic analysis of regulations direct
Federal agencies to measure the costs of a regulatory action against a
baseline, which it defines as the ``best assessment of the way the
world would look absent the proposed action.'' In other words, the
baseline includes the existing regulatory and socio-economic burden
imposed on landowners, managers, or other resource users potentially
affected by the designation of critical habitat. Impacts that are
incremental to that baseline (i.e., occurring over and above existing
constraints) are attributable to the proposed regulation. Significant
debate has occurred regarding whether assessing the impacts of the
Service's proposed regulations using this baseline approach is
appropriate in the context of critical habitat designations.
In order to address the divergent opinions of the courts and
provide the most complete information to decision-makers, the economic
analysis reports both: (a) The baseline impacts of SBKR conservation
from protections afforded the species absent critical habitat
designation; and (b) the estimated incremental impacts precipitated
specifically by the designation of critical habitat for the species.
Summed, these two types of impacts comprise the fully co-extensive
impacts of San Bernardino kangaroo rat conservation in areas considered
for critical habitat designation.
Incremental effects of critical habitat designation are determined
using the Service's December 9, 2004, interim guidance on ``Application
of the `Destruction or Adverse Modification' Standard Under Section
7(a)(2) of the Endangered Species Act'' and information regarding what
potential consultations and project modifications may potentially occur
as a result of critical habitat designation over and above those
associated with the listing. In Gifford Pinchot Task Force v. United
States Fish and Wildlife Service, the Ninth Circuit invalidated the
Service's regulation defining destruction or adverse modification of
critical habitat, and the Service no longer relies 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, the Service determines destruction or adverse modification on
the basis of whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional to serve
its intended conservation role for the species. A detailed description
of the methodology used to define baseline and incremental impacts is
provided later in this section.
Comment 38: Two commenters request that the Service estimate the
economic benefits of critical habitat designation, including positive
health effects associated with foregone air pollution, water
conservation, open space preservation, protection of other species, and
savings from reduced flood plain development.
Our Response: Under Executive Order 12866, OMB directs Federal
agencies to provide an assessment of both the social costs and benefits
of proposed regulatory actions. 22 OMB's Circular A-4 distinguishes two
types of economic benefits: direct benefits and ancillary benefits.
Ancillary benefits are defined as favorable impacts of a rulemaking
that are typically unrelated, or secondary, to the statutory purpose
(i.e., direct benefits) of the rulemaking.
In the context of critical habitat, the primary purpose of the
rulemaking (i.e., the direct benefit) is the potential to enhance
conservation of the species. The published economics literature has
documented that social welfare benefits can result from the
conservation of endangered and threatened species. In its guidance for
implementing Executive Order 12866, OMB acknowledges that it may not be
feasible to monetize, or even quantify, the benefits of environmental
regulations due to either an absence of defensible, relevant studies or
a lack of resources on the implementing agency's part to conduct new
research. Rather than rely on economic measures, the Service believes
that direct benefits of the proposed rule are best expressed in
biological terms that can be weighed against the expected cost impacts
of the rulemaking.
Critical habitat designation may also generate ancillary benefits.
Critical habitat aids in the conservation of species specifically by
protecting the primary constituent elements on which the species
depends. To this end, critical habitat designation can result in
maintenance of particular environmental conditions that may generate
other social benefits aside from the preservation of the species. That
is, management actions undertaken to conserve a species or habitat may
have coincidental, positive social welfare implications (e.g.,
increased recreational opportunities in a region). Although not the
primary purpose of critical habitat, ancillary benefits may result in
gains in employment, output, or income that may offset the direct,
negative impacts to a region's economy resulting from actions to
conserve a species or its habitat.
It is often difficult to evaluate the ancillary benefits of
critical habitat designation. To the extent that ancillary benefits of
the rulemaking may be captured by the market through an identifiable
shift in resource allocation, they are factored into the overall
economic impact assessment in this report. For example, if habitat
preserves are created to protect a species, the value of existing
residential property adjacent to those preserves may increase,
resulting in a measurable positive impact. Where data are available,
this analysis attempts to capture the net economic impact (i.e., the
increased regulatory burden less any discernable offsetting market
gains), of species conservation efforts imposed on regulated entities
and the regional economy.
Comment 39: One commenter expressed concern that the economic
analysis relies too heavily on economic modeling to predict the impacts
of the proposed rule on development. The economic analysis does not
account for local factors, such as the presence of floodplains in San
Bernardino kangaroo rat habitat and a slow housing market, which will
depress development regardless of the critical habitat designation. In
particular, other Federal laws and flood insurance policies, state law,
and local land use policies generally prohibit development in
floodplains.
Our Response: As described in Appendix D, Section D.2 of the DEA,
the analysis relies on growth projection data provided by the Southern
California Association of Governments (SCAG), which is widely regarded
as the most reliable and up-to-date source of this information.
Section 3.3.3.2 of the DEA describes the geographic scope of the
analysis of impacts on development. The analysis considers the impacts
on projected development in all privately owned, unprotected lands
within the area proposed for final critical habitat designation. When
projecting growth within the area of proposed critical habitat, flood
plains were removed from the area of the analysis for the reasons
expressed by the commenter. However, portions of the proposed critical
habitat are located in areas outside of the floodplain boundaries. The
area of proposed critical habitat includes uplands and low-lying areas
that are not in the floodplain.
Comment 40: One commenter argues that there is no basis or evidence
that the costs of protecting the San Bernardino kangaroo rat will
increase to $10.6 million per year.
[[Page 61952]]
Our Response: As shown in Table ES-1 of the DEA, the baseline cost
of protecting the San Bernardino kangaroo rat and its habitat is
projected to be $15.2 million on an annualized basis. Additionally,
incremental costs attributable to the designation of critical habitat
are predicted to total $4.3 million on an annualized basis. It is
unclear how the commenter's estimate of $10.6 million per year was
obtained. As discussed on pages 2-3 and 2-7 of the DEA, the baseline
costs are driven by foregone revenues to Eastern Municipal Water
District of scaling back the Hemet/San Jacinto Recharge and Recovery
Program by 30,000 acre feet per year. The costs associated with these
activities are based on information provided by the Director of
Engineering at Eastern Municipal Water District. The impacts of scaling
back the groundwater recharge program will occur in the future; no
comparable reduction in groundwater recharge occurred in the past.
Therefore, future annual costs of protecting the San Bernardino
kangaroo rat are expected to be higher than in the past.
Comment 41: One commenter states that the DEA grossly inflates
administrative and project modification costs, and cites as an example
an estimate on page 45 of the DEA that the Bureau of Land Management
(BLM) will spend $200,000 per year to install signs and enforce
existing closures prohibiting off-road vehicle use on BLM lands.
Furthermore, the commenter states that if incurred, these costs should
not be attributed to the San Bernardino kangaroo rat. Finally, the
commenter asserts that purchasing signage will have a positive regional
effect on the economy that should off-set the costs.
Our Response: The source of the commenter's example is unclear. The
DEA does not have a page 45 or Section 4-5, nor does it estimate the
costs of signage. To address the overall concern expressed in the
comment, the DEA analyzes how entities will alter their behavior to
conserve the San Bernardino kangaroo rat. If an agency will undertake a
conservation measure for the benefit of the San Bernardino kangaroo
rat, then the cost of that action is considered attributable to the San
Bernardino kangaroo rat. Allocating economic resources to the
conservation measure and away from other activities represents an
opportunity cost. Conservation measures may have positive
distributional effects; however, paying for the conservation measure
essentially transfers resources away from other entities that would
have incurred the distributional gains.
Comment 42: One commenter stated that the DEA does not address any
of the economic benefits of the designation of critical habitat.
Our Response: See our response to comment 38 above.
Comment 43: One commenter was concerned that the DEA does not
analyze the economic impacts of the lands the Service added to the
critical habitat designation.
Our Response: The Addendum to the Economic Analysis of Critical
Habitat Designation for San Bernardino Kangaroo Rat, which analyzes the
additional lands proposed for critical habitat designation, was made
available to the public for review and comment on July 29, 2008.
Comment 44: One commenter noted that the housing projections in the
DEA do not account for LDC plans to develop 5,800 houses in Unit 2.
Our Response: We revised the development projections in the Final
Economic Analysis (FEA) (see pages 2-11 to 2-15 and pages 3-4 to 3-11
of the FEA) to account for LDC's planned development in Unit 2.
Comment 45: Two commenters explained that the DEA significantly
underestimates economic impacts in Unit 2 because it does not account
for LDC's development plans.
Our Response: We recalculated impacts in the FEA to account for
LDC's home development projections. See pages 2-14 to 2-15 and pages 3-
10 to 3-11 of the FEA for the revised impacts in Unit 2.
Comment 46: Two commenters pointed out that LDC is intending to
develop 647 acres of its property that is mostly within upland San
Bernardino kangaroo rat habitat. According to the commenter,
designation of critical habitat on these 647 acres would place
uncertainty over LDC's economic use and development potential.
Our Response: The FEA includes all costs associated with the impact
of critical habitat on LDC's 647 acres (see pages 2-14 and 3-10 of the
FEA). The economic analysis accounts for lost land values, delay, and
other costs related to regulatory uncertainty.
Comment 47: One commenter argued that the DEA incorrectly assumes
that there is no limitation on the stock of land available for
mitigation purposes. The commenter suggested that the DEA will need to
either identify the location and amount of suitable San Bernardino
kangaroo rat habitat that is available for use as future San Bernardino
kangaroo rat habitat mitigation land or the analysis in the DEA will
need to be revised to factor in the true effects of there being only a
small and finite amount of suitable San Bernardino kangaroo rat habitat
available for use as mitigation land.
Our Response: While we agree that only a finite amount of San
Bernardino kangaroo rat habitat exists, there is sufficient evidence
from conservation banks (see pages 2-11 to 2-12 of the FEA) that ample
land exists within and outside of conservation banks to accommodate
potential future compensation for impacts to the San Bernardino
kangaroo rat and its habitat.
Comment 48: One commenter asserted the DEA incorrectly estimates
the per acre cost of San Bernardino kangaroo rat mitigation habitat.
The commenter cited evidence that the cost of mitigation land has gone
up in the last ten years. The commenter reasoned that one can expect
the cost of mitigation land to continue to rise in the future.
Our Response: We consulted with local conservation bank owners and
consultants familiar with the area to determine the likely future cost
of conservation bank credits (see footnote 56 in the DEA). We used the
best available conservation bank prices to estimate the future costs of
conservation. We confirmed these prices with conservation bank owners
for the FEA (see page 2-12 of the FEA).
Comment 49: A commenter stated that the evaluation of the economic
cost of this proposed designation in the DEA is limited by defining the
time period of the economic analysis as the next 22 years.
Our Response: As explained on page 1-17 of the DEA, the economic
analysis calculates impacts based on activities that are ``reasonably
foreseeable.'' The standard framework for economic analyses calculates
impacts in a twenty year timeframe. Future impacts were calculated in
the DEA through the year 2030 to be consistent with Southern California
Association of Governments projections.
Comment 50: A commenter criticized the DEA for overvaluing the
impacts of critical habitat. The commenter asserts that all of the
costs would be required even if critical habitat had not been
designated because the San Bernardino kangaroo rat currently lives in
those areas.
Our Response: We disagree with the commenter's assertion that all
potential costs would be required even without critical habitat. The
DEA quantifies the baseline impacts, defined as those future impacts
that result from listing and other conservation efforts for the San
Bernardino kangaroo rat. Baseline impacts include costs that would be
required because the San Bernardino
[[Page 61953]]
kangaroo rat is found in the area. The DEA also quantifies incremental
impacts, which are impacts that would not exist but for the designation
of critical habitat. These costs occur above and beyond those
associated with San Bernardino kangaroo rats living in the area.
Comment 51: One commenter pointed to page 11 of the Draft Addendum
to the Economic Analysis, stating that a proponent agency does not have
the legal authority to determine if a project will adversely affect a
federally endangered species or its habitat. The commenter noted that
these determinations are required to have the Service's concurrence.
Our Response: The commenter was concerned with the following
passage on page 11 of the Draft Addendum: ``[San Bernardino County
Flood Control District (SBCFCD)] maintains in-house biologists who
review all proposed projects to determine whether the project may
affect the San Bernardino kangaroo rat or its habitat. San Bernardino
County Flood Control District self-regulates by avoiding projects in
critical habitat that the biologists determine may adversely affect the
San Bernardino kangaroo rat or its habitat. If SBCFCD determines that
the project is warranted despite the potential adverse effects to the
San Bernardino kangaroo rat (e.g., if there is a potential for
substantial flood damage), then SBCFCD will undertake the project and
consult with the Service.''
As explained in this passage, SBCFCD avoids projects that it thinks
may warrant consultation with the Service for impacts to the San
Bernardino kangaroo rat or its habitat. San Bernardino County Flood
Control District consults with the Service when it undertakes a project
in an area occupied by San Bernardino kangaroo rats or within the San
Bernardino kangaroo rat critical habitat boundaries. San Bernardino
County Flood Control District does not determine if a project will or
will not adversely affect a federally endangered species or its habitat
independently from the Service.
Summary of Changes From the 2002 Critical Habitat Designation
We stated in our April 23, 2002 rule that we designated ``33,295 ac
(13,485 ha)'' of critical habitat for the San Bernardino kangaroo rat.
When corrected for summing, rounding, and conversion errors, the 2002
designation of critical habitat totaled 33,291 ac (13,472 ha). The
areas identified in this final rule constitute a revision to the 2002
designation. In this final rule we are designating 7,779 ac (3,148 ha)
of land in Riverside and San Bernardino counties, California. Below we
describe the changes in each unit between the 2002 final critical
habitat rule, the 2007 revised proposed critical habitat rule, and this
2008 final revised critical habitat rule for the San Bernardino
kangaroo rat (summarized in Table 1). Discrepancies in reported
acreages between the 2002 designation and this final revision are due
to refinements in our ability to more precisely calculate acreages. The
entire final revised critical habitat designation (i.e., 7,779 ac
(3,148 ha)) is contained within the area included in the 2002 final
critical habitat designation.
Our revised critical habitat designation is substantially smaller
than the existing designation. Updated information that became
available to us in the five years since the previous designation
indicates that we erroneously designated some areas. Improved and
updated biological information submitted to our office and gained
during site visits in December 2006 and January 2007 allowed us to: (1)
Revise the criteria used to identify critical habitat and focus
attention on core populations in undisturbed habitat with retained
fluvial dynamics; (2) more specifically define and map areas supporting
the physical or biological features for this subspecies; and (3)
precisely ground-truth areas included in the 2002 critical habitat
designation. As described in detail below, our review of updated
information led us to revise our criteria used to identify critical
habitat (see ``Criteria Used To Identify Critical Habitat'' section)
and resulted in our removal of several areas that were previously
designated as we determined that these areas do not meet the definition
of critical habitat.
The 2000 proposed rule and the 2002 critical habitat designation
describe the geographical area occupied by the San Bernardino kangaroo
rat at the time it was listed in 1998, including the Santa Ana River,
Lytle Creek, Cajon Creek, San Jacinto River, City Creek, Etiwanda fan
and wash, Reche Canyon and South Bloomington. All units designated as
critical habitat in 2002 (i.e., Santa Ana River, Lytle/Cajon/Cable
creeks, San Jacinto River/Bautista Creek, and Etiwanda fan) were
considered occupied at the time of listing and designation. The
background section of the 2002 critical habitat designation provides
justification explaining how the original listing rule significantly
underestimated the amount of area occupied by the subspecies at the
time of listing and concludes that a minimum of 32,507 ac (as
mathematically converted), or 13,155 ha, were occupied at the time of
listing. The criteria utilized for the 2002 designation identified
areas that supported few occurrence records for inclusion in the
designation. We have now determined, based on the best currently
available information, that such areas of low density occupation (or
sporadic occupancy) are not likely to contribute to the long-term
conservation of this subspecies as they do not support core
populations, are not capable of supporting a core population in the
near future, and they provide little protection against stochastic
events. Areas that contain the physical and biological features that
are essential to the conservation of this subspecies, identified as the
subspecies' PCEs laid out in the appropriate quantity and spatial
arrangement, are those areas capable of supporting a core population of
San Bernardino kangaroo rats and providing protection against
stochastic events. Therefore, some areas supporting low density or
sporadic occupancy designated in 2002 were removed from this revised
designation. Finally, we employed refined mapping techniques using
updated aerial imagery in the current revision, which allowed us to
more precisely map areas that contain PCEs. This refined approach
allowed us to remove areas that do not meet the definition of critical
habitat.
The main differences in this revised designation compared to the
2002 critical habitat designation include the following:
(1) On the basis of our new analyses involving the factors
described above, we determined that portions of the 2002 (i.e.,
existing) Unit 1 (Santa Ana River), Unit 2 (Lytle and Cajon Creeks),
Unit 3 (San Jacinto River), and all of Unit 4 (Etiwanda Alluvial Fan
and Wash) do not contain PCEs in the appropriate quantity and spatial
arrangement essential to the conservation of the San Bernardino
kangaroo rat. Therefore, we are not including these areas in our
revision to critical habitat. The following paragraphs provide unit by
unit explanations why areas previously designated as critical habitat
do not meet the definition of critical habitat for the San Bernardino
kangaroo rat.
We removed approximately 4,658 ac (1,885 ha) within Unit 1 (Santa
Ana River) from our revision to critical habitat, largely because these
areas do not contain the physical and biological features that are
essential to the conservation of this subspecies, identified as the
subspecies' PCEs laid out in the appropriate quantity and spatial
arrangement. Below we describe the six general areas removed and the
[[Page 61954]]
habitat status in those areas. Occurrence data from these six areas
indicate that none of these areas currently support or are capable of
supporting core populations in the near future. The inability to
support a core population further underscores the habitat data
indicating that these areas do not contain the physical and biological
features that are essential to the conservation of the San Bernardino
kangaroo rat. First, areas along Mill Creek, especially to the north,
do not provide suitable habitat for this subspecies. Second, a flood
control levee south of Mill Creek cut off habitat from fluvial
processes, which resulted in overgrown vegetation and water retention
basins that are unsuitable habitat conditions for the subspecies.
Third, the stretch of the Santa Ana River below Seven Oaks Dam and
areas to the north and west of a large barrow pit are cut off from
fluvial processes and water retention basins have been constructed in
the area. Fourth, a large area within the 2002 critical habitat
designation near Plunge Creek extending south and west to the
confluence of City Creek with the Santa Ana River is degraded due to
mining operations, flood control structures (and the subsequent loss of
fluvial influence necessary to maintain habitat), and water retention
basins. Fifth, the habitat downstream of Tippecanoe Avenue Bridge is
heavily channelized with steep banks inhibiting the use of upland
habitat; we do not have data indicating that this area is occupied.
Sixth, there are also a number of smaller areas of degraded habitat
around the periphery of the 2002 critical habitat designation that are
not included in this revision to critical habitat because these areas
do not contain the physical and biological features essential to the
conservation of this subspecies.
We removed approximately 9,284 ac (3,757 ha) within Unit 2 (Lytle
and Cajon Creeks) from our revision to critical habitat, largely
because these areas do not contain the physical and biological features
that are essential to the conservation of this subspecies. Below we
describe the six general areas removed and the habitat status in those
areas. Occurrence data from these six areas indicate that none of these
areas currently support or are capable of supporting core populations
in the near future. The inability to support a core population further
underscores the habitat data indicating that these areas do not contain
the physical and biological features that are essential to the
conservation of the San Bernardino kangaroo rat. First, one separate
parcel northeast of the main Lytle/Cajon Creek unit (labeled as Unit 2
B in the 2002 critical habitat rule) contains habitat that is degraded
and this area is largely unoccupied. Second, the southernmost portion
of Lytle Creek contains habitat that is degraded through surface mining
and flood control structures, making this area unsuitable for the
subspecies. Third, the upper reaches of both Lytle and Cajon Creeks
contain large rocky substrates that do not provide habitat for this
subspecies and we have no recent occurrence data for these upstream
areas. Fourth, portions of habitat along the Lytle Creek arm are
degraded from sand and gravel mining operations and associated
infrastructure. Fifth, after formal consultation with the Service was
completed, approximately 670 ac (271 ha) within the 2002 critical
habitat designation that is north of Lytle Creek and east of I-15 is
currently under development for the Lytle Creek North development
project. Sixth, a large expanse of a remnant flood plain south of Lytle
Creek and I-15 and west of Riverside Avenue is partially developed and
does not contain the PCEs for the subspecies. It was suggested in the
2002 critical habitat designation that this area could provide
connectivity with the Etiwanda fan; however, this area is void of
fluvial influence, does not support a core population, and is cut off
from Lytle Creek and the Etiwanda fan by extensive roadways. Therefore,
we believe that demographic or genetic connectivity through the remnant
flood plain south of Lytle Creek is unlikely. Because these areas do
not contain the physical and biological features that are essential to
the conservation of this subspecies, we are not including them in the
revision to critical habitat.
A portion of a separate parcel designated in 2002 as part of Unit 2
is now designated as Unit 4 (Cable Creek Wash) in this revised critical
habitat designation (see Table 1 and the Unit Descriptions section).
We removed approximately 4,757 ac (1,925 ha) within Unit 3 (San
Jacinto River) from our revision to critical habitat, largely because
these areas do not contain the physical and biological features that
are essential to the conservation of this subspecies. Below we describe
the five general areas removed and the habitat status in those areas.
Occurrence data from these five areas also indicate that none of these
areas currently support or are capable of supporting core populations
in the near future. The inability to support a core population further
underscores the habitat data indicating that these areas do not contain
the physical and biological features that are essential to the
conservation of the San Bernardino kangaroo rat. First, portions of
Bautista Creek and the downstream reach of the San Jacinto River are
largely channelized and do not contain the PCEs or provide suitable
habitat for the San Bernardino kangaroo rat. Second, we included in the
2002 critical habitat designation the downstream portion of the San
Jacinto River (downstream of State Route 79) because we believed the
area contained essential physical and biological features that would
reduce risks to the subspecies from stochastic events. Based on our
evaluation of the best scientific information currently available, we
no longer consider this area to meet the definition of critical habitat
because site visits have revealed that this channelized section of the
San Jacinto River is less alluvial and more riparian in nature, and
thus is unlikely to reduce the risks from stochastic events and does
not contain the physical and biological features essential to the
conservation of this subspecies. Third, the channelized areas of the
San Jacinto River and Bautista Creek prevent connectivity with the core
population in the San Jacinto wash. Fourth, at the time of the 2002
critical habitat rule, we believed that Tribal lands in Unit 3 were
occupied, despite a lack of occurrence data for these areas. We
believed this because the Tribal lands were continuous with adjacent
areas of habitat in the San Jacinto River known to be occupied;
however, we still do not have occurrence data or habitat condition data
for the two tributaries on Tribal land north of the San Jacinto wash
and are not designating critical habitat on Tribal lands in this
revised critical habitat designation (see ``Government-to-Government
Relationship with Tribes'' section). Fifth, in the eastern most
(upstream) portion of the San Jacinto River that was designated as
critical habitat in 2002, we do not have occurrence data to indicate
that the area is occupied or supports a core population of San
Bernardino kangaroo rats. Based on the best scientific information
currently available, we no longer believe these areas contain the
physical and biological features that are essential to the conservation
of this subspecies, and are not including them in the revision to
critical habitat.
A portion of a separate parcel designated as part of Unit 3 in 2002
is now designated as Unit 5 (Bautista Creek) in this revised critical
habitat designation (see Table 1 and the ``Unit Descriptions''
section).
We removed approximately 4,820 ac (1,951 ha) within Unit 4
(Etiwanda Alluvial Fan and Wash) from our
[[Page 61955]]
revision to critical habitat, largely because these areas do not
contain the physical and biological features that are essential to the
conservation of this subspecies. In the 2002 critical habitat rule, we
stated that the Etiwanda fan was likely occupied by a small remnant
population of the subspecies, but urban development and existing and
proposed flood control structures will preclude the occurrence of
future natural fluvial processes in portions of the unit. Additionally,
we stated that despite these conditions, the San Bernardino kangaroo
rat persists in some areas of the unit. Since the 2002 critical habitat
designation, flood control structures and urban development have
continued to alter the natural flood regime of this alluvial fan
resulting in poor habitat conditions. Occurrence data from these areas
also indicates that none of these areas currently support or are
capable of supporting core populations in the near future. The
inability to support a core population further underscores the habitat
data indicating that these areas do not contain the physical and
biological features that are essential to the conservation of the San
Bernardino kangaroo rat. Furthermore, site visits confirmed that
occupied areas within this unit do not contain the PCEs in the
appropriate quantity and spatial arrangement necessary to sustain a
core population of this subspecies into the future. Connectivity with
the nearest core population in Unit 2 is precluded by development and
roadways. Because these areas do not contain the physical and
biological features that are essential to the conservation of this
subspecies, we are not including them in the revision to critical
habitat.
(2) We re-evaluated and revised the PCEs as needed in light of
applicable case law and current Service guidelines and policies. We
revised the PCEs to provide more specificity with regard to the
location of and necessity for suitable soil types, vegetative habitat,
and upland areas related to the biological needs of the subspecies. We
also included a range of the preferred percentage of vegetative cover.
We note that revisions to the PCEs alone did not result in the removal
of existing critical habitat from this revised critical habitat
designation, nor did it result in the identification of areas outside
the 2002 designation that meet the definition of critical habitat.
(3) In the 2002 critical habitat mapping process, we used aerial
photography at a scale of 1:24,000 and 2001 digital orthophotography.
In the process of mapping and delineating boundaries for this revised
critical habitat designation we used USDA NAIP 2005, 1 meter True Color
Aerial Photography. This updated aerial imagery allowed us to more
accurately and precisely delineate boundaries of critical habitat.
(4) In addition to the areas that we removed from the 2002
designation in this final revision to critical habitat, we also
excluded approximately 2,917 ac (1,180 ha) under section 4(b)(2) of the
Act (see ``Summary of Changes From the 2007 Proposed Rule To Revise
Critical Habitat'' and ``Exclusions Under Section 4(b)(2) of the Act''
sections of this final rule for detailed discussion of the exclusions).
Table 1--Changes Between the April 23, 2002, Critical Habitat Designation, the June 19, 2007, Proposed Designation, and This Final Revised Designation
--------------------------------------------------------------------------------------------------------------------------------------------------------
2007 proposed
2002 designation of revision to the 2008 final revised
Critical habitat unit in this final County Area identification critical habitat (67 critical habitat critical habitat
rule used in this rule FR 19812) and ac (ha) designation (72 FR designation and ac
33808) and ac (ha) (ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Santa Ana River Wash............ San Bernardino........ Plunge Creek.......... All 3 areas included Small section All 3 areas included
in Unit 1; 8,935 ac proposed as part of as Unit 1; 3,258 ac
(3,616 ha). Unit 1; 3,623 ac (1,318 ha).
(1,466 ha) \3\.
Mill Creek............ ditto................ Considered not to be ditto.
essential; not
proposed \3\.
Santa Ana River and ditto................ Included as part of ditto.
City Creek. Unit 1; 3,623 ac
(1,466 ha).
2. Lytle/Cajon Creek Wash.......... San Bernardino........ Lytle Creek and Cajon Both areas included Included as part of Included as Unit 2;
Creek. in Unit 2; 13,970 ac Unit 2; 4,686 ac 3,421 ac (1,384 ha).
(5,653 ha). (1,896 ha).
Cable Creek........... ditto................ Considered not to be Included as Unit 4;
essential; not 483 ac (195 ha).
proposed \3\.
3. San Jacinto River Wash.......... Riverside............. San Jacinto River..... Both areas included Included as Unit 3; Included as Unit 3;
in Unit 3; 5,565 ac 769 ac (311 ha). 506 ac (205 ha).
(2,252 ha).
Bautista Creek........ ditto................ Considered not to be Included as Unit 5;
essential; not 111 ac (45 ha).
proposed \3\.
4. Cable Creek Wash................ San Bernardino........ Cable Creek........... Included as part of Considered not to be Included as Unit 4;
Unit 2; 13,970 ac essential; not 483 ac (195 ha).
(5,653 ha). proposed \3\.
5. Bautista Creek.................. Riverside............. Bautista Creek........ Included as part of Considered not to be Included as Unit 5;
Unit 3; 769 ac (311 essential; not 111 ac (45 ha).
ha). proposed \3\.
Etiwanda Alluvial Fan \1\.......... San Bernardino........ Etiwanda Alluvial Fan. Unit 4; 4,820 ac Considered not to be Determined not to be
(1,950 ha). essential; not essential.
proposed.
[[Page 61956]]
Totals......................... 33,291 ac \2\ (13,472 9,078 ac (3,674 ha).. 7,779 ac (3,148 ha).
ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The Etiwanda Alluvial Fan was considered Unit 4 in the 2002 final critical habitat rule (67 FR 19812); however, the Cable Creek Wash is now
considered Unit 4 in this final revised critical habitat rule.
\2\ The 2002 rule incorrectly stated that ``33,295 (13,474 ha)'' were designated.
\3\ These areas were added to proposed critical habitat in the April 16, 2008, NOA (73 FR 20581).
Summary of Changes From the 2007 Proposed Rule To Revise Critical
Habitat
The areas identified in this final revised rule also constitute a
revision of the areas we proposed to designate as critical habitat for
the San Bernardino kangaroo rat on June 19, 2007 (72 FR 33808). In
light of substantial public comments and a revision of our criteria
used to identify critical habitat, we reevaluated and included in this
final rule four areas that were not included in the 2007 proposed rule.
These areas (described below) include Mill Creek and Plunge Creek in
Unit 1, and Cable Creek and Bautista Creek in Units 4 and 5. These
additions to proposed critical habitat were announced in the April 16,
2008, NOA (73 FR 20581). The reduction in total area from the 2007
proposed critical habitat designation is primarily the result of
exclusions of habitat under section 4(b)(2) of the Act (described
below). The main differences between the 2007 proposed critical habitat
rule and this final rule include the following:
(1) During the first and second comment periods for the proposed
rule, we received significant comments from the public, including
biologists familiar with the San Bernardino kangaroo rat, which led us
to reevaluate and revise our criteria used to identify critical
habitat. Please see the ``Changes to Proposed Revised Critical
Habitat'' section of the April 16, 2008, NOA (73 FR 20581), and the
``Criteria Used To Identify Critical Habitat'' section of this final
rule for more information on our revised criteria.
(2) During the first and second comment periods for the proposed
rule, we received significant comments from the public, including
biologists familiar with the San Bernardino kangaroo rat, on areas
essential to the subspecies that should be included in the designation.
As a result of these comments, new information received, and revision
of the criteria used to identify critical habitat, we reevaluated the
following areas: Mill Creek, Plunge Creek (including areas providing
habitat connection between the Plunge Creek wash and Santa Ana River
wash), Cable Creek wash, and Bautista Creek. All of these areas are
were designated as critical habitat for the San Bernardino kangaroo rat
in 2002 (see 50 CFR 17.95(a); 67 FR 19812, April 23, 2002); however, we
did not propose these areas as critical habitat in the June 19, 2007,
proposed revision to critical habitat (72 FR 33808). Below we describe
each area we reevaluated, explain why we did not include the area in
the 2007 proposed rule, and explain why we are including these areas in
the final revised designation of critical habitat.
Mill Creek
Mill Creek flows into and joins the Santa Ana River wash (Unit 1)
in the eastern side of the unit. We did not include the Mill Creek area
in the 2007 proposed rule (72 FR 33808), although we indicated that it
was considered important to the subspecies by contributing fluvial
dynamics to the Santa Ana River wash. At the time of the proposed
revised rule, we had limited survey data to indicate Mill Creek was
occupied by the San Bernardino kangaroo rat. Furthermore, we determined
this area contained large expanses of unsuitable habitat. As such, we
did not include the majority of lower Mill Creek in the June 19, 2007,
proposed revision to critical habitat.
During the public comment period, we received a number of comments
highlighting the importance of Mill Creek as an area not only occupied
by the San Bernardino kangaroo rat connected to and contiguous with the
core population in the Santa Ana wash, but also indicating that the
area contains the physical and biological features essential to the
conservation of this subspecies. Upon receiving comments from the
public about Mill Creek, we reevaluated our data in this area. Evidence
of extensive burrowing activity observed by Service biologists
indicates this area is occupied by kangaroo rats, and live-trapping
confirms that Mill Creek is occupied by the San Bernardino kangaroo rat
subspecies. Based on this information, we determined that the reach of
Mill Creek occupied by the San Bernardino kangaroo rat to its
confluence with the Santa Ana River is important to the recovery of the
subspecies because it is the only large stretch of contiguous, occupied
habitat for the San Bernardino kangaroo rat within Unit 1 that is not
fragmented by development (e.g., roads, aggregate mining pits).
Further, we confirmed that habitat at Mill Creek is connected to and
contiguous with habitat supporting the core population in Unit 1, and
therefore, San Bernardino kangaroo rats inhabiting Mill Creek are part
of the Santa Ana River wash core population.
We also received comments about the importance of Mill Creek as a
source of sediment through natural fluvial dynamics to the majority of
the Santa Ana River wash (Unit 1). Existing infrastructure (e.g.,
levees, culverts, concrete-lined channels, bridge abutments and other
fill) affects the function of the Santa Ana River and its tributaries
within the historical and current range of this subspecies. As a
result, the historical floodplain dynamics within the upper Santa Ana
River watershed are permanently altered (MEC 2000, pp. 175-176).
Periodic flooding provides natural scour and sediment deposition,
decreases vegetation density and cover, and naturally maintains the
alluvial sage scrub that supports this subspecies. Mill Creek is the
only remaining source of alluvial sediments remaining within Unit 1
that has not been significantly altered by flood control structures,
water diversions, or other activities. Although the Santa Ana River is
incised just downstream from its confluence with Mill Creek, floodplain
elevations downstream (e.g., downstream of Opal Street in Mentone)
allow overbank scour
[[Page 61957]]
and sediment deposition during even small- to moderate-intensity
storms. The periodic deposition of sediments from Mill Creek helps to
naturally maintain the soil and alluvial fan sage scrub (i.e., the PCEs
upon which the survival and recovery of the San Bernardino kangaroo rat
in Unit 1 depend) within critical habitat along the Santa Ana River as
suitable habitat to support the core population of San Bernardino
kangaroo rats within this unit. We determined that this area of Mill
Creek meets the definition of critical habitat, and we are including
388 ac (157 ha) of Mill Creek in the final revision to critical habitat
for Unit 1.
Plunge Creek
Plunge Creek is located north of the main stem of the Santa Ana
River in Unit 1 and is largely isolated from the core population of San
Bernardino kangaroo rats in the wash by sand and gravel mining
operations. A portion of Plunge Creek was included in the June 19,
2007, proposed revision to critical habitat, but no critical habitat
connection existed between this area of Plunge Creek and other portions
of proposed Unit 1.
We did not propose revised critical habitat connecting Plunge Creek
to other critical habitat areas in proposed Unit 1 because, although
lands in this area are managed by the Bureau of Land Management (BLM),
the BLM is considering the revision of their South Coast Resource
Management Plan and an exchange of land within their existing Area of
Critical Environmental Concern (ACEC) for lands that are privately
owned within the Santa Ana River wash. Should this exchange occur, we
anticipate that the Upper Santa Ana River Habitat Conservation Plan
(USAR HCP, also known as ``Plan B'') would be proposed. The land
exchange would occur to facilitate aggregate mining, water
conservation, roadway improvements, and other activities in areas that
are now within the ACEC, while other, less-disturbed habitat areas for
the San Bernardino kangaroo rat would be conserved through the
implementation of the USAR HCP.
Although we have been working with the BLM and associated
stakeholders on the land exchange for many years, we have not yet been
asked by the BLM to formally consult on this action. However, during
collaboration with the BLM and stakeholders in the USAR HCP, we agreed
upon a potential future mining boundary. Our June 19, 2007, proposed
revision to critical habitat did not include any areas identified in
this collaboration as areas where future mining may occur.
We received significant comment from the public highlighting the
importance of Plunge Creek to the conservation of the San Bernardino
kangaroo rat. Commenters were concerned that the proposed revision to
critical habitat around Plunge Creek (which is north of existing and
proposed mining pits) did not connect to critical habitat in the Santa
Ana River mainstem south of these pits. Plunge Creek is extensively
modified upstream of Greenspot Road by levees and the bridge crossing
the creek on Greenspot Road, and the creek at Orange Street is
completely channelized and diverted from its historical connection with
the Santa Ana River. However, significant sediment deposition occurs
immediately downstream of the Greenspot Road bridge and provides for
habitat renewal in portions of the adjacent WSPA and the reach of
Plunge Creek from Greenspot Road to its diversion at Orange Street.
This area of relatively undisturbed alluvial scrub is occupied by the
San Bernardino kangaroo rat. Commenters, including biologists familiar
with the San Bernardino kangaroo rat, stated that it is important for
the persistence of the subspecies in Unit 1 that the demographic and
genetic connectivity of populations in Plunge Creek and the Santa Ana
wash be conserved.
Based on information received and additional analysis of our own
data, we determined that the population of San Bernardino kangaroo rats
in Plunge Creek is at risk of local extirpation without a habitat
connection in Unit 1 to provide for demographic and genetic exchange
between San Bernardino kangaroo rats in Plunge Creek and the Santa Ana
River main stem area. We are including approximately 265 ac (107 ha) of
occupied habitat in the final revision to critical habitat for Unit 1.
This additional area, which contains the physical and biological
features essential to the conservation of the subspecies, provides
connectivity between Plunge Creek and the core population in the Santa
Ana River wash.
Cable Creek Wash
The Cable Creek wash is located northeast of the Lytle/Cajon Creek
wash (within current Unit 2) on the opposite side of Interstate 215 (I-
215). This wash, although occupied, is isolated from proposed Unit 2 by
I-215, flood control structures, and other development. Cable Creek is
channelized where it approaches the freeway. The concrete channel
eventually crosses underneath I-215 to flow into the Lytle/Cajon wash,
but the channel precludes the movement of individual San Bernardino
kangaroo rats between these areas. Hence, any genetic or demographic
connection between San Bernardino kangaroo rats in Cable Creek wash and
the Lytle/Cajon wash is likely minimal to non-existent. We did not
propose Cable Creek wash in the June 19, 2007, proposed revision to
critical habitat because of the disconnect between this population at
Cable Creek and the larger population of San Bernardino kangaroo rats
at Lytle/Cajon Creek.
During the comment periods for the San Bernardino kangaroo rat
proposed critical habitat revision, we received significant comment
from the public about Cable Creek wash. Commenters stated that this
wash contains essential physical and biological features, retains
fluvial dynamics, and is one of the few areas of occupied San
Bernardino kangaroo rat habitat within the remaining range of the
subspecies. Further, this area appears large enough to support a
population of San Bernardino kangaroo rats indefinitely, despite its
disconnection from the core population in the Lytle/Cajon Creek wash.
Based on information received and additional analysis of our own data,
we determined that Cable Creek contains quality San Bernardino kangaroo
rat habitat, and repeated positive survey results suggest this area
supports a self-sustaining population of this subspecies. Additionally,
we received comments suggesting this area could be important for the
long-term conservation of this subspecies in the future if population
levels in the core area of the Lytle/Cajon wash were to decrease due to
catastrophic events. The demographic isolation of Cable Creek from
Lytle/Cajon Creek occurred relatively recently on an evolutionary time
scale, and therefore, we agree that the Cable Creek wash population
could be utilized to augment recovery of the Lytle/Cajon wash
population. Based on these comments, we revised our criteria
identifying critical habitat to include areas disconnected from core
population areas that may be important for the long-term conservation
of the subspecies. We have determined that approximately 483 ac (195
ha) of land in the Cable Creek wash contain the physical and biological
features essential to the conservation of the subspecies, and we are
designating this area in a new critical habitat Unit 4.
Bautista Creek
Bautista Creek drains into the San Jacinto River wash from the
south, flowing into an area supporting the core population of San
Bernardino kangaroo rats within the San Jacinto River (proposed Unit
3). Bautista Creek is
[[Page 61958]]
channelized approximately 2 miles (3.2 kilometers) downstream of the
San Bernardino National Forest boundary and now flows for several miles
through a 4-sided concrete box channel to its confluence with the San
Jacinto River. This steep-sided channel effectively isolates San
Bernardino kangaroo rats in Bautista Creek from those in the San
Jacinto River. Minimal genetic connectivity may exist between the
Bautista Creek and San Jacinto River populations by way of highly
disturbed, upland agricultural fields along the length of the concrete
channel (if those agricultural areas are occupied at some low level by
the subspecies). Demographic connectivity of the two populations
through these highly disturbed agricultural areas is unlikely, although
an occasional individual may survive being washed downstream through
the channel during a high flow event. However, such an event is likely
so rare it is considered relatively meaningless to the population in
terms of demographic or genetic exchange between individual animals in
Bautista Creek and the San Jacinto River. It is also unlikely that San
Bernardino kangaroo rats could successfully migrate from the San
Jacinto River upstream through the concrete channel to the Bautista
Creek area. Based on this information, we did not include Bautista
Creek in the June 19, 2007, proposed revision to critical habitat.
We received significant comment during the public comment periods
about the unchannelized reaches of Bautista Creek that were designated
in the April 23, 2002, final rule as critical habitat (67 FR 19812).
These comments focused on the unimpeded fluvial dynamics that maintain
existing physical and biological features and occupancy by the San
Bernardino kangaroo rat in this area. It was noted that given the
extent and quality of habitat in this area, the population of San
Bernardino kangaroo rats in Bautista Creek is likely self-sustaining in
the long-term despite the lack of habitat connectivity with the San
Jacinto River wash. We determined that the unchannelized portion of
Bautista Creek is occupied as documented through live-trapping results,
and that this area retains fluvial dynamics maintaining the physical
and biological features required by the San Bernardino kangaroo rat.
Additionally, we received comments suggesting the Bautista Creek
population is important for the long-term conservation of the San
Bernardino kangaroo rat, as it provides a safeguard against population
declines and local extinction in the San Jacinto River wash unit
(proposed Unit 3). The demographic isolation of Bautista Creek from the
San Jacinto River occurred relatively recently on an evolutionary time
scale, and therefore, we agree that the Bautista Creek population could
be utilized to augment recovery of the San Jacinto River wash
population. The comments we received also highlighted the importance of
conserving the Bautista Creek area as it represents the southernmost
extent of the range for the San Bernardino kangaroo rat. Based in part
on these comments, we revised our criteria identifying critical habitat
to include disconnected areas that may be important for the long-term
conservation of the subspecies. We have determined that approximately
443 ac (179 ha) of land in Bautista Creek contain the physical and
biological features essential to the conservation of the subspecies,
and we are designating this area in a new critical habitat Unit 5.
In total, we added approximately 1,579 ac (639 ha) of Federal and
private land to the June 19, 2007, proposed revision to critical
habitat for the San Bernardino kangaroo rat (Table 2) as described in
the April 16, 2008, NOA. Of these 1,579 ac (639 ha), approximately 349
ac (141 ha) are excluded from this final critical habitat designation
under section 4(b)(2) of the Act based on benefits provided to the
subspecies as a result of partnerships that include development of
management plans discussed below.
(3) In the 2007 proposed rule, we discussed an integrated water
recharge and recovery program to be implemented by Eastern Municipal
Water District at the confluence of the San Jacinto River and Bautista
Creek within existing critical habitat Unit 3. The Service issued a
biological opinion for this project on November 16, 2006 (Service 2006,
FWS-WRIV-4051.5) which found that the action did not adversely modify
the currently designated critical habitat. The project would
permanently impact approximately 39 ac (16 ha) of habitat through the
construction of well sites in upland habitat and groundwater recharge
basins in the floodplain of the San Jacinto River. In the proposed rule
we stated that we were not proposing these areas as revised critical
habitat; it was anticipated that these areas would no longer contain
the PCEs upon construction of the well sites and recharge basins.
During the public comment periods, we received public comment
indicating these areas contain the essential physical and biological
features. Also, recent survey data has indicated the current population
of San Bernardino kangaroo rats in these areas is larger than
previously believed, and that project impacts would exceed the
identified level of anticipated incidental take during preconstruction
trapping within the project site. Formal consultation with the Service
on the Eastern Municipal Water District project has been reinitiated,
and construction within the project site has ceased. Because these
areas still contain the essential physical and biological features, we
determined that the 39 ac (16 ha) Eastern Municipal Water District
project site within Unit 3 meets the definition of critical habitat.
However, we are excluding these 39 ac (16 ha) under section 4(b)(2) of
the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section of
this final rule for a detailed discussion of this exclusion).
(4) We proposed lands covered by the WSPA Management Plans for
exclusion under section 4(b)(2) of the Act. We determined that the
benefits of exclusion outweigh the benefits of inclusion on these
lands; therefore, we excluded approximately 751 ac (304 ha) of lands in
Unit 1 covered by the WSPA Management Plans under section 4(b)(2) of
the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section of
this final rule for a detailed discussion of this exclusion).
(5) We proposed lands covered by the Former Norton Air Force Base
CMP for exclusion under section 4(b)(2) of the Act. We determined that
the benefits of exclusion outweigh the benefits of inclusion on these
lands; therefore, we excluded approximately 267 ac (108 ha) of lands in
Unit 1 covered by the Former Norton Air Force Base CMP under section
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act''
section of this final rule for a detailed discussion of this
exclusion).
(6) We proposed lands covered by the Cajon Creek HCMA HEMP for
exclusion under section 4(b)(2) of the Act. We reported in the proposed
rule that there was an acreage discrepancy on the actual size of the
Cajon Creek HCMA HEMP and we proposed to exclude approximately 1,271 ac
(514 ha) from the final revision to critical habitat. Following
publication of the proposed rule, Vulcan Materials Co. (who manages the
area) re-evaluated the original survey data for the Cajon Creek HCMA
HEMP, and conducted additional surveys that demonstrate the Cajon Creek
HCMA HEMP is approximately 1,265 ac (512 ha) in size. We determined
that the benefits of exclusion outweigh the benefits of inclusion on
these lands; therefore, we have excluded approximately 1,265 ac (512
ha) of lands in Unit 2 covered by
[[Page 61959]]
the Cajon Creek HCMA HEMP under section 4(b)(2) of the Act (see
``Exclusions Under Section 4(b)(2) of the Act'' section of this final
rule for a detailed discussion of this exclusion).
(7) We proposed lands covered by the Western Riverside County MSHCP
for exclusion under section 4(b)(2) of the Act. We determined that the
benefits of exclusion outweigh the benefits of inclusion on these
lands; therefore, we excluded approximately 595 ac (241 ha) of private
and permittee-owned Public/Quasi-Public lands in Unit 3 and Unit 5
covered by the Western Riverside County MSHCP under section 4(b)(2) of
the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section of
this final rule for a detailed discussion of this exclusion).
Taking into consideration the above additions to the 2007 proposed
revision to the critical habitat designation, and exclusions under
section 4(b)(2) of the Act, we are designating approximately 7,779 ac
(3,148 ha) of land in San Bernardino and Riverside Counties as critical
habitat in this final rule.
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
(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 or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, transplantation, and in the extraordinary case where
population pressures within a given ecosystem cannot otherwise be
relieved, may include regulated taking.
Critical habitat receives protection under section 7(a)(2) of the
Act through the prohibition against Federal agencies carrying out,
funding, or authorizing the destruction or adverse modification of
critical habitat. Section 7(a)(2) 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 private landowners. Where a
landowner requests Federal agency funding or authorization for an
action that may affect a listed species or critical habitat, the
consultation requirements of section 7(a)(2) 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, the habitat within
the geographical area occupied by the species at the time of listing
must contain the physical and biological features that are essential to
the conservation of the species, and be included only if those features
may require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific data available, habitat areas that provide essential life
cycle needs of the species (i.e., areas on which are found the PCEs
laid out in the appropriate quantity and spatial arrangement essential
to the conservation of the species). Under the Act, we can designate
critical habitat in areas outside the geographical area occupied by the
species at the time it is listed as critical habitat only when we
determine that those areas are essential for the conservation 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 are necessary for the recovery of the species,
based on scientific data not now available to the Service. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not promote the
recovery of the species.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act. They are also
subject to the regulatory protections afforded by section 9 of the Act
and 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, HCPs, or other species conservation planning
efforts if information available at the time of these planning efforts
calls for a different outcome.
Primary Constituent Elements (PCEs)
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12, in determining which areas occupied by
the species at the time of listing to designate as critical habitat, we
consider those physical and biological features essential to the
conservation of the species that may require special management
considerations or protection. We
[[Page 61960]]
consider the physical and biological features to be the PCEs laid out
in the appropriate quantity and spatial arrangement essential to the
conservation of the species. The PCEs 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 historical, geographical, and ecological
distributions of a species.
We derive the PCEs required for the San Bernardino kangaroo rat
from its biological needs as described below, in the proposed rule to
revise critical habitat published in the Federal Register on June 19,
2007 (72 FR 33808), and in the NOA published in the Federal Register on
April 16, 2008 (73 FR 20581). Additional information can also be found
in the final listing rule published in the Federal Register on
September 24, 1998 (63 FR 51005), and in the original final critical
habitat rule published in the Federal Register on April 23, 2002 (67 FR
19812).
Space for Individual and Population Growth and Normal Behavior
San Bernardino kangaroo rats are typically found on alluvial fans,
which are relatively flat or gently sloping masses of loose rock,
gravel, and sand deposited by a stream as it flows into a valley or
upon a plain (McKernan 1993, p. 1). This subspecies is also found on
floodplains, washes, areas with braided channels, and in adjacent
upland areas containing appropriate physical and vegetative
characteristics (McKernan 1993, p. 1). These areas consist of sand,
loam, sandy loam, or gravelly soils (McKernan 1993, p. 1) that are
associated with alluvial processes (i.e., the scour and deposition of
clay, silt, sand, gravel, or similar material by running water such as
rivers and streams; or debris flows). San Bernardino kangaroo rats have
a strong preference for, and are more abundant on, soils deposited by
alluvial processes (McKernan 1997, p. 36). These soils allow San
Bernardino kangaroo rats to dig simple, shallow burrow systems for
shelter and rearing offspring, and surface pits for food storage that
provide for individual and population growth and for normal behavior.
Few studies have occurred on the burrowing behavior of the San
Bernardino kangaroo rat; however, their burrowing habits are similar to
the Merriam's kangaroo rat (of which the San Bernardino kangaroo rat is
a subspecies), which has been extensively studied. Merriam's kangaroo
rats have weak forelegs and are restricted to burrowing in soil that
has not been compacted, such as alluvial deposits of sand or sandy loam
(Price 2007, p. 2). As a result of limited digging ability, Merriam's
kangaroo rats dig simple shallow burrow systems where they spend
approximately 75 percent of their lives (Reynolds 1958, pp. 113 and
122). Burrows consist of one or two chambers averaging 6 inches in
depth (Reynolds 1960, p. 51). Kenagy (1973, p. 1207) observed that
Merriam's kangaroo rats occupied one to three simple burrows depending
on the season. Merriam's kangaroo rats do not have the ability to
burrow into hard soils, and because of this, the highest numbers of
kangaroo rats can be found on loose, sandy soils (Reynolds 1958, p.
113; Huey 1951, p. 212). Light, textured soil that is favorable to
burrowing is an important factor limiting the range of Merriam's
kangaroo rats (Reynolds 1958, p. 114). Sandy loam soils are not too
heavy to discourage digging, yet they are not light enough to
facilitate tunnel cave-ins that can occur in other soil types (Reynolds
1958, p. 113). For these reasons, sandy loam soils found on alluvial
fans and maintained by alluvial processes are essential to the survival
and normal behavior of the San Bernardino kangaroo rat.
Alluvial sage scrub habitat is necessary for normal behavior of the
San Bernardino kangaroo rat because this plant community provides cover
and food resources within areas containing suitable soils for
burrowing. Alluvial sage scrub is considered a distinct and rare plant
community that dominates major outwash fans at the mouths of canyons
along the coastal side of the San Gabriel, San Bernardino, and San
Jacinto Mountains and some smaller floodplain and riverine areas of
southern California (Hanes et al. 1989, p. 187). Described as a variant
of coastal sage scrub (Smith 1980, p. 135), alluvial sage scrub is also
referred to as alluvial scrub, Riversidean alluvial fan scrub, alluvial
fan sage scrub, cismontane alluvial scrub, alluvial fan scrub, or
Riversidean alluvial fan sage scrub. Alluvial sage scrub occurs on two
types of floodplain soils: Riverwash Association soils and Soboba
Association soils (Hanes et al. 1989, p. 188). Comprised of an
assortment of low-growing drought-deciduous shrubs, larger evergreen
woody shrubs, and other perennial species tolerant of a relatively
sterile, rapidly draining substrate, this relatively open vegetation
type is adapted to periodic severe flooding and erosion (Hanes et al.
1989, p. 187; Smith 1980, p. 126).
Alluvial sage scrub vegetation includes plant species that are
often associated with coastal sage scrub, chaparral, or desert
transition communities (Smith 1980, p. 126). Common plant species found
within these plant communities may include: Lepidospartum squamatum
(scalebroom); Eriogonum fasciculatum (California buckwheat);
Eriodictyon crassifolium (woolly yerba santa); Eriodictyon trichocalyx
(hairy yerba santa); Yucca whipplei (our Lord's candle); Rhus ovata
(sugar bush); Rhus integrifolia (lemonadeberry); Malosma laurina
(laurel sumac); Juniperus californicus (California juniper); Baccharis
salicifolia (mulefat); Penstemon spectabilis (showy penstemon);
Heterotheca villosa (golden aster); Eriogonum elongatum (tall
buckwheat); Encelia farinosa (brittle bush); Opuntia spp. (prickly pear
and cholla); Adenostoma fasciculatum (chamise); Prunus ilicifolia
(holly-leaf cherry); Quercus spp. (oaks); Salvia apiana (white sage);
annual forbs (e.g., Phacelia spp. (phacelia); Lupinus spp. (lupine);
and Plagiobothrys spp. (popcorn flower)); and native and nonnative
grasses.
Three phases of alluvial sage scrub have been described: pioneer,
intermediate, and mature. The phases are thought to correspond to
factors such as flood scour, distance from flood channel, time since
last flood, and substrate features (Smith 1980, p. 136; Hanes et al.
1989, p. 187). Under natural conditions, flood waters periodically
break out of the main river channel in a complex pattern, resulting in
a braided appearance to the floodplain and a mosaic of vegetation
stages. Pioneer sage scrub, the earliest phase, is subject to frequent
hydrological disturbance and the sparse vegetation pattern is usually
renewed by frequent floods (Smith 1980, p. 136; Hanes et al. 1989, p.
187). The intermediate phase, which is typically found on benches
between the active channel and mature floodplain terraces, is subject
to periodic flooding at longer intervals. The vegetation of early and
intermediate stages is relatively open (less than 50 percent canopy
cover) and supports the highest densities of the San Bernardino
kangaroo rat (McKernan 1997, p. 50), likely due in part to few root
systems to interfere with burrowing. Price (2007, p. 2) suggests that
kangaroo rats associate with sparsely vegetated habitats because
[[Page 61961]]
dense vegetation produces litter that covers the soil surface and bare
soil surface is needed for dust-bathing and efficient seed collection.
Areas like these, with a significant amount of bare ground, can also
facilitate movement for a bipedal species like the San Bernardino
kangaroo rat. For Merriam's kangaroo rats, an abundance of perennial
grass cover can create an unfavorable environment by interfering with
ease of travel and escape from predators (Reynolds 1958, p. 114).
The oldest or mature phase of alluvial sage scrub, which is found
on elevated floodplain terraces, is rarely affected by flooding and
supports the highest plant density (Smith 1980, p. 137). Although
mature areas are generally used less frequently or occupied at lower
densities by San Bernardino kangaroo rats (likely due to extensive root
systems and heavy vegetative cover that inhibit burrowing, predator
escape, and foraging) than those supporting earlier phases, these areas
contain features essential to the conservation of the subspecies. Lower
portions of the floodplain, where higher densities of San Bernardino
kangaroo rats are found, are likely to become inundated or lost due to
scour and sediment deposition during flooding events and some animals
may drown during such events.
In a study to determine the effects of flooding on Merriam's
kangaroo rats and two other heteromyid (family of rodents that includes
the kangaroo rats, kangaroo mice, and pocket mice) species, Kenagy
(1973, p. 1205) noted heavy burrow damage, and a 23 percent reduction
in the number of chisel-toothed kangaroo rats (Dipodomys microps)
trapped post-flooding compared to pre-flood numbers. Elevated upland
portions of the floodplain containing mature phase alluvial sage scrub
with patches of suitable soils and vegetative cover can support some
individuals, but the low density of animals suggests these areas likely
remain occupied only because of their proximity to the more densely
occupied lower elevation portions of the floodplain. More important to
the preservation of the San Bernardino kangaroo rat in channelized
systems where bank-to-bank flooding can occur are individuals occupying
the upland areas as they may be the only individuals remaining for
recolonization of the lower floodplain after flooding has subsided
(Pavelka 2006).
Regional persistence of the San Bernardino kangaroo rat depends on
recolonization of local populations that have been extirpated by
drought or flood events (Price 2007, p. 2). Research conducted by
Braden and McKernan (2000, p. 16) during 1998 and 1999 demonstrated
that areas with late phases of floodplain vegetation, such as mature
alluvial fan sage scrub and associated coastal sage scrub and
chaparral, including some areas of moderate to dense vegetation such as
nonnative grasslands, are at least periodically occupied by the
subspecies. Due to the dynamic nature of the alluvial floodplain, all
elevations within the floodplain and the associated phases of alluvial
sage scrub habitat are essential to the conservation and long-term
survival of the San Bernardino kangaroo rat.
A limited amount of data exists pertaining to population dynamics
of the San Bernardino kangaroo rat. Information is not currently
available on several aspects of the subspecies' life history such as
fecundity (the capacity of an organism to produce offspring), survival,
population age and sex structure, intra- and interspecific competition,
and causes and rates of mortality. With respect to population density,
Braden and McKernan (2000) documented substantial annual variation on a
trapping grid in San Bernardino County, where densities ranged from 2
to 26 animals per 2.47 ac (1 ha). The reasons for these greatly
disparate values during the 15-month study are unknown. These
fluctuations bring to light several important aspects of the
subspecies' distribution and life history that should be considered
when identifying the physical and biological features essential to the
conservation of the subspecies: (1) A low population density observed
in an area at one point in time does not mean the area is occupied at
the same low density during any other month, season, or year; (2) a low
population density is not an indicator of low habitat quality or low
overall value of the land for the conservation of the subspecies; (3)
an abundance of San Bernardino kangaroo rats can decrease rapidly; and
(4) one or more factors (e.g., food availability, fecundity, disease,
predation, genetics, environment) are strongly influencing the
subspecies' population dynamics in one or more areas. High-amplitude,
high-frequency fluctuations in small, isolated populations make the San
Bernardino kangaroo rat extremely susceptible to local extirpation.
Areas that contain low densities of San Bernardino kangaroo rats
may be important for dispersal, genetic exchange, colonization of newly
suitable habitat, and re-colonization of areas after severe storm
events. The dynamic nature of the alluvial habitat leads to a situation
where not all the habitat associated with alluvial processes is
suitable for the subspecies at any point in time. However, areas
generally considered unsuitable habitat, such as out-of-production
vineyards and margins of orchards, can and do develop into suitable
habitat for the subspecies through natural processes (67 FR 19812). The
San Bernardino kangaroo rat is documented in the following areas: those
containing suitable soils that have been altered due to human
disturbance not typically associated with the subspecies, including
nonnative grasslands; margins of orchards and out-of-use vineyards;
mature stage alluvial sage scrub with greater than 50 percent canopy
cover; and areas of wildland/urban interface within floodplains or
terraces that are adjacent to occupied habitat (67 FR 19812, April 23,
2002). These upland areas can support individuals for repopulation of
wash areas extirpated by flood events (Pavelka 2006). This can occur
directly by dispersal of adult individuals, or indirectly through
dispersal of offspring (Pavelka 2006).
Little is known about home range size, dispersal distances, or
other spatial requirements of the San Bernardino kangaroo rat. However,
home ranges for the Merriam's kangaroo rat in the Palm Springs,
California, area averaged 0.82 ac (0.33 ha) for males and 0.77 ac (0.31
ha) for females (Behrends et al. 1986, p. 204). Blair (1943, p. 26)
reported much larger home ranges for Merriam's kangaroo rats in New
Mexico, where home ranges averaged 4.1 ac (1.7 ha) for males and 3.9 ac
(1.6 ha) for females. Space requirements for the San Bernardino
kangaroo rat likely vary according to season, age and sex of animal,
food availability, and other factors. Although outlying areas of their
home ranges may overlap, Dipodomys adults actively defend small core
areas near their burrows (Jones 1993, p. 583). Home range overlap
between males and between males and females is extensive, but female-
female overlap is slight (Jones 1993, p. 584). The degree of
competition between San Bernardino kangaroo rats and sympatric (i.e.,
living in the same geographical area) species of kangaroo rats for food
and other resources is not presently known. While we do not have
sufficient information to quantify the home range required by the San
Bernardino kangaroo rat, we believe we included sufficient areas
through the delineation of critical habitat in wash and upland areas to
provide the space needed to maintain the home range dynamics of this
subspecies.
Food
As stated in the previous sections, the alluvial sage scrub plant
community
[[Page 61962]]
occupied by the San Bernardino kangaroo rat provides food resources for
the subspecies. However, little is known about the specific diet of San
Bernardino kangaroo rats. They emerge from their burrow systems at
sunset and feed at night, when they are most active. San Bernardino
kangaroo rats are generally granivorous (i.e., feed on seeds and
grains) and like most Merriam's kangaroo rats, often store large
quantities of seeds in surface pits for later consumption (Reichman and
Price 1993, p. 540; Reynolds 1958, p. 126). This species feeds
primarily on the seeds of alluvial sage scrub species, but green
vegetation and insects can also be important seasonal food sources.
Insects, when available, are documented to constitute as much as 50
percent of a kangaroo rat's diet (Reichman and Price 1993, p. 540).
Wilson et al. (1985, p. 731) reported that in comparison to other
rodents, Merriam's kangaroo rats, and heteromyids in general, have
relatively low reproductive output that can be linked to food
resources. Rainfall and the availability of food are cited as factors
affecting kangaroo rat populations. Droughts lasting more than a year
can cause rapid declines in population numbers after seed caches are
depleted (Goldingay et al. 1997, p. 56).
Cover or Shelter
San Bernardino kangaroo rats depend on suitable soils for burrowing
and vegetative cover for shelter from predation. Potential predators
include the common barn owl (Tyto alba), great horned owl (Bubo
virginianus), long-eared owl (Asio otus), gray fox (Urocyon
cinereoargenteus), coyote (Canis latrans), long-tailed weasel (Mustela
frenata), bobcat (Lynx rufus), badger (Taxidea taxus), San Diego gopher
snake (Pituophis melanoleucus annectens), California king snake
(Lampropeltis getulus californiae), red diamond rattlesnake (Crotalus
ruber), southern Pacific rattlesnake (Crotalus oreganus), and domestic
cats (Felis catus) (Bolger et al. 1997, p. 560; 67 FR 19812, April 23,
2002).
Primary Constituent Elements for the San Bernardino Kangaroo Rat
Pursuant to the Act and its implementing regulations, we are
required to identify the physical and biological features within the
geographical area occupied by the San Bernardino kangaroo rat at the
time of listing that are essential to the conservation of the species
and which may require special management considerations or protection.
The physical and biological features are the primary constituent
elements (PCEs) laid out in the appropriate quantity and spatial
arrangement essential to the conservation of the species. All areas
designated as critical habitat for the San Bernardino kangaroo rat are
within the geographical area occupied by the species at the time of
listing, are currently occupied, and contain sufficient essential
features to support at least one life history function.
Based on our current knowledge of the life history, biology, and
ecology of the San Bernardino kangaroo rat and the requirements of the
habitat to sustain the essential life history functions of the
subspecies, we determined that the PCEs specific to the San Bernardino
kangaroo rat are:
(1) Alluvial fans, washes, and associated floodplain areas
containing soils consisting predominately of sand, loamy sand, sandy
loam, and loam, which provide burrowing habitat necessary for
sheltering and rearing offspring, storing food in surface caches, and
movement between occupied patches;
(2) Upland areas adjacent to alluvial fans, washes, and associated
floodplain areas containing alluvial sage scrub habitat and associated
vegetation, such as coastal sage scrub and chamise chaparral, with up
to approximately 50 percent canopy cover providing protection from
predators, while leaving bare ground and open areas necessary for
foraging and movement of this subspecies; and
(3) Upland areas adjacent to alluvial fans, washes, and associated
floodplain areas, which may include marginal habitat such as alluvial
sage scrub with greater than 50 percent canopy cover with patches of
suitable soils (PCE 1) that support individuals for re-population of
wash areas following flood events. These areas may include agricultural
lands, areas of inactive aggregate mining activities, and urban/
wildland interfaces.
With this final designation of critical habitat, we intend to
conserve the physical and biological features essential to the
conservation of the subspecies, through the identification of the
appropriate quantity and spatial arrangement of the PCEs sufficient to
support the life history functions of the subspecies. Some units
contain all of these PCEs and support multiple life processes, while
some units contain only a portion of these PCEs, those necessary to
support the subspecies' particular use of that habitat. Because not all
life history functions require all the PCEs, not all critical habitat
units will contain all the PCEs.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the areas
within the geographical area occupied at the time of listing contain
features essential to the conservation of the subspecies that may
require special management considerations or protection. We also
considered how revising the current designation of critical habitat
highlights habitat with essential features in need of special
management considerations or protection.
The majority of all remaining suitable habitat, and therefore, the
long-term persistence of the San Bernardino kangaroo rat, is threatened
by the direct and indirect effects of: sand and gravel mining;
construction, operation, and maintenance of flood control structures;
water conservation activities; urban and industrial development;
agricultural activities; and off-road vehicle activity. With an
expanding human population in the region, it is likely that these
activities will continue to threaten the habitat and PCEs upon which
the San Bernardino kangaroo rat depends.
Sand and gravel mining operations have degraded San Bernardino
kangaroo rat habitat in all of the critical habitat units except Unit
4, with major operations occurring in the Santa Ana River and Lytle
Creek washes. Mining activities directly affect the PCEs for the
subspecies by altering soil composition and structure, and by stripping
away vegetative cover (PCEs 1 and 2). Furthermore, flood control
structures are often built to protect mining operations from flood
damage. This alters the hydrology essential for maintaining proper soil
and alluvial sage scrub habitat for the San Bernardino kangaroo rat
(PCEs 1 and 2). Special management considerations or protection may be
required to minimize effects of mining activities on alluvial sage
scrub habitat and the natural hydrological processes that maintain
proper alluvial sage scrub conditions for the San Bernardino kangaroo
rat.
Flood control and water conservation activities related to
increasing human population and development have had major impacts on
San Bernardino kangaroo rat habitat and the alluvial processes that
maintain habitat in each of the critical habitat units. Flood control
berms, levees, and concrete-lined channels increase severity (i.e.,
velocity and scour) of flood events in lower elevations within the
floodplain, and cut off upland portions of alluvial sage scrub habitat
from hydrological processes that maintain suitable San Bernardino
kangaroo rat conditions
[[Page 61963]]
(PCEs 1, 2, and 3). In the absence of periodic flooding and scouring,
upland alluvial sage scrub habitat increases in cover and in density of
nonnative vegetation to the point where the open canopy and ground
conditions (PCE 2) preferred by the subspecies no longer exist (Service
2004, p. 293). Some flood control structures (e.g., concrete channels)
can prevent movement and dispersal between occupied areas of the
alluvial wash and floodplain. Decades of groundwater pumping have
severely depleted groundwater reserves within San Bernardino kangaroo
rat habitat and resulted in an ever-increasing need to recharge
groundwater supplies by percolation of local or imported water sources
into the local groundwater basin (Service 2004, p. 293). Further
habitat degradation occurs where groundwater recharge ponds (i.e.,
percolation basins) have been constructed. Recharge structures are
unsuitable for the San Bernardino kangaroo rat due to periodic standing
water. These structures are especially evident in the Santa Ana River
and San Jacinto River washes. Special management considerations or
protection may be required to minimize effects of flood control and
water conservation activities on alluvial sage scrub habitat and the
natural hydrological processes that maintain proper alluvial sage scrub
conditions for the San Bernardino kangaroo rat.
Development projects pose a serious threat to San Bernardino
kangaroo rat habitat in all five critical habitat units. As the human
population of the surrounding area continues to increase, the threat of
development encroaching upon alluvial washes and associated upland
areas will persist (PCEs 1, 2, and 3). Large-scale development projects
may permanently eliminate and fragment habitat containing the PCEs for
the subspecies. Furthermore, continued fragmentation of habitat is
likely to promote higher levels of predation by native animals (Bolger
et al. 1997, p. 560) and urban-associated animals (e.g., domestic cats,
opossums (Didelphis virginianus), and striped skunks (Mephitis
mephitis)) as the interface between natural habitat and urban areas is
increased (Churcher and Lawton 1987, p. 452). Roadways and bridges
built to accommodate the growing population in the area constrict
channel width and contribute to the removal of alluvial fan habitat
from normal hydrological processes (PCE 1). The downstream alluvial
benches become isolated behind the fill used to construct the bridge
within the channel area and do not experience natural flood-borne scour
and deposition. Pier and footing placement within channels is a typical
necessary bridge design feature. Instream piers create scour areas in
front of the piers, increase water velocity through the embankments and
piers (which can result in downstream erosion), and create a permanent
shadow over habitat under the bridge. These factors typically result in
permanently degraded habitat for the San Bernardino kangaroo rat even
though high flows are seasonal in this area. Special management
considerations or protection may be required to minimize the impacts of
development within the alluvial wash and adjacent upland areas. Areas
of the alluvial washes and floodplains adjacent to development may
require exclusionary fencing and signage to minimize human and domestic
animal disturbance of San Bernardino kangaroo rat habitat. Because this
subspecies is active at night, lights from adjacent developed areas
should be minimized and directed away from San Bernardino kangaroo rat
habitat.
Agricultural activities adjacent to all five critical habitat units
and within critical habitat Unit 5 occasionally result in the disking
of patches of suitable or occupied habitat that may be distributed
throughout upland agricultural areas. Disking destroys San Bernardino
kangaroo rat burrows and degrades remaining vegetation associations
(Service 2004, p. 293) (PCEs 1 and 2). This can contribute to the
susceptibility of local populations to extirpation during large-scale
flood events by restricting San Bernardino kangaroo rats to areas most
vulnerable to flooding (i.e., lower elevations of the floodplain)
(Service 2004, p. 293). Special management considerations or protection
may be required to minimize effects of agricultural activities on
alluvial sage scrub habitat.
Unauthorized off-road vehicle activity continues to be a threat to
San Bernardino kangaroo rat habitat in the San Jacinto River wash area.
Most of this activity occurs within the wash downstream of the East
Main Street/Lake Park Drive Bridge. Off-road activity that goes
unchecked directly damages plant communities, the soil crust, and the
burrow systems of kangaroo rats, thereby degrading habitat (Bury et al.
1977, p. 16; Service 2004, p. 293) (PCEs 1 and 2). Special management
considerations or protection, such as exclusionary fencing, additional
enforcement, and signage placed around areas of the wash, may be needed
to minimize impacts from unauthorized off-road vehicle use.
Criteria Used To Identify Critical Habitat
We are designating critical habitat for the San Bernardino kangaroo
rat in areas that we have determined were within the geographical area
occupied at the time of listing, and contain PCEs in the appropriate
quantity and spatial arrangement essential to the conservation of this
subspecies. Some lands contain all PCEs and support multiple life
processes. Some lands contain only a portion of the PCEs necessary to
support the particular biological value of that habitat to this
subspecies. As explained in detail below, we are not designating
critical habitat in areas outside the geographical area occupied by the
species at the time of listing because we determined that such areas
are not essential to the conservation of the subspecies.
We define occupied habitat as: (1) Those areas containing
occurrence data from the time of listing (1980 to 1998); (2) those
areas containing occurrence data since the time of listing (1998 to
present); and (3) areas adjacent to and between occurrence points that
maintain habitat connectivity between occurrences in one continuous
patch of suitable habitat. As discussed in the ``Background'' section
of the proposed rule published in the Federal Register on June 19, 2007
(72 FR 33808), occurrences discovered since the listing of the
subspecies in 1998 are within the geographical area occupied at the
time of listing (i.e., Santa Ana River, Lytle/Cajon Creek, and San
Jacinto River washes).
In this designation, we have focused primarily on core populations
(i.e., areas where the subspecies has been repeatedly detected through
live trapping) in undisturbed habitat in the Santa Ana River, Lytle/
Cajon Creeks, and the San Jacinto River washes that contain the
physical and biological features essential to the conservation of the
San Bernardino kangaroo rat. We believe that protecting the habitat
supporting these three largest core populations is essential to the
survival and recovery of the subspecies. Small, isolated areas of
degraded habitat or areas devoid of fluvial processes are likely only
to support unsustainable populations that would not contribute to the
recovery of this subspecies. In defining core population boundaries, we
included areas demographically disconnected from the three largest
populations, but which may provide the subspecies with protection
against stochastic events (e.g., flooding in excess of a 100-year storm
event that removes flood-plain terrace habitat;
[[Page 61964]]
earthquakes; fires followed by erosion of adjacent slopes that bury
occupied habitat) that could cause local extirpations in the larger
units. These areas are occupied by the subspecies and contain likely
self-sustaining populations, relatively undisturbed alluvial scrub
habitat with largely unimpeded fluvial dynamics, and, thus, the PCEs in
the appropriate quantity and spatial arrangement essential to the
conservation of the subspecies.
We delineated critical habitat for the San Bernardino kangaroo rat
using the following criteria: (1) Areas occupied by the subspecies at
the time of listing, and currently occupied, within the historical
range of the subspecies; (2) areas retaining fluvial dynamics
containing one or more of the PCEs for the subspecies; (3) areas
supporting a core population of the subspecies; and (4) areas
demographically disconnected from the three largest populations, but
which may be important for the long-term recovery of the subspecies.
Utilizing 2005 aerial imagery and occurrence data to determine areas of
occupancy, we delineated critical habitat on maps to include occupied
non-degraded alluvial fans, washes, floodplains, and adjacent upland
areas containing the PCEs required by the San Bernardino kangaroo rat.
We then made site visits with biologists considered to be experts on
this subspecies and its habitat to confirm the presence of PCEs in the
areas delineated on the maps. Because of the importance of upland
habitat as a source of animals to repopulate wash areas following flood
events, we included upland habitat containing one or more PCEs,
adjacent to occupied wash habitat in this designation.
The Service may designate as critical habitat areas outside of the
geographical area occupied by a species at the time it was listed when
we can demonstrate that those areas are essential for the conservation
of the species. Likewise, we can designate as critical habitat areas
outside the geographical area presently occupied by a species only when
a designation limited to the species' present range would be inadequate
to ensure the conservation of the species (50 CFR 424.12(e)).
Conservation (i.e., recovery) is defined in section 3 of the Act as the
``use of all methods and procedures which are necessary to bring any
endangered species or threatened species to the point at which the
measures provided pursuant to this Act are no longer necessary.'' In
accordance with section 4(a)(1) of the Act, we determine if any species
is an endangered or threatened species (or revise its listed status)
because of any of the five threat factors identified in the Act (i.e.,
(A) present or threatened destruction, modification, or curtailment of
its habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence). Therefore,
conservation, or recovery, is achieved when a five factor analysis
indicates that current and future threats have been minimized to an
extent that the species is no longer in danger of extinction or likely
to become endangered in the foreseeable future. Recovery is a dynamic
process requiring adaptive management of threats and there are many
paths to accomplishing recovery of a species. We recognize that it is
unlikely that threats to this subspecies will be removed from all areas
identified in this rule and that recovery efforts will occur outside
the boundaries of this final designation; however, we believe that that
conservation of this subspecies would be achieved if threats to this
subspecies, as described in the ``Special Management Considerations or
Protection'' section of this rule, were reduced or removed in the areas
we identified as meeting the definition of critical habitat. Therefore,
consistent with the statutory obligations of the Act and our
implementing regulations we are not designating any unoccupied areas or
areas outside the geographical area occupied by this subspecies at the
time it was listed.
When determining the critical habitat boundaries, we made every
effort to avoid including developed areas such as lands covered by
buildings, pavement, and other structures because such lands lack PCEs
for the San Bernardino kangaroo rat. Areas currently being used for
sand/gravel mining operations (e.g., pits, staging areas) do not
contain the PCEs required by the San Bernardino kangaroo rat. The scale
of the maps prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this final critical habitat are
excluded by text in this rule and are not designated as critical
habitat. Therefore, Federal actions involving these textually excluded
lands would not trigger section 7 consultation with respect to critical
habitat and the requirement of no adverse modification unless the
specific actions may affect the subspecies or PCEs in adjacent critical
habitat.
Final Critical Habitat Designation
We are designating approximately 7,779 ac (3,148 ha) of land as
critical habitat for the San Bernardino kangaroo rat in five units.
Table 2 provides the approximate area determined to meet the definition
of critical habitat for the San Bernardino kangaroo rat in the 2007
proposed rule, areas added to the proposed rule in the April 16, 2008
NOA, areas being excluded from final critical habitat designation under
section 4(b)(2) of the Act (please see ``Exclusions Under Section
4(b)(2) of the Act'' section for a detailed discussion), and areas
being designated as critical habitat.
Table 2--Critical Habitat Units for the San Bernardino Kangaroo Rat in California; Land Ownership and Evolution of Final Size in Acres (Hectares)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008 NOA
2007 Proposed additions to Areas excluded
Critical habitat unit Land ownership critical habitat proposed under section Final critical habitat
(72 FR 33808) critical habitat 4(b)(2) of the
(73 FR 20581) act
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Santa Ana River Wash, San Bernardino BLM \1\...................... 559 (226) 184 (74) 00 (00) 743 (301)
County.
Local \2\.................... 267 (108) 00 (00) 267 (108) 00 (00)
Private...................... 2,797 (1,132) 469 (190) 751 (304) 2,515 (1,018)
-------------------------------------------------------------------------------------------------------------
Subtotal.............................. ............................. 3,623 (1,466) 653 (264) 1,018 (412) 3,258 (1,318)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2. Lytle/Cajon Creek Wash, San Bernardino USFS \3\..................... 89 (36) 00 (00) 00 (00) 89 (36)
County.
[[Page 61965]]
Private...................... 4,597 (1,860) 00 (00) 1,265 (512) 3,332 (1,348)
-------------------------------------------------------------------------------------------------------------
Subtotal.............................. ............................. 4,686 (1,896) 00 (00) 1,265 (512) 3,421 (1,384)
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. San Jacinto River Wash, Riverside Water District \4\........... 506 (205) 00 (00) \6\ 39 (16) 506 (205)
County.
Local Flood \5\.............. 94 (38) 00 (00) 94 (38) 00 (00)
Private...................... 169 (68) 00 (00) 169 (68) 00 (00)
-------------------------------------------------------------------------------------------------------------
Subtotal.............................. ............................. 769 (311) 00 (00) 302 (122) 506 (205)
--------------------------------------------------------------------------------------------------------------------------------------------------------
4. Cable Creek Wash, San Bernardino County Private...................... 00 (00) 483 (195) 00 (00) 483 (195)
-------------------------------------------------------------------------------------------------------------
Subtotal.............................. ............................. 00 (00) 483 (195) 00 (00) 483 (195)
--------------------------------------------------------------------------------------------------------------------------------------------------------
5. Bautista Creek, Riverside County....... USFS \3\..................... 00 (00) 73 (30) 00 (00) 73 (30)
USFS Inholding............... 00 (00) 38 (15) 00 (00) 38 (15)
Local Flood \5\.............. 00 (00) 4 (2) 4 (2) 00 (00)
Private...................... 00 (00) 328 (133) 328 (133) 00 (00)
-------------------------------------------------------------------------------------------------------------
Subtotal.............................. ............................. 00 (00) 443 (179) 332 (134) 111 (45)
-------------------------------------------------------------------------------------------------------------
Total............................. ............................. 9,078 (3,674) 1,579 (639) 2,917 (1,180) 7,779 (3,148)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ BLM = Bureau of Land Management
\2\ Local = Local Reuse Authority
\3\ USFS = U.S. Forest Service
\4\ Water District = Eastern Municipal Water District and Lake Hemet Municipal Water District
\5\ Local Flood = Riverside County Flood Control
\6\ Please see the ``Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat'' section for a discussion of Eastern Municipal Water
District lands excluded from critical habitat.
Below, we present brief descriptions of the units designated as
critical habitat for the San Bernardino kangaroo rat. For more
information about the areas excluded from critical habitat, please see
the ``Exclusions Under Section 4(b)(2) of the Act'' section of this
final rule.
Unit 1: Santa Ana River Wash
Unit 1 consists of approximately 3,258 ac (1,318 ha) and is located
in San Bernardino County. This unit includes the Santa Ana River and
portions of City, Plunge, and Mill Creeks. The area includes lands
within the cities of San Bernardino, Redlands, and Highland. Although
Seven Oaks Dam (northeast of Unit 1) impedes sediment transport and
reduces the magnitude, frequency, and extent of flood events from the
Santa Ana River, the system still retains partial fluvial dynamics
because Mill Creek is not impeded by a dam or debris basin. This
critical habitat unit was occupied at the time of listing, is currently
occupied, and contains all of the features essential to the
conservation of the San Bernardino kangaroo rat. Additionally, this
unit contains the highest densities of San Bernardino kangaroo rats in
the Santa Ana wash. The physical and biological features contained
within this unit may require special management considerations or
protection to minimize impacts associated with flood control
operations, water conservation projects, sand and gravel mining, and
urban development.
Approximately 751 ac (304 ha) of revised proposed critical habitat
Unit 1 occurred within the WSPA, a section of the floodplain downstream
of Seven Oaks Dam that was preserved by the flood control districts of
Orange, Riverside, and San Bernardino Counties. The WSPA was
established in 1988 by the ACOE to minimize the effects of Seven Oaks
Dam on the federally endangered plant, Eriastrum densifolium ssp.
sanctorum (Santa Ana River woolly-star). This area of alluvial fan
scrub in the wash near the low-flow channel of the river was identified
for preservation because these sections of the wash were thought to
have the highest potential to maintain the hydrology necessary for the
periodic regeneration of early phases of alluvial fan sage scrub. A
1993 Management Plan for the Santa Ana River WSPA has been completed,
and a draft MSHMP for WSPA lands, which includes protection for the San
Bernardino kangaroo rat, is to be completed as an additional
conservation measure pursuant to our December 19, 2002, biological
opinion on operations for Seven Oaks Dam (Service 2002b, p. 8). As a
result of our partnership and development of approved management plans,
we excluded the approximately 751 ac (304 ha) of WSPA lands from the
final revised critical habitat designation (see ``Exclusions Under
Section 4(b)(2) of the Act'' section for a detailed discussion).
In 1994, the BLM designated three parcels in the Santa Ana River, a
total of approximately 760 ac (308 ha), as an ACEC. One parcel is
located south of the Seven Oaks borrow pit, another is farther west and
south of Plunge Creek, and the third is located farther west between
two large mining pits. The primary goal of this ACEC designation is to
protect and enhance the habitat of federally listed plant species
occurring in the area while providing for the administration of valid
existing water conservation rights. Although the establishment of this
ACEC is important in regard to conservation of sensitive
[[Page 61966]]
species and vegetation communities in this area, the administration of
existing water conservation rights conflicts with the BLM's ability to
manage their lands for the San Bernardino kangaroo rat. Existing rights
include a withdrawal of Federal lands for water conservation through an
act of Congress on February 20, 1909 (Public Law 248, 60th Cong., 2nd
sess.). The entire ACEC is included in this withdrawn land and may be
used for water conservation measures, such as the construction of
percolation basins. Although the BLM is coordinating with the Service
to conserve San Bernardino kangaroo rat habitat, at this time we do not
consider these lands to be managed for the benefit of the San
Bernardino kangaroo rat or its PCEs, and we are not excluding these
lands from the final revised critical habitat designation.
We are currently coordinating with the BLM, ACOE, San Bernardino
Valley Conservation District, Cemex Construction Materials, Robertson's
Ready Mix, and other local interests on a proposed exchange of Federal
and private lands and the development of the Upper Santa Ana River
Habitat Conservation Plan (USAR HCP, also known as ``Plan B''). The
goal of the USAR HCP is to consolidate a large block of alluvial fan
scrub occupied by three federally endangered species (the San
Bernardino kangaroo rat, Eriastrum densifolium ssp. sanctorum, and
Dodecahema leptoceras (slender-horned spineflower)) and one federally
threatened species (the coastal California gnatcatcher (Polioptila
californica californica)). The area under consideration includes the
majority of the Santa Ana wash from just downstream of the confluence
of Mill Creek with the Santa Ana River to Alabama Street. While the
goal of this effort is to benefit the San Bernardino kangaroo rat
through the establishment of preserve lands that will be managed for
this subspecies and other listed species, we are still in the
development phase of this HCP, and we are not excluding lands within
the proposed Santa Ana River Wash Conservation Area from the final
revised critical habitat designation.
Approximately 267 ac (108 ha) of occupied habitat in the Santa Ana
River wash is set aside for conservation in perpetuity by the U.S. Air
Force as part of on-base site remediation efforts at the former Norton
Air Force Base in San Bernardino, California. These areas are managed
specifically for the San Bernardino kangaroo rat and Eriastrum
densifolium spp. sanctorum pursuant to the Former Norton Air Force Base
CMP completed in March 2002. We excluded these 267 ac (109 ha) from the
final revised critical habitat designation based on benefits provided
to San Bernardino kangaroo rat habitat through our partnership and the
approved CMP (see ``Exclusions Under Section 4(b)(2) of the Act''
section for a detailed discussion).
Unit 2: Lytle/Cajon Creek Wash
Unit 2 encompasses approximately 3,421 ac (1,384 ha) in San
Bernardino County and includes the northern extent of this subspecies'
remaining distribution. This unit contains habitat along and between
Lytle and Cajon Creeks from the Interstate 15 Bridge in Lytle Creek and
the Kenwood Avenue/Cajon Boulevard junction in Cajon Creek, downstream
to Highland Avenue. Unit 2 was occupied at the time of listing, is
currently occupied, and contains all of the features essential to the
conservation of the San Bernardino kangaroo rat. This unit includes
some of the last remaining alluvial fans, floodplain terraces,
historical braided river channels, and associated alluvial sage scrub
and upland vegetation that provides habitat for the San Bernardino
kangaroo rat in the Lytle/Cajon Creek wash. This unit also contains the
highest densities of San Bernardino kangaroo rat in the Lytle/Cajon
wash. The physical and biological features within this unit may require
special management considerations or protection to minimize impacts
associated with flood control operations, water conservation projects,
sand and gravel mining, and urban development.
The hydro-geomorphological processes that apparently rejuvenate and
maintain the dynamic mosaic of alluvial fan sage scrub are still
largely intact in Lytle and Cajon Creeks (i.e., stream flows are not
impeded by dams or debris basins), and the remaining habitat allows
dispersal between these two drainages, which is important for genetic
exchange between populations (67 FR 19812, April 23, 2002). This unit
is adjacent to large tracts of undeveloped land and contains upland
areas occupied by the subspecies (PCEs 1, 2, and 3).
Several areas that were proposed in Unit 2 will be or are protected
and managed to some extent for the San Bernardino kangaroo rat. The
Cajon Creek Habitat Conservation Management Area (HCMA) includes
approximately 1,265 ac (512 ha) to offset approximately 2,270 ac (919
ha) of sand and gravel mining proposed within and adjacent to Cajon
Creek. Of the 1,265 ac (512 ha) Cajon Creek HCMA, approximately 567 ac
(229 ha) is the Cajon Creek Conservation Bank established to help
conserve populations of 24 species associated with alluvial fan scrub,
including the San Bernardino kangaroo rat. Furthermore, the remaining
698 ac (282 ha) are set aside as permanent conservation lands. These
conservation lands will be managed in perpetuity for alluvial fan scrub
habitat and associated listed species (including the San Bernardino
kangaroo rat) pursuant to the HEMP (M. Blane and Associates 1996) and
associated Memorandum of Understanding and Implementation Agreement for
the Cajon Creek Habitat Management Area (MOU) (CalMat Company 1996). We
excluded 1,265 ac (512 ha) of HCMA lands from the final revised
critical habitat designation based on our partnership and benefits
provided by the HEMP and MOU (see ``Exclusions Under Section 4(b)(2) of
the Act'' for a detailed discussion).
In 2003, the Service issued a biological opinion for the Lytle
Creek North Master Planned Community, which falls within the boundary
of existing San Bernardino kangaroo rat habitat (Service 2003a, FWS-SB-
1640.11). The project includes an approximately 677 ac (274 ha) master
planned community with over 2,400 residential units. Construction
activities are proposed to be phased over an estimated 5 to 10 years.
As an off-site measure for this project, the Lytle Creek Development
Company will dedicate approximately 213 ac (86 ha) of largely
undeveloped habitat within Lytle Creek (Unit 2) as a conservation area
for the San Bernardino kangaroo rat. Habitat that provides primary
foraging, sheltering, and breeding habitat for the San Bernardino
kangaroo rat within this area will be conserved and managed in
perpetuity (Service 2003a, p. 45). Forty acres (16 ha) of this area is
upland island habitat that lies within the floodplain and will receive
additional management through restoration or enhancement for the
benefit of the San Bernardino kangaroo rat (Service 2003a, p. 42). A
long-term management plan will be completed at the end of an initial
management period allowing for lessons learned during that time to be
incorporated into the long-term management plan. However, to date, no
conservation easements or endowments have been secured for the lands
proposed as conservation areas, nor has the long-term management plan
been completed, and we are not excluding the 213 ac (86 ha) of proposed
future conservation lands that will be established as a result of this
project
[[Page 61967]]
from the final revised critical habitat designation.
On June 15, 1999, we issued our biological opinion on the
construction and extension of the north levee at Sunwest Materials'
(now CEMEX) Lytle Creek Quarry (Service 1999, 1-6-99-F-42). The
armored, engineered levee (over 10,000 feet (3,048 meters) in length)
protects mining operations from flooding and replaces a shorter,
earthen embankment (Service 1999, p. 3). As a conservation measure for
this project, Sunwest Materials delivered to the California Department
of Fish and Game a conservation easement deed to approximately 26 ac
(11 ha) delineated as Conservation Area 1 to protect biological
resources in perpetuity (Service 1999, p. 7). Additionally, Sunwest
Materials is to record a biological resource deed restriction on
approximately 12 ac (5 ha) of land to permanently preclude activities
that would interfere with habitat value (Service 1999, p. 8). However,
a management plan benefiting the San Bernardino kangaroo rat is not yet
developed for these lands, and we are not excluding these 38 ac (16 ha)
from the final revised critical habitat designation.
Unit 3: San Jacinto River Wash
Unit 3 encompasses approximately 506 ac (205 ha) in Riverside
County and includes areas along the San Jacinto River in the vicinity
of San Jacinto, Hemet, and Valle Vista. This unit encompasses the San
Jacinto River wash from the Blackburn Road/Lake Hemet Main Canal area,
downstream to the East Main Street Bridge. This unit includes all of
the features essential to the conservation of the San Bernardino
kangaroo rat, was occupied at the time of listing, and is currently
occupied. Additionally, this unit contains one of only three large
extant core populations of the San Bernardino kangaroo rat and is the
only core population in Riverside County. Historically, the San
Bernardino kangaroo rat occurred along the San Jacinto River from the
upper reach of habitat in the river downstream past State Route 79. The
physical and biological features within this unit may require special
management considerations or protection to minimize impacts associated
with flood control operations, channelization, water conservation
projects (groundwater recharge ponds), off-road vehicle activity, and
urban development.
Lands within Unit 3 are adjacent to lands of the Soboba Band of
Luiseno Indians Reservation, which were included in the 2002 final
critical habitat designation (see 50 CFR 17.95(a); 67 FR 19812, April
23, 2002). We are not designating these Tribal lands as critical
habitat for the San Bernardino kangaroo rat in this final revised
critical habitat designation (see ``Government-to-Government
Relationship with Tribes'' section for a detailed discussion).
All private lands proposed as critical habitat in the San Jacinto
River wash fall within the boundaries of the Western Riverside County
MSHCP. We excluded private lands under the jurisdiction of permittees
to the MSHCP and all lands owned and managed by permittees to the MSHCP
within this area (263 ac (106 ha)) based on our partnership and the
benefits provided to the San Bernardino kangaroo rat by the Western
Riverside County MSHCP. We are also excluding 39 ac (16 ha) of land
owned by the Eastern Municipal Water District related to The Soboba
Band of Luiseno Indians Settlement Act and implementation of its
associated settlement agreement. Please see ``Exclusions Under Section
4(b)(2) of the Act'' section for detailed discussions of these
exclusions.
Unit 4: Cable Creek Wash
Unit 4 consists of approximately 483 ac (195 ha) and is located in
San Bernardino County. This unit encompasses the Cable Creek alluvial
floodplain from the mouth of Cable Canyon to I-215 where the creek
becomes channelized. Because Cable Creek is not impeded by a dam or
debris basin, the fluvial dynamics necessary to maintain the PCEs of
San Bernardino kangaroo rat habitat remain in this unchannelized
portion of Cable Creek. This critical habitat unit was occupied at the
time of listing, is currently occupied, and contains all of the
features essential to the conservation of the San Bernardino kangaroo
rat. Additionally, this unit contains a likely self-sustaining
population of San Bernardino kangaroo rats that may be important for
the long-term conservation of the subspecies. This unit is
demographically isolated from the core population of the subspecies in
the Lytle/Cajon wash (Unit 2). A stochastic event causing dramatic
population decline or local extirpation in Unit 2 may have little
effect on Unit 4. In such a case, the population in Unit 4 could serve
as a source of individuals for repopulating Unit 2. The physical and
biological features contained within this unit may require special
management considerations or protection to minimize impacts associated
with flood control operations, water conservation projects, sand and
gravel mining, and urban development.
Unit 5: Bautista Creek
Unit 5 consists of approximately 111 ac (45 ha) and is located in
Riverside County. This unit includes occupied habitat from the
unchannelized reach of Bautista Creek (i.e., from the existing instream
mining operation to upstream areas where the grade of the creek
precludes the formation of alluvial terraces or braids). This unit
represents the southernmost extent of the San Bernardino kangaroo rat's
current range. The wash system in upper Bautista Creek retains fluvial
dynamics because it is not impeded by a dam, debris basin, or concrete
channelization. This critical habitat unit was occupied at the time of
listing, is currently occupied, and contains all of the features
essential to the conservation of the San Bernardino kangaroo rat.
Historically, the subspecies occurred upstream of the Bautista flood
control basin until the topography of the canyon becomes too steep.
This unit contains agricultural areas that could be occupied at low
densities by this subspecies (PCE 3). Additionally, this unit contains
a likely self-sustaining population of San Bernardino kangaroo rats
that may be important for the long-term conservation of the subspecies.
This unit is demographically isolated from the core population of the
subspecies in the San Jacinto wash (Unit 3) by a concrete-lined
channel. This channel directs flows from upper Bautista Creek
downstream to the San Jacinto River. Given the current status of the
San Bernardino kangaroo rat and ongoing threats to its habitat, it is
important for the conservation of the San Bernardino kangaroo rat that
natural fluvial processes in occupied habitat are maintained. A
stochastic event could cause a dramatic population decline or local
extirpation in either Units 3 or 5. In such a case, through relocation
for the purposes of recovery, the population in Unit 5 could serve as a
source of individuals for repopulating Unit 3, and vice versa. The
physical and biological features contained within this unit may require
special management considerations or protection to minimize impacts
associated with agricultural activities, sand and gravel mining, and
urban development.
All private lands proposed as critical habitat in Bautista Creek
fall within the boundaries of the Western Riverside County MSHCP. We
excluded private lands under the jurisdiction of permittees to the
MSHCP and all lands owned and managed by permittees to the MSHCP within
this area (332 ac (134
[[Page 61968]]
ha)) based on our partnership and the benefits provided to the San
Bernardino kangaroo rat by the Western Riverside County MSHCP (see
``Exclusions Under Section 4(b)(2) of the Act'' section for a detailed
discussion).
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 jeopardize the continued existence of a listed species or
destroy or adversely modify designated critical habitat. Decisions by
the Fifth and Ninth Circuit Courts 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, destruction or adverse modification is
determined on the basis of whether, with implementation of the proposed
Federal action, the affected critical habitat would remain functional
to serve its intended conservation role for the species.
Under section 7(a)(2) of the Act, 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 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:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) 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 a new
species is listed or critical habitat is subsequently designated that
may be affected and the Federal agency has retained discretionary
involvement or control over the action or such discretionary
involvement or control is authorized by law. Consequently, Federal
agencies may need to request reinitiation of consultation with us on
actions for which formal consultation has been completed, if those
actions may affect subsequently listed species or designated critical
habitat.
Federal activities that may affect the San Bernardino kangaroo rat
or its designated critical habitat will require consultation under
section 7(a)(2) of 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 the Service 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
examples of agency actions that may be subject to the section 7(a)(2)
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(a)(2) 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 remain functional to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical and
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the San Bernardino kangaroo
rat. Generally, the conservation role of the San Bernardino kangaroo
rat critical habitat units is to support occurrences of the subspecies
in the Santa Ana River, Lytle/Cajon Creeks, the San Jacinto River,
Cable Creek, and Bautista Creek, which in combination with core
occurrences on private land excluded from critical habitat designation
under section 4(b)(2) of the Act, comprise the core populations of this
subspecies.
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 the San Bernardino kangaroo rat include, but are
not limited to (please see ``Special Management Considerations or
Protection'' section for a more detailed discussion on the impacts of
these actions to the listed subspecies):
(1) Actions that would result in loss or fragmentation of suitable
habitat, such as urban and industrial development, sand and gravel
mining, off-road vehicle activity, and groundwater recharge operations.
These activities could eliminate or reduce habitat necessary for the
growth and reproduction of the San Bernardino kangaroo rat. Resulting
fragmentation could isolate populations, increasing risk of local
extirpations from stochastic events and decreasing movement between
remaining patches of suitable habitat.
(2) Actions that would alter natural hydrological and
geomorphological processes necessary to maintain alluvial sage scrub
habitat. Such activities could include, but are not limited to: channel
alteration; flood control operations; and construction of flood control
structures such as dams, levees, and detention basins. These activities
could eliminate or reduce preferred habitat conditions for the growth
and reproduction of the San Bernardino kangaroo rat. Periodic high
flows and flood events provide sediment scour, sediment deposition, and
thinning of vegetation which maintains alluvial sage scrub habitat.
(3) Actions that would appreciably decrease habitat value or
quality
[[Page 61969]]
through indirect and edge effects. Such activities could include, but
are not limited to: urban, industrial, and agricultural development;
and construction of roads and railways. These activities could have
indirect effects that could lead to increases in human activity, in
light levels during nighttime foraging, in predation by domestic and
feral animals associated with residential development, and the invasion
of exotic plants, or otherwise eliminate or reduce preferred habitat
conditions for the San Bernardino kangaroo rat. Measures to minimize
the impacts of these activities to the species and its habitat could
include the installation of fencing to decrease predation by domestic
and feral animals, placement of lighting structures (e.g., street
lights) such that the light is directed away from habitat, and the use
of best management practices to reduce the amount of water entering
habitat due to sheet flow.
We consider all of the units designated as critical habitat to be
within the geographical area occupied by the subspecies at the time of
listing, and to contain features essential to the conservation of the
San Bernardino kangaroo rat. Federal agencies already consult with us
on activities in areas occupied by the San Bernardino kangaroo rat that
may affect the subspecies to ensure that their actions do not
jeopardize the continued existence of the San Bernardino kangaroo rat.
Exclusions
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 has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor. In the following sections, we address a number
of general issues that are relevant to our analysis under section
4(b)(2) of the Act.
Economic Analysis
Following the publication of the proposed revised critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft economic
analysis (DEA; dated February 6, 2008) was made available for public
review and comment from April 16, 2008, to May 16, 2008 (73 FR 20581),
and from July 29, 2008, to August 13, 2008 (73 FR 43910). The Service
also completed an Addendum to the Economic Analysis (dated May 21,
2008) that addressed the potential economic impacts associated with the
additional 1,579 ac (639 ha) presented in the April 16, 2008 NOA. The
Addendum was made available for public review and comment from July 29,
2008, to August 13, 2008 (73 FR 43910). Substantive comments and
information received on the DEA and Addendum are summarized above in
the ``Public Comment'' section and are incorporated into the final
analysis, as appropriate. Taking any relevant new information into
consideration, the Service completed a final economic analysis (FEA)
(dated August 29, 2008) of the designation that updates the DEA by
removing impacts that were not considered probable or likely to occur,
and by adding an estimate of the costs associated solely with the
designations of critical habitat for the San Bernardino kangaroo rat
(incremental impacts).
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the San Bernardino kangaroo rat. 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. The economic
analysis considers the economic efficiency effects that may result from
the designation. 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). It 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 government agencies, private businesses, and
individuals. The economic analysis measures lost economic efficiency
associated with residential and commercial development and public
projects and activities, such as economic impacts on water management
and transportation projects, Federal lands, 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. Finally, the economic analysis
looks retrospectively at costs that have been incurred since the date
we listed the San Bernardino kangaroo rat as endangered (September 24,
1998; 63 FR 51005), and considers those costs that may occur in the
years following the revised designation of critical habitat, with the
timeframes for this analysis varying by activity.
The economic 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 economic analysis examines activities taking place both within
and adjacent to the designation. It estimates impacts based on
activities that are ``reasonably foreseeable'' including, but not
limited to, activities that are currently authorized, permitted, or
funded, or for which proposed plans are currently available to the
public. Accordingly, the analysis bases estimates on activities that
are likely to occur within a 20-year timeframe, from when the proposed
rule became available to the public (June 19, 2007, 72 FR 33808). The
20-year timeframe was chosen for the analysis because, as the time
horizon for an economic analysis is expanded, the assumptions on which
the projected number of projects and cost impacts associated with those
projects are based become increasingly speculative.
The economic analysis is intended to quantify the baseline and
incremental economic impacts of all potential conservation efforts for
the San Bernardino kangaroo rat associated with the following
activities: (1) Water conservation; (2) flood control; (3) urban
development; (4) sand and gravel mining; (5) agricultural activities;
and (6) off-road vehicle activities. Baseline impacts include impacts
associated with overlapping protections from other Federal, State, and
local laws that aid
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habitat conservation in the study area. In other words, those impacts
associated with the listing of the species and not associated with
critical habitat. Incremental impacts are those expected to occur
solely because of the designation of critical habitat; these would not
be expected to occur but for the designation of critical habitat.
Potential incremental economic impacts are estimated over a 23-year
period from 2008 through 2030 and include an overall cost of $164.4
million in present value terms using a 7 percent discount rate. No
incremental economic impacts are expected in areas excluded from
critical habitat under section 4(b)(2) of the Act. The impacts in areas
excluded from critical habitat are all considered to be baseline
impacts.
For the purposes of the economic analysis and assessing effects on
development, the revised critical habitat was divided into upland and
lowland areas. Lowland areas are occupied by the San Bernardino
kangaroo rat year-round at high densities of individuals. Because this
is such a narrow endemic subspecies found in very few locations, any
loss of lowland habitat in which the functional ability of a lowland
critical habitat unit was adversely modified or destroyed would also
likely result in jeopardy to this narrow endemic subspecies. Therefore,
any adverse modification decision for lowland habitat areas would
likely be coincident to a jeopardy determination for the same action.
Thus, potential economic impacts from conservation efforts that may be
necessary to avoid adverse modification of critical habitat within
lowland areas are considered co-extensive with the impacts of the
listing of the San Bernardino kangaroo rat and, for the purposes of
this analysis, are considered to be in the baseline.
The general conservation role of critical habitat within the upland
habitat areas is to act as refuge for the San Bernardino kangaroo rat
during flooding events that inundate the low-lying alluvial fans (i.e.,
the lowlands) that this subspecies usually occupies. Conservation
efforts not otherwise necessary to avoid jeopardy to the San Bernardino
kangaroo rat may be required in upland areas to ensure that the
conservation role and function of the critical habitat unit are
conserved. Therefore, incremental costs due to the designation of
critical habitat may be incurred in upland areas as it is reasonable to
expect that the Service may recommend avoidance and minimization
efforts in upland areas designated as critical habitat (up to and
including complete avoidance) specifically to avoid the destruction or
adverse modification of critical habitat. Thus, impacts of conservation
efforts that may result in reduced or no development in the upland
areas are considered incremental impacts of critical habitat
designation.
The vast majority of incremental impacts attributed to critical
habitat designation are due to potential constraints on development
within upland areas. The projected number of housing units in upland
areas of critical habitat is 791 according to estimates using the
Southern California Association of Governments forecasts. Assuming the
potential constraints on development in the upland areas result in
complete avoidance of these areas, total incremental impacts are
projected to be approximately $44.4 million present value at a 7
percent discount rate over a 23-year period. In addition to the
Southern California Association of Government forecasts, we received
detailed projected housing information from the Lytle Creek Development
Co. for certain upland areas in Unit 2. The Lytle Creek Development Co.
projects an additional 3,962 housing units in those areas. Again
assuming complete avoidance of upland areas, total additional
incremental impacts are projected to be approximately $120 million
present value at a 7 percent discount rate over a 23-year period. A
very small portion of incremental effects are attributed to water
conservation activities in upland areas, approximately $140 million
annualized at a 7 percent discount rate.
In addition to projecting the incremental impacts expected to occur
solely because of the designation of critical habitat, the economic
analysis considers the potential economic effects of actions relating
to the conservation of the San Bernardino kangaroo rat, including costs
associated with sections 4, 7, 9, and 10 of the Act. 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 the San Bernardino kangaroo rat in areas containing features
essential to the conservation of the subspecies. The FEA estimates that
the potential economic effects of actions relating to the conservation
of this subspecies, including costs associated with sections 4, 7, and
10 of the Act (baseline costs, not attributable to critical habitat),
will be $202.7 million present value at a 7 percent discount rate over
the next 23 years.
After consideration of the impacts under section 4(b)(2) of the
Act, we have not excluded any areas from the final critical habitat
designation based on the identified economic impacts. The final
economic analysis is available at http://www.regulations.gov or upon
request from the Carlsbad Fish and Wildlife Office (see ADDRESSES
section).
Benefits of Designating Critical Habitat
The process of designating critical habitat as described in the Act
requires that the Service identify those lands within the geographical
area occupied by the species at the time of listing on which are found
the physical or biological features essential to the conservation of
the species that may require special management considerations or
protection, and those areas outside the geographical area occupied by
the species at the time of listing that are essential for the
conservation of the species. In identifying those lands, the Service
must consider the recovery needs of the species, such that, on the
basis of the best scientific and commercial data available at the time
of designation, the habitat that is identified, if managed or
protected, could provide for the survival and recovery of the species.
The identification of areas that contain features essential to the
conservation of the species that can, if managed or protected, provide
for the recovery of a species, is beneficial. The process of proposing
and finalizing a critical habitat rule provides the Service with the
opportunity to determine the physical and biological features essential
to the conservation of the species within the geographical area
occupied by the species at the time of listing, as well as to determine
other areas essential for the conservation of the species. The
designation process includes peer review and public comment on the
identified physical and biological features and areas. This process is
valuable to land owners and managers in developing conservation
management plans for identified areas, as well as any other occupied
habitat or suitable habitat that may not be included in the areas the
Service identifies as meeting the definition of critical habitat.
The consultation provisions under section 7(a)(2) of the Act
constitute the regulatory benefits of critical habitat. As discussed
above, Federal agencies must consult with the Service on actions that
may affect critical habitat and must avoid destroying or adversely
modifying critical habitat. Federal agencies must also consult with us
on actions that may affect a listed species and refrain from
undertaking actions that are likely to jeopardize the continued
existence of such species. The analysis of effects to critical habitat
is a separate and
[[Page 61971]]
different analysis from that of the effects to the species. Therefore,
the difference in outcomes of these two analyses represents the
regulatory benefit of critical habitat. For some species, and in some
locations, the outcome of these analyses will be similar, because
effects to habitat will often also result in effects to the species.
However, the regulatory standard is different, as the jeopardy analysis
investigates the action's impact to survival and recovery of the
species, while the adverse modification analysis investigates the
action's effects to the designated habitat's contribution to
conservation. This will, in many instances, lead to different results
and different regulatory requirements. Thus, critical habitat
designations may provide greater benefits to the recovery of a species
than would listing alone.
There are two limitations to the regulatory effect of critical
habitat. First, a consultation is only required where there is a
Federal nexus (an action authorized, funded, or carried out by any
Federal agency)--if there is no Federal nexus, the critical habitat
designation of private lands itself does not restrict actions that
destroy or adversely modify critical habitat. Second, the designation
only limits destruction or adverse modification. By its nature, the
prohibition on adverse modification is designed to ensure that the
conservation role and function of those areas that contain the physical
and biological features essential to the conservation of the species or
of unoccupied areas that are essential for the conservation of the
species are not appreciably reduced. Critical habitat designation
alone, however, does not require private property owners to undertake
specific steps toward recovery of the species.
Once an agency determines that consultation under section 7(a)(2)
of the Act is necessary, the process may conclude informally when the
Service concurs in writing that the proposed Federal action is not
likely to adversely affect critical habitat. However, if we determine
through informal consultation that adverse impacts are likely to occur,
then formal consultation is initiated. Formal consultation concludes
with a biological opinion issued by the Service on whether the proposed
Federal action is likely to result in destruction or adverse
modification of critical habitat.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to the primary constituent elements, but it would not suggest the
implementation of any reasonable and prudent alternative. We suggest
reasonable and prudent alternatives to the proposed Federal action only
when our biological opinion results in an adverse modification
conclusion.
As stated above, the designation of critical habitat does not
require that any management or recovery actions take place on the lands
included in the designation. Even in cases where consultation is
initiated under section 7(a)(2) of the Act, the end result of
consultation is to avoid jeopardy to the species and/or adverse
modification of its critical habitat, but not necessarily to manage
critical habitat or institute recovery actions on critical habitat.
Conversely, voluntary conservation efforts implemented through
management plans institute proactive actions over the lands they
encompass and are put in place to remove or reduce known threats to a
species or its habitat; therefore, implementing recovery actions. We
believe that in many instances the regulatory benefit of critical
habitat is minimal when compared to the conservation benefit that can
be achieved through implementing Habitat Conservation Plans (HCPs)
under section 10 of the Act or other habitat management plans. The
conservation achieved through such plans is typically greater than what
we achieve through multiple site-by-site, project-by-project, section
7(a)(2) consultations involving consideration of critical habitat.
Management plans commit resources to implement long-term management and
protection to particular habitat for at least one and possibly other
listed or sensitive species. Section 7(a)(2) consultations only commit
Federal agencies to preventing adverse modification of critical habitat
caused by the particular project, and they are not committed to provide
conservation or long-term benefits to areas not affected by the
proposed action. Thus, implementation of an HCP or management plan that
incorporates enhancement or recovery as the management standard may
often provide as much or more benefit than a consultation for critical
habitat designation.
Another benefit of including lands in critical habitat is that
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for the San Bernardino kangaroo rat. In general, critical habitat
designation always has educational benefits; however, in some cases,
they may be redundant with other educational effects. For example, HCPs
have significant public input and may largely duplicate the educational
benefits of a critical habitat designation. Including lands in critical
habitat also would inform State agencies and local governments about
areas that could be conserved under State laws or local ordinances.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without cooperation of non-Federal landowners. More than 60 percent of
the United States is privately owned (National Wilderness Institute
1995, p.2), and at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002,
p. 720; Stein et al. 1995, p. 400) found that only about 12 percent of
listed species were found almost exclusively on Federal lands (90 to
100 percent of their known occurrences restricted to Federal lands) and
that 50 percent of federally listed species are not known to occur on
Federal lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-Federal landowners.
Building partnerships and promoting voluntary cooperation of landowners
are essential to understanding the status of species on non-Federal
lands, and are necessary to implement recovery actions such as
reintroducing listed species, habitat restoration, and habitat
protection.
Many non-Federal landowners derive satisfaction from contributing
to endangered species recovery. We promote these private-sector efforts
through the Department of the Interior's Cooperative Conservation
philosophy. Conservation agreements with non-Federal landowners (HCPs,
safe harbor agreements, other conservation agreements, easements, and
State and local regulations) enhance species conservation by extending
species protections beyond those available through section 7
consultations. In the past decade, we have encouraged non-Federal
landowners to enter into conservation agreements, based on a view that
we can achieve greater species conservation on non-Federal land through
such partnerships than we can
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through regulatory methods (61 FR 63854, December 2, 1996).
Many private landowners, however, are wary of the possible
consequences of encouraging endangered species to their property, and
there is mounting evidence that some regulatory actions by the Federal
Government, while well-intentioned and required by law, can (under
certain circumstances) have unintended negative consequences for the
conservation of species on private lands (Wilcove et al. 1996, pp. 5-6;
Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp.
270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). Many
landowners fear a decline in their property value due to real or
perceived restrictions on land-use options where threatened or
endangered species are found. Consequently, harboring endangered
species is viewed by many landowners as a liability. This perception
results in anti-conservation incentives because maintaining habitats
that harbor endangered species represents a risk to future economic
opportunities (Main et al. 1999, pp. 1264-1265; Brook et al. 2003, pp.
1644-1648).
According to some researchers, the designation of critical habitat
on private lands significantly reduces the likelihood that landowners
will support and carry out conservation actions (Main et al. 1999, p.
1263; Bean 2002, p. 2; Brook et al. 2003, pp. 1644-1648). The magnitude
of this negative outcome is greatly amplified in situations where
active management measures (such as reintroduction, fire management,
and control of invasive species) are necessary for species conservation
(Bean 2002, pp. 3-4). We believe that the judicious exclusion of
specific areas of non-federally owned lands from critical habitat
designations can contribute to species recovery and provide a superior
level of conservation than critical habitat alone.
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7(a)(2) of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands. Thus
the benefits of excluding areas that are covered by partnerships or
voluntary conservation efforts can often be high.
Benefits of Excluding Lands With HCPs or Other Approved Management
Plans
The benefits of excluding lands with HCPs or other approved long-
term management plans from critical habitat designation include
relieving landowners, communities, and counties of any additional
regulatory burden that might be imposed as a result of the critical
habitat designation. Most HCPs and other conservation plans take many
years to develop, and upon completion, are consistent with the recovery
objectives for listed species that are covered within the plan area.
Many also provide conservation benefits to unlisted sensitive species.
Imposing an additional regulatory review as a result of the designation
of critical habitat may undermine our efforts and partnerships as well.
Our experience in implementing the Act has found that designation of
critical habitat within the boundaries of management plans that provide
conservation measures for a species is a disincentive to many entities
that are either currently developing such plans, or contemplating doing
so in the future, because one of the incentives for undertaking
conservation is greater ease of permitting where listed species are
affected. Addition of a new regulatory requirement would remove a
significant incentive for undertaking the time and expense of
management planning.
A related benefit of excluding lands covered by approved HCPs and
management plans that cover listed species from critical habitat
designation is the unhindered, continued ability it gives us to seek
new partnerships with future plan participants, including States,
counties, local jurisdictions, conservation organizations, and private
landowners, which together can implement conservation actions that we
would be unable to accomplish otherwise. Designating lands within
approved management plan areas as critical habitat would likely have a
negative effect on our ability to establish new partnerships to develop
these plans, particularly plans that address landscape-level
conservation of species and habitats. By excluding these lands, we
preserve our current partnerships and encourage additional conservation
actions in the future.
Both HCPs and Natural Communities Conservation Plan (NCCP)-HCP
applications require consultation, which would review the effects of
all HCP-covered activities that might adversely impact the species
under a jeopardy standard, including possibly significant habitat
modification, even without the critical habitat designation.
Additionally, all other Federal actions that may affect the listed
species still require consultation under section 7(a)(2) of the Act,
and we review these actions for possibly significant habitat
modification in accordance with the jeopardy standard under Section
7(a)(2).
The information provided in the previous sections applies to all
the following discussions of benefits of inclusion or exclusion of
critical habitat.
Application of Section 4(b)(2)--Other Relevant Impacts--Conservation
Partnerships
Section 4(b)(2) of the Act allows the Secretary to exclude areas
from critical habitat for other relevant impacts 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.
As discussed above in the ``Conservation Partnerships on Non-Federal
Lands'' section, we believe that designation can negatively impact the
working relationships and conservation partnerships we have formed with
private landowners. The Service recognizes that 80 percent of
endangered or threatened species occur either partially or solely on
private lands (Crouse et al. 2002) and we will only achieve recovery of
federally listed species with the cooperation of private landowners.
In making the following exclusions, we evaluated the benefits of
designating these non-Federal lands that may not have a Federal nexus
for consultation while considering if our existing partnerships have,
or will, result in greater conservation benefits to the San Bernardino
kangaroo rat and the physical or biological features essential to its
conservation than a critical habitat designation. As discussed in the
``Benefits of Designating Critical Habitat'' section above,
conservation partnerships that result in implementation of an HCP or
other management plan that considers enhancement or recovery as the
management standard often provide as much or more benefit than
consultation for critical habitat designation (the primary benefit of a
designation).
In considering the benefits of including lands in a designation
that are covered by a current HCP or other management plan, we evaluate
a number of factors to help us determine if the plan provides
equivalent or greater conservation benefit than would
[[Page 61973]]
likely result from consultation on a designation:
(1) Whether the plan is complete and provides protection from
destruction or adverse modification;
(2) Whether there is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) Whether the plan provides conservation strategies and measures
consistent with currently accepted principles of conservation biology.
We balance the benefits of inclusion against the benefits of
exclusion by considering the benefits of preserving partnerships and
encouraging development of additional HCPs and other conservation plans
in the future.
Woolly-Star Preserve Area (WSPA) Management Plans
Approximately 751 ac (304 ha) of the 765-ac (310 ha) WSPA is within
proposed critical habitat Unit 1. The WSPA is within the 100- to 500-
year floodplain of the upper Santa Ana River immediately downstream
from the Seven Oaks Dam. The WSPA was established in 1988 by the ACOE
as part of the conservation measures developed through a section 7
consultation to address impacts to the federally endangered Eriastrum
densifolium ssp. sanctorum resulting from construction of the Seven
Oaks Dam (Service File: 1-6-88-F-6, June 22, 1989). The San Bernardino
County Flood Control District, Orange County Flood Control Division,
and Riverside County Flood Control and Water Conservation District are
responsible for the operation of the Seven Oaks Dam.
A management plan for Eriastrum densifolium ssp. sanctorum was
prepared in coordination with the Service, California Department of
Fish and Game, ACOE, and the flood control districts (Chambers Group,
Inc. 1993). The 1993 Management Plan for the Santa Ana River Woolly-
Star was created to be implemented on the 765-ac (310-ha) WSPA
(Chambers Group, Inc. 1993, p. 2). This plant inhabits early and
intermediate successional stages of alluvial fan scrub habitat, which
are the preferred habitat areas for the San Bernardino kangaroo rat.
The overall strategy for the management plan on WSPA lands is to avoid
physical disturbances to alluvial habitat and to allow for disturbances
by natural processes (Chambers Group, Inc. 1993, p. 3-1). The 1993
Management Plan for E. d. ssp. sanctorum includes a description of
management tasks, which are currently being implemented, that benefit
habitat for E. d. ssp. sanctorum. Implementation of the plan is carried
out by the flood control districts identified above. Though not
addressed directly by the plan, these management tasks benefit the San
Bernardino kangaroo rat as well. These management tasks include:
Identification and implementation of habitat renewal methods; control
of exotic species; reduction of off-road vehicle activity, trash
dumping, and other negative human impacts; and a public awareness
program (Chambers Group, Inc. 1993, p. 3-2). Lands within the WSPA were
placed under a conservation easement that is jointly held by the flood
control districts of San Bernardino, Riverside, and Orange counties
(Lovell 2007, p. 1). Since the inception of the 1993 Management Plan
for the Santa Ana River Woolly-Star, ongoing biological studies and
management tasks have been conducted on the WSPA to increase
understanding of E. d. ssp. sanctorum habitat (alluvial scrub) and
habitat renewal and to increase the quality of alluvial habitat.
Studies and management tasks involve population and habitat monitoring,
along with habitat renewal and population expansion of E. d. ssp.
sanctorum (PSOMAS and CSUF 2004, p.1). These ongoing efforts help to
ensure not only the conservation of E. d. ssp. sanctorum, but alluvial
habitat in general and the native plants and animals that depend on
this habitat, including the San Bernardino kangaroo rat.
The ACOE, San Bernardino County Flood Control District, Orange
County Flood Control Division, and Riverside County Flood Control and
Water Conservation District have committed to the development and
implementation of a Multiple Species Habitat Management Plan (MSHMP)
for the WSPA that will update the 1993 plan and include habitat
management specifically for the San Bernardino kangaroo rat and the
federally endangered Dodecahema leptoceras as part of the conservation
measures proposed during consultation regarding the effects of
operation and maintenance of the dam on Eriastrum densifolium ssp.
sanctorum, D. leptoceras and the San Bernardino kangaroo rat. The goals
of the draft MSHMP specific to the San Bernardino kangaroo rat include:
(1) Maintenance and/or expansion of the current subspecies distribution
within the WSPA; (2) optimization of habitat conditions; and (3)
maintenance and/or enhancement of populations of the San Bernardino
kangaroo rat within the WSPA.
General objectives of the MSHMP in support of the San Bernardino
kangaroo rat management goals are to (1) monitor the San Bernardino
kangaroo rat and relevant habitat elements according to standardized
protocols; (2) conduct studies to fill gaps in knowledge related to
subspecies biology and habitat; (3) measure San Bernardino kangaroo rat
response to experimental habitat treatments and potential management
measures; (4) establish priority of areas for implementation of habitat
management to maintain or enhance suitability for the subspecies; and
(5) refine management measures over time using an adaptive management
framework. Information gathered through the implementation of the MSHMP
will be used to support science-based management decisions and
evaluation of management success. Various potential management
alternatives may be implemented such as protective management,
disturbance control, nonnative grass control, habitat enhancement and
restoration, and habitat renewal. The management of this area is
anticipated to help to maintain and protect alluvial wash and upland
habitat (PCEs 1, 2, and 3) required by the San Bernardino kangaroo rat.
The MSHMP is currently in draft form and will replace the 1993
management plan. The MSHMP will be reviewed by the resource agencies
for their concurrence prior to implementation (Service 2002b, p. 8).
The ACOE, San Bernardino County Flood Control District, Orange County
Flood Control Division, and Riverside County Flood Control and Water
Conservation District are responsible for the development and
implementation of the MSHMP.
Protocol surveys (live-trapping) conducted during 2005 and 2006
confirm that portions of the WSPA are currently occupied by the San
Bernardino kangaroo rat (Service, unpublished Geographic Information
System data), and habitat surveys suggest that much of this area is
likely to support the San Bernardino kangaroo rat (MEC Analytical
Systems, Inc. 2000, fig. 24). Ongoing surveys and habitat management to
benefit the San Bernardino kangaroo rat are anticipated as part of the
MSHMP currently in development. The Service is working with the ACOE
and their biological consultants on baseline subspecies surveys and
trials of habitat manipulations, and management practices followed by
trapping surveys to show both density and distribution of the San
Bernardino kangaroo rat within the WSPA. These actions are being
undertaken as part of the development of a final MSHMP.
[[Page 61974]]
The 1998 final listing rule for the San Bernardino kangaroo rat
identified habitat loss, destruction, degradation, and fragmentation
due to sand and gravel mining operations, flood control projects, and
urban development as primary threats to the San Bernardino kangaroo
rat. As described above, the WSPA Management Plans have provided and
will continue to provide enhancement of the habitat by removing or
reducing threats to this subspecies and the PCEs. The WSPA Management
Plans preserve habitat that supports identified core populations of
this subspecies and, therefore, provide for recovery.
In the 1998 final listing rule, we discussed that the area set
aside by the ACOE as mitigation (i.e., the WSPA) for the then proposed
Seven Oaks Dam project was not adequate to conserve this subspecies. We
stated that the conserved area only represents approximately 4 percent
of the alluvial scrub in the area. We also stated in the listing rule
that the majority of the conserved habitat will no longer receive the
hydrological scouring considered necessary to maintain alluvial scrub
habitat. Although this may be true of the Santa Ana River, Mill Creek
is not impeded by dams and is the primary source of sediment and
alluvial processes to this area. The primary objective of the existing
WSPA and the additional conservation measures outlined in the
Biological Assessment for the Seven Oaks Dam, Santa Ana River Mainstem
Project (August 2000) is to compensate for potential changes in
floodplain characteristics and listed species' (including the San
Bernardino kangaroo rat) habitat brought about by construction and
operation of Seven Oaks Dam (Service 2002b, p. 7). These WSPA lands are
currently designated as critical habitat. For these reasons, we
determined that the WSPA is important to the subspecies and the
associated management plans adequately conserve habitat for the San
Bernardino kangaroo rat. Based on the reasoning provided below, we
excluded from Unit 1 the approximately 751 ac (304 ha) of non-Federal
lands within the WSPA Management Plans area from the final revised
critical habitat designation under section 4(b)(2) of the Act.
Benefits of Inclusion--Woolly-Star Preserve Area (WSPA) Management
Plans
The inclusion of approximately 751 ac (304 ha) of WSPA lands in the
revised critical habitat designation could be beneficial because it
identifies lands to be managed for the conservation of the San
Bernardino kangaroo rat. The process of proposing and finalizing the
revised critical habitat rule provided the Service with the opportunity
to evaluate and refine the features or PCEs essential to the
conservation of the subspecies within the geographical area occupied by
the San Bernardino kangaroo rat at the time of listing, as well as to
evaluate whether there are other areas essential for the conservation
of the subspecies. The designation process included peer review and
public comment on the identified features and areas. This process is
valuable to land owners and managers in developing conservation
management plans for identified areas, as well as any other occupied
habitat or suitable habitat that may not have been included in the
Service's determination of essential habitat. However, identification
of important habitat and habitat features for the San Bernardino
kangaroo rat within the area covered by the WSPA Management Plans and
efforts to conserve the subspecies and its habitat were initiated prior
to the proposed revised critical habitat rule and will continue into
the future.
The educational benefits of designation are small and largely
redundant to those derived through conservation efforts currently being
planned and implemented in the WSPA. The process of developing the WSPA
Management Plans has involved several partners including (but not
limited to) flood control districts of San Bernardino, Riverside, and
Orange counties, California Department of Fish and Game, ACOE, and the
Service.
The educational benefits of critical habitat designation derived
through informing WSPA partners and other members of the public of
areas important for the long-term conservation of this subspecies have
already been and continue to be achieved through: (1) Development of
the WSPA Management Plans; (2) the original designation process in
2002; and (3) publication of the proposed revisions to critical habitat
in 2008, notices of public comment periods, and the public hearings.
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of inclusion for critical habitat.
As discussed above, Federal agencies must consult with us on actions
that may affect critical habitat and must avoid destroying or adversely
modifying critical habitat. All of the approximately 751 ac (304 ha) of
WSPA lands in Unit 1 that are being excluded are on private property,
with the potential Federal nexus for the San Bernardino kangaroo rat as
a result of actions by the ACOE associated with the Santa Ana River in
the area. Therefore, including this area would provide some regulatory
benefits under section 7(a) of the Act.
However, the WSPA Management Plans address conservation issues from
a coordinated, integrated perspective rather than a piecemeal project-
by-project approach that could result in this area absent these plans,
and the plans will achieve more San Bernardino kangaroo rat
conservation than would be achieved through such multiple site-by-site,
project-by-project, section 7 consultations involving consideration of
critical habitat. Furthermore, the WSPA Management Plans include
proactive monitoring and management of conserved lands (as previously
described), thereby reducing known threats to the San Bernardino
kangaroo rat and its habitat. These measures provide assurance that the
features essential to the conservation of the San Bernardino kangaroo
rat within the WSPA will be permanently protected and managed to
conserve this subspecies. In light of the conserved status of the lands
and the potential piecemeal project-by-project approach for future
section 7 consultations on these lands, we conclude that the potential
regulatory benefit of designating this area as critical habitat is
minimal. The WSPA Management Plans provide as much or more benefit than
a consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.
Benefits of Exclusion--Woolly-Star Preserve Area (WSPA) Management
Plans
Multi-jurisdiction management plans (such as the 1993 WSPA
Management Plan and the draft MSHMP that is being developed) foster an
ecosystem-based approach for habitat conservation planning purposes.
Once such an ecosystem-based management plan is developed (similar to
the HCP conservation planning process), conservation issues can be
addressed through a coordinated approach. Coordinating landscape-scale
conservation with the flood control districts and the ACOE will assist
in the preservation of interconnected linkage areas and populations
that support recovery of the subspecies. We believe that the benefits
of excluding lands under the scenario described above are: (1)
Retaining and fostering the existing partnership and working
relationship with all stakeholders; and (2) encouraging future regional
habitat management plans or HCP development or development of other
species/habitat
[[Page 61975]]
conservation plans. Additionally, exclusion of the existing WSPA (which
is being incorporated into the draft MSHMP) demonstrates our good faith
effort to work productively with non-Federal entities, which should
encourage initiation and completion of other multi-jurisdiction
management plans. Designation of lands covered by the WSPA Management
Plan may discourage other landowners or flood control districts from
seeking or completing similar conservation efforts.
We developed a working relationship with the San Bernardino County
Flood Control District, Orange County Flood Control Division, and
Riverside County Flood Control and Water Conservation District through
the development of the 1993 WSPA Management Plan and the draft MSHMP
that is being developed, which incorporates appropriate protections and
management for the San Bernardino kangaroo rat, its habitat, and the
features essential to the conservation of this subspecies. By excluding
751 ac (304 ha) of lands in Unit 1 from designation, we are eliminating
an essentially redundant layer of regulatory review for projects
covered by the WSPA Management Plans, enhancing our working
relationship with the flood control districts, and encouraging new
partnerships with other water districts, landowners, and jurisdictions.
We believe these partnerships are critical for the conservation of the
San Bernardino kangaroo rat.
The Benefits of Exclusion Outweigh the Benefits of Inclusion--Woolly-
Star Preserve Area (WSPA) Management Plans
We reviewed and evaluated the proposed designation of essential
habitat in the WSPA and determined that the benefits of excluding
critical habitat on 751 ac (304 ha) of land in the WSPA outweigh the
benefits of designating these lands as critical habitat. This area is
protected by a conservation easement jointly held by the flood control
districts of San Bernardino, Riverside, and Orange counties. Because
these lands are part of an established conservation easement, they are
protected and include permanent management that is funded by an
endowment. These measures provide assurance that the features essential
to the conservation of the San Bernardino kangaroo rat at the WSPA will
be permanently protected and managed to conserve this subspecies.
As discussed in the ``Benefits of Exclusion'' section above, we
developed a close working relationship with the participating flood
control districts responsible for the WSPA Management Plans through the
development of those plans, which incorporate appropriate protections
and management of this subspecies' essential physical and biological
features. Those protections are consistent with the mandates under
section 7 of the Act to avoid destruction or adverse modification of
critical habitat and go beyond that prohibition by including active
management and protection of essential habitat areas. Designation of
critical habitat alone does not achieve recovery or require management
of those lands identified in the critical habitat rule. We believe that
the recovery benefits of excluding the WSPA lands and implementing the
WSPA Management Plans outweigh the recovery benefits of retaining these
lands as critical habitat. Furthermore, the benefits to recovery of
inclusion primarily have already been met through the identification of
those areas most important to the subspecies. By excluding these lands
from designation, we are eliminating a largely redundant layer of
regulatory review for a limited set of projects on non-Federal lands
that are addressed by the management plans, and we are helping to
preserve our ongoing partnership with the WSPA Management Plan
participants and encourage new partnerships with other landowners and
jurisdictions. The minimal educational and potential regulatory
benefits of including the WSPA lands in critical habitat are small when
compared to the impact such a designation could have on our current and
future partnerships. These partnerships are integral to achieving long-
term conservation of the San Bernardino kangaroo rat. Designating
critical habitat on non-Federal lands within areas covered by the WSPA
Management Plans could have a detrimental effect to our partnership
with the plan participants and could be a significant disincentive to
the establishment of future partnerships and management plans with
other partners.
We reviewed and evaluated the exclusion of the approximately 751 ac
(304 ha) of non-Federal lands in Unit 1 covered by the WSPA Management
Plans from the final revised critical habitat designation for the San
Bernardino kangaroo rat and determined that the benefits of excluding
these lands outweigh the benefits of including them. As discussed
above, the WSPA Management Plans will provide for significant
preservation and management of the physical and biological features
essential to the conservation of the San Bernardino kangaroo rat and
will help reach the recovery goals for this subspecies.
Exclusion Will Not Result in Extinction of the Subspecies--Woolly-Star
Preserve Area (WSPA) Management Plans
We determined that the exclusion of the non-Federal lands within
the area covered by the WSPA Management Plans from the final revised
designation of critical habitat for the San Bernardino kangaroo rat
will not result in the extinction of the subspecies. The WSPA
Management Plans provide protection and management in perpetuity of
lands within Unit 1, including the physical and biological features
essential to the conservation of the San Bernardino kangaroo rat.
Additionally, the jeopardy standard of section 7 of the Act and routine
implementation of conservation measures through the section 7 process
provide assurances that the subspecies will not go extinct as a result
of this exclusion.
Former Norton Air Force Base Conservation Management Plan (CMP)
The Norton Air Force Base in Unit 1 was formally transferred to
private ownership in 2003. Prior to closure, the U.S. Air Force
completed installation remediation that included the closure of an area
known as ``Landfill 2.'' In accordance with conservation measures
outlined in our November 26, 1996, biological opinion (1-6-96-F-10) on
the closure of Landfill 2, the U.S. Air Force developed a management
plan (the Former Norton Air Force Base CMP, completed in 2002) for
approximately 267 ac (108 ha) of habitat occupied by the San Bernardino
kangaroo rat in the Santa Ana River wash area (Unit 1). Approximately
54 ac (22 ha) in two parcels were designated Core Management Areas
(CMA-1 and CMA-2), and 214 ac (87 ha) comprise an Open Space Management
Area (OSMA). Under the CMP completed in March 2002, these areas are
managed specifically for the San Bernardino kangaroo rat and Eriastrum
densifolium ssp. sanctorum (U.S. Air Force 2002, pp. 1-4).
CMA-1 (approximately 29 ac (12 ha)) and CMA-2 (approximately 25 ac
(10 ha)) are located along the southern edge of the OSMA. CMA-1
includes both floodplain habitat on the `wet' side of an existing flood
control levee and fenced upland habitat behind the levee along the
northern edge of the Santa Ana River. CMA-2 is located entirely within
the Santa Ana River floodplain. Approximately 13 ac (5 ha) of CMA-2 are
owned by the Inland Valley Development Agency and the remainder of the
CMA lands and the OSMA are owned by the San Bernardino International
Airport Authority (SBIA
[[Page 61976]]
Authority). These areas provide important upland habitat that supports
individual San Bernardino kangaroo rats necessary to re-populate the
active floodplain following large-scale floods that scour out lower-
elevation terrace habitat adjacent to the active river channel (Service
2003b, p. 18) (PCE 3). Lands within these CMAs are to be permanently
protected by conservation easements (U.S. Air Force 2002, p. 5-11). The
CMAs are adjacent to the approximately 214-acre (87-hectare) OSMA that
surrounds the existing runway of the SBIA.
The OSMA is an aircraft over-run area that is managed in accordance
with Federal Aviation Administration (FAA) guidelines for such lands.
However, the SBIA Authority manages the OSMA in such as a way as to
minimize adverse impacts to the San Bernardino kangaroo rat as
described in the CMP and our biological opinion issued for the base
closure (FWS-SB-1723.10, August 5, 2003). The 214-acre (87-hectare)
OSMA is in the immediate vicinity of the eastern runway, and safety
regulations require that most of this land remain undeveloped (U.S. Air
Force 2002, p. 5-5). The OSMA is protected from flooding by levees, but
routine mowing required by the FAA keeps vegetation from becoming dense
and senescent, which creates open habitat that may be suitable for San
Bernardino kangaroo rats (Service 2003b, p. 17). No disking or other
ground disturbance is allowed within the OSMA area and implementation
of the prescribed mowing regime is unlikely to result in crushing of
San Bernardino kangaroo rat burrows (Service 2003b, p. 18).
Upon closure of the Former Norton Air Force Base in 2003, the SBIA
Authority and the Inland Valley Development Agency assumed
responsibility for the management of the CMAs pursuant to the CMP
(Service 2003b, p. 6). Management practices currently conducted on SBIA
Authority and Inland Valley Development Agency property are described
in the CMP and include (1) subspecies monitoring every 2 to 3 years
following the Service-approved protocol, (2) vegetation surveys and
adaptive control of invasive weedy plants, (3) trash removal, and (4)
installation of protective signage and maintenance of barriers to
reduce and prevent trespassing (U.S. Air Force 2002, pp. 5-11). In
accordance with the CMP, the SBIA Authority provides us with annual
reports regarding the status of the CMP and OSMA (documents on file at
the Carlsbad Fish and Wildlife Office). The SBIA Authority routinely
removes exotic or weedy plant species within the CMAs, controls coyote
access to fenced portions of CMA-1 and the OSMA, which reduces
predation on the San Bernardino kangaroo rat in these areas, removes
all dumped trash as soon as possible in accordance with the CMP and FAA
guidelines, and promptly addresses any trespass issues as needed (e.g.,
fence and sign repairs). Human activities incompatible with the purpose
of the CMAs are restricted (U.S. Air Force 2002, pp. 5-12). These
management actions and the eventual placement of a conservation
easement on the CMA parcels are anticipated to ensure that habitat
containing the PCEs for the San Bernardino kangaroo rat is conserved
within the CMAs and the OSMA through the protection and management of
alluvial washes and upland habitat (PCEs 1, 2, and 3) required by the
subspecies.
The 1998 final listing rule for the San Bernardino kangaroo rat
identified the following primary threats to the San Bernardino kangaroo
rat: habitat loss, destruction, degradation, and fragmentation due to
sand and gravel mining operations; flood control projects; and urban
development. As described above, the Former Norton Air Force Base CMP
provides enhancement of the habitat by removing or reducing threats to
this subspecies and the PCEs. The CMP preserves habitat that supports
identified core populations of this subspecies and therefore provides
for recovery. Based on the reasoning provided below, we excluded from
Unit 1 the approximately 267 ac (108 ha) of non-Federal lands within
the Former Norton Air Force Base CMP area from the final revised
critical habitat designation under section 4(b)(2) of the Act.
Benefits of Inclusion--Former Norton Air Force Base Conservation
Management Plan (CMP)
The inclusion of approximately 267 ac (108 ha) of non-Federal lands
within CMA-1 and CMA-2 (of the Former Norton Air Force Base) in the
revised critical habitat designation could be beneficial because it
identifies lands to be managed for the conservation of the San
Bernardino kangaroo rat. The process of proposing and finalizing the
revised critical habitat rule provided the Service with the opportunity
to evaluate and refine the features or PCEs essential to the
conservation of the subspecies within the geographical area occupied by
the San Bernardino kangaroo rat at the time of listing, as well as to
evaluate whether there are other areas essential for the conservation
of the subspecies. The designation process included peer review and
public comment on the identified features and areas. This process is
valuable to land owners and managers in developing conservation
management plans for identified areas, as well as any other occupied
habitat or suitable habitat that may not have been included in the
Service's determination of essential habitat.
The educational benefits of designation are small and largely
redundant to those derived through conservation efforts currently being
implemented in the approximately 267 ac (108 ha) of lands within CMA-1
and CMA-2. The process of developing the CMP has involved several
partners including (but not limited to) the U.S. Air Force, SBIA
Authority, Inland Valley Development Agency, and the Service.
The educational benefits of critical habitat designation derived
through informing our partners and other members of the public of areas
important for the long-term conservation of the San Bernardino kangaroo
rat have already been and continue to be achieved through: (1)
Development and implementation of the CMP; (2) the original designation
process in 2002; and (3) publication of the proposed revisions to
critical habitat in 2008, notices of public comment periods, and the
public hearings.
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of inclusion for critical habitat.
As discussed above, Federal agencies must consult with us on actions
that may affect critical habitat and must avoid destroying or adversely
modifying critical habitat. All of the approximately 267 ac (108 ha) of
CMA-1 and CMA-2 lands in Unit 1 that are being excluded are on private
property, with the potential Federal nexus for the San Bernardino
kangaroo rat as a result of actions by the ACOE associated with Santa
Ana River in the area or actions by the Federal Aviation
Administration. Therefore, including this area would provide some
regulatory benefits under section 7(a) of the Act.
However, the Former Norton Air Force Base CMP addresses
conservation issues from a coordinated, integrated perspective rather
than a piecemeal project-by-project approach that could result in this
area absent this plan, and will achieve more San Bernardino kangaroo
rat conservation than would be achieved through such multiple site-by-
site, project-by-project, section 7 consultations involving
consideration of critical habitat. The permanent conservation of these
lands (i.e., conservation easement) is currently in progress.
Furthermore, the CMP includes proactive monitoring and management of
conserved lands (as
[[Page 61977]]
previously described), thereby reducing known threats to the San
Bernardino kangaroo rat and its habitat. These measures provide
assurance that the features essential to the conservation of the San
Bernardino kangaroo rat within the CMAs will be protected and managed
to conserve this subspecies. In light of the progress made to establish
conservation easements on these lands and the potential piecemeal
project-by-project approach for future section 7 consultations that may
occur on these lands, we conclude that the potential regulatory benefit
of designating this area as critical habitat is minimal. The CMP
provides as much or more benefit than a consultation for critical
habitat designation conducted under the standards required by the Ninth
Circuit in the Gifford Pinchot decision.
Benefits of Exclusion--Former Norton Air Force Base Conservation
Management Plan (CMP)
The exclusion of the Former Norton Air Force Base CMP lands from
critical habitat will help preserve and foster the partnerships that we
developed with the Inland Valley Development Agency and SBIA Authority,
and aid in encouraging other landowners to participate in conservation
planning. Excluding the existing CMP lands demonstrates our good faith
effort to work productively with non-Federal entities, which should
encourage initiation and completion of conservation plans. As discussed
above, many landowners and local jurisdictions perceive critical
habitat being designated on lands covered by existing conservation
plans as an unfair and unnecessary regulatory burden given the expense
and time involved in developing and implementing conservation plans
such as the CMP. The exclusion of this area signals to other private
landowners that if they take steps to put their lands into
conservation, they may avoid an additional layer of regulation, which,
as we described above in the ``Conservation Partnerships on Non-Federal
Lands'' section, sometimes acts as a disincentive for private
landowners. Therefore, designation of lands covered by the CMP
participants may discourage other landowners from seeking or completing
similar conservation efforts. We believe that fostering these types of
partnerships with non-Federal landowners are critical for the
conservation of the San Bernardino kangaroo rat.
The Benefits of Exclusion Outweigh the Benefits of Inclusion--Former
Norton Air Force Base Conservation Management Plan (CMP)
As discussed in the ``Benefits of Inclusion'' section, we believe
that the regulatory benefit of designating critical habitat on private
lands covered by the Former Norton Air Force Base CMP would be low. The
CMP addresses conservation issues from a coordinated, integrated
perspective rather than a piecemeal project-by-project approach and
will achieve more San Bernardino kangaroo rat conservation than would
be achieved through multiple site-by-site, project-by-project, section
7 consultations involving consideration of critical habitat.
Furthermore, the CMP provides for the proactive monitoring and
management of conserved lands (as previously described), reducing known
threats to the San Bernardino kangaroo rat and its habitat.
Conservation and management of San Bernardino kangaroo rat habitat
is essential to the survival and recovery of this subspecies. Such
conservation needs are typically not addressed through the application
of the statutory prohibition on destruction or adverse modification of
critical habitat. The CMP provides as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision. Furthermore, educational benefits that may be derived from a
critical habitat designation are minimal and largely redundant to the
educational benefits achieved through significant State and local
government input during the development of this management plan.
We developed a close partnership with the CMP participants through
the development of this management plan that incorporates appropriate
protections and management of this subspecies' essential physical and
biological features. Those protections are consistent with the mandates
under section 7 of the Act to avoid destruction or adverse modification
of critical habitat and go beyond that prohibition by including active
management and protection of essential habitat areas. Designation of
critical habitat alone does not achieve recovery or require management
of those lands identified in the critical habitat rule. We believe the
recovery benefits of excluding the former Norton Air Force Base
conservation lands and implementing the CMP outweigh the recovery
benefits of retaining these lands as critical habitat. Furthermore, the
benefits to recovery of inclusion primarily have already been met
through the identification of those areas most important to the
subspecies. The minimal educational and potential regulatory benefits
of including the Former Norton Air Force Base lands in critical habitat
are small when compared to the impact such a designation could have on
our current and future partnerships. By excluding these lands from
designation, we are eliminating a largely redundant layer of regulatory
review for a limited set of projects on non-Federal lands that are
addressed by the management plan, and we are helping to preserve our
ongoing partnership with the CMP participants and to encourage new
partnerships with other landowners and jurisdictions. These
partnerships are critical for the conservation of the San Bernardino
kangaroo rat. Designating critical habitat on non-Federal lands within
areas covered by the CMP area could have a detrimental effect to our
partnership with the plan participants and could be a significant
disincentive to the establishment of future partnerships and management
plans with other partners.
We reviewed and evaluated the exclusion of approximately 267 ac
(108 ha) of non-Federal lands in Unit 1 from the designation of final
revised critical habitat for the San Bernardino kangaroo rat and
determined that the benefits of excluding these lands outweigh the
benefits of including them. As discussed above, the CMP will provide
for significant preservation and management of the physical and
biological features essential to the conservation of the San Bernardino
kangaroo rat and will help reach the recovery goals for this
subspecies.
Exclusion Will Not Result in Extinction of the Subspecies--Former
Norton Air Force Base Conservation Management Plan (CMP)
We determined that the exclusion of the non-Federal lands within
the area covered by the CMP from the final revised designation of
critical habitat for the San Bernardino kangaroo rat will not result in
the extinction of the subspecies. The CMP provides protection and
management, in perpetuity of lands within Unit 1, including the
physical and biological features essential to the conservation of the
San Bernardino kangaroo rat. Additionally, the jeopardy standard of
section 7 of the Act and routine implementation of conservation
measures through the section 7 process provide assurances that the
subspecies will not go extinct as a result of this exclusion.
[[Page 61978]]
Cajon Creek Habitat Conservation Management Area, Habitat Enhancement
and Management Plan (Cajon Creek HCMA HEMP)
The Cajon Creek HCMA, managed by Vulcan Materials Co. (formerly
CalMat Co.), Western Division, was created in 1996 to offset
approximately 2,270 ac (919 ha) of sand and gravel mining proposed
within and adjacent to Cajon Creek. According to the HEMP for the HCMA
and the associated Memorandum of Understanding and Implementation
Agreement for the Cajon Creek Habitat Management Area (MOU), the HCMA
includes approximately 1,378 ac (558 ha) of lands in Unit 2, which are
managed to protect or restore alluvial scrub habitat within the 100-
year floodplain to help conserve populations of 24 species associated
with alluvial fan scrub, including the San Bernardino kangaroo rat.
Pioneer, intermediate, and mature phase alluvial scrub habitats can be
found in the Cajon Creek HCMA, along with all three of the PCEs
required by the San Bernardino kangaroo rat (M. Blane and Associates
1996, p. 11). Recent surveys of the HCMA conducted by Vulcan Materials
Co. have established that the original survey data was inaccurate and
the actual size of the HCMA is 1,265 ac (512 ha), not 1,378 ac (558
ha), made up of 698 ac (282 ha) of conservation lands and a 567 ac (229
ha) conservation bank.
Of the HCMA lands, 698 ac (282 ha) were set aside to offset impacts
from the proposed mining to alluvial fan sage scrub habitat and
associated listed species including the San Bernardino kangaroo rat
(Service 1998b, p. 2), and the 567 ac (229 ha) Cajon Creek Conservation
Bank was established. These lands will be conserved and managed in
perpetuity for alluvial fan scrub habitat and associated listed species
(including the San Bernardino kangaroo rat) pursuant to the HEMP
completed in July 1996, and the associated MOU signed on October 21,
1996 (Service 1998b, p. 2). The lands set aside to offset mining
impacts were placed under a permanent conservation easement. The
approximately 567 ac (229 ha) Cajon Creek Conservation Bank was placed
under a 10-year conservation easement on February 16, 1998. The
original intent of the Service, ACOE, and Vulcan Materials Co. was to
place those lands within the bank under permanent conservation easement
once all credits had been sold. The MOU addressing the permanent
conservation of the Cajon Creek Conservation Bank and the conservation
easement were recently extended by Vulcan Materials Co. until 2025
(Vulcan Materials Company 2006, p. 1). More than half of the total
credits available within the Cajon Creek Conservation Bank have been
sold (M. Blane and Associates 2006, p. 5). Those credits not purchased
by the end of the term will be available for purchase by the resource
agencies (i.e., Service and California Department of Fish and Game).
Habitat protection and enhancement measures are explained in the
HEMP (M. Blane and Associates 1996, p. 21). Habitat protection measures
are used to minimize unauthorized human intrusion and impacts
associated with such intrusion (M. Blane and Associates 1996, p. 21).
More specifically, protection measures involve restricted access to the
HCMA to minimize off-road vehicle use, target shooting, trash dumping,
and other activities that result in degradation of natural areas (M.
Blane and Associates 1996, p. 25). Restrictive barriers and signage are
placed along borders and near access points. Removal of unnecessary
roads and subsequent revegetation of those roads further discourage
unauthorized access (M. Blane and Associates 1996, p. 28). Furthermore,
trash existing on HCMA lands and adjacent lands within San Bernardino
County Flood Control property is removed as stated in the HEMP (M.
Blane and Associates 1996, p. 28). Habitat enhancement measures are
intended to restore the biological integrity of degraded alluvial scrub
habitat and associated plant and animal species (including the San
Bernardino kangaroo rat) within the HCMA and to protect it from further
degradation (M. Blane and Associates 1996, p. 21). Specifically,
habitat enhancement includes weed control involving removal of exotic
plants on HCMA lands and adjacent lands and alluvial scrub revegetation
activities as described in the HEMP (M. Blane and Associates 1996, p.
22). The above protection and enhancement measures ensure that alluvial
fans, washes, and associated upland habitat (PCEs 1, 2, and 3) required
by this subspecies are conserved.
The Cajon Creek HCMA has been and continues to be managed in
accordance with the HEMP and MOU by Vulcan Materials Company, which
provides us with an annual report of management activities within the
HCMA. Plan implementation has resulted in revegetation of previously
mined areas, trash removal and overall decrease in trash dumping,
placement of signage and barriers in areas vulnerable to unauthorized
access, and successful invasive weed eradication (M. Blane and
Associates 2006, p. 12). The continued implementation of the Cajon
Creek HCMA HEMP will ensure the long-term conservation of habitat for
the San Bernardino kangaroo rat.
The 1998 final listing rule for the San Bernardino kangaroo rat
identified the following primary threats to the San Bernardino kangaroo
rat: habitat loss, destruction, degradation, and fragmentation due to
sand and gravel mining operations; flood control projects; and urban
development. As described above, the Cajon Creek Habitat Conservation
Management Area HEMP provides enhancement of the habitat by removing or
reducing threats to this subspecies and the PCEs. The HEMP preserves
habitat that supports identified core populations of this subspecies
and therefore provides for recovery. Based on the reasoning provided
below, we excluded from Unit 2 the approximately 1,265 ac (512 ha) of
non-Federal lands within the Cajon Creek HCMA from the San Bernardino
kangaroo rat final revised critical habitat designation under section
4(b)(2) of the Act.
Benefits of Inclusion--Cajon Creek HCMA HEMP
The inclusion of approximately 1,265 ac (512 ha) of non-Federal
lands within the Cajon Creek HCMA in the revised critical habitat
designation could be beneficial because it identifies lands to be
managed for the conservation of the San Bernardino kangaroo rat. The
process of proposing and finalizing the revised critical habitat rule
provided the Service with the opportunity to evaluate and refine the
features or PCEs essential to conservation of the subspecies within the
geographical area occupied by the San Bernardino kangaroo rat at the
time of listing, as well as to evaluate whether there are other areas
essential for the conservation of the subspecies. The designation
process included peer review and public comment on the identified
features and areas. This process is valuable to land owners and
managers in developing conservation management plans for identified
areas, as well as any other occupied habitat or suitable habitat that
may not have been included in the Service's determination of essential
habitat.
The educational benefits of designation are small and largely
redundant to those derived through conservation efforts currently being
implemented in the approximately 1,378 ac (558 ha) of lands within the
Cajon Creek HCMA and as a result of the development of the conservation
easement and the involvement of the public and local government
representatives in the day-to-day operation of the bank. The process of
[[Page 61979]]
developing the HEMP has involved several partners including (but not
limited to) CalMat Co., California Department of Fish and Game, ACOE,
and the Service.
The educational benefits of critical habitat designation derived
through informing our partners and other members of the public of areas
important for the long-term conservation of the San Bernardino kangaroo
rat have already been and continue to be achieved through: (1)
Development and implementation of the HEMP; (2) the original
designation process in 2002; and (3) publication of the proposed
revisions to critical habitat in 2008, notices of public comment
periods, and the public hearings.
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of inclusion for critical habitat.
As discussed above, Federal agencies must consult with us on actions
that may affect critical habitat and must avoid destroying or adversely
modifying critical habitat. All of the approximately 1,265 ac (512 ha)
of HCMA lands in Unit 2 that are being excluded are on private
property, with the potential Federal nexus for the San Bernardino
kangaroo rat as a result of actions by ACOE. Therefore, including this
area would provide some regulatory benefits under section 7(a) of the
Act.
However, the Cajon Creek HCMA HEMP and associated MOU provides for
the conservation and management of the identified lands. The permanent
conservation of these lands (i.e., conservation easement) is currently
in progress. The HEMP addresses conservation issues from a coordinated,
integrated perspective rather than a piecemeal project-by-project
approach that could result in this area absent this plan, and will
achieve more San Bernardino kangaroo rat conservation than would be
achieved through such multiple site-by-site, project-by-project,
section 7 consultations involving consideration of critical habitat.
Furthermore, the HEMP includes proactive monitoring and management of
conserved lands (as previously described), thereby reducing known
threats to the San Bernardino kangaroo rat and its habitat. These
measures provide assurance that the features essential to the
conservation of the San Bernardino kangaroo rat within the Cajon Creek
HCMA will be protected and managed to conserve this subspecies. In
light of the progress made to establish conservation easements on these
lands and the potential piecemeal project-by-project approach for
future section 7 consultations that may occur on these lands, we
conclude that the potential regulatory benefit of designating this area
as critical habitat is minimal. The HEMP provides as much or more
benefit than a consultation for critical habitat designation conducted
under the standards required by the Ninth Circuit in the Gifford
Pinchot decision.
Benefits of Exclusion--Cajon Creek HCMA HEMP
The Cajon Creek HCMA HEMP provides for conservation bank lands in a
coordinated, integrated manner. The protection and active management of
San Bernardino kangaroo rat and its essential habitat features on HCMA
lands conserved the subspecies at this site and directly contributes to
the survival and recovery of this species.
The exclusion of the Cajon Creek HCMA lands from critical habitat
will help preserve and foster the partnerships that we developed with
Vulcan Materials Co., and the California Department of Fish and Game,
and aid in encouraging other landowners to participate in conservation
planning. Excluding the existing Cajon Creek HCMA lands demonstrates
our good faith effort to work productively with non-Federal entities,
which should encourage initiation and completion of conservation plans.
As discussed above, many landowners and local jurisdictions perceive
critical habitat being designated on lands covered by existing
conservation plans as an unfair and unnecessary regulatory burden given
the expense and time involved in developing and implementing
conservation plans such as the Cajon Creek HCMA HEMP. The exclusion of
this area signals to other private landowners that if they take steps
to put their lands into conservation, they may avoid an additional
layer of regulation, which, as we described above in the ``Conservation
Partnerships on Non-Federal Lands'' section, sometimes acts as a
disincentive for private landowners. Therefore, designation of lands
covered by the HEMP may discourage other landowners from seeking or
completing similar conservation efforts. We believe that fostering
these types of partnerships with non-Federal landowners are critical
for the conservation of the San Bernardino kangaroo rat.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Cajon Creek
HCMA HEMP
As discussed in the ``Benefits of Inclusion'' section, we believe
the regulatory benefit of designating critical habitat on private lands
covered by the Cajon Creek HCMA HEMP would be low. The Cajon Creek HCMA
HEMP addresses conservation issues from a coordinated, integrated
perspective rather than a piecemeal project-by-project approach and
will achieve more San Bernardino kangaroo rat conservation than would
be achieved through multiple site-by-site, project-by-project, section
7 consultations involving consideration of critical habitat.
Furthermore, the Cajon Creek HCMA HEMP provides for the proactive
monitoring and management of conserved lands (as previously described),
reducing known threats to the San Bernardino kangaroo rat or its
habitat.
Conservation and management of San Bernardino kangaroo rat habitat
is essential to the survival and recovery of this subspecies. Such
conservation needs are typically not addressed through the application
of the statutory prohibition on destruction or adverse modification of
critical habitat. The Cajon Creek HCMA HEMP provides as much or more
benefit than a consultation for critical habitat designation conducted
under the standards required by the Ninth Circuit in the Gifford
Pinchot decision. Furthermore, educational benefits that may be derived
from a critical habitat designation are minimal and largely redundant
to the educational benefits achieved through significant State and
local government input during the development of this management plan.
We developed a close partnership with the Cajon Creek HCMA HEMP
participants through the development of this management plan that
incorporates appropriate protections and management of this subspecies'
essential physical and biological features. Those protections are
consistent with the mandates under section 7 of the Act to avoid
destruction or adverse modification of critical habitat and go beyond
that prohibition by including active management and protection of
essential habitat areas. Designation of critical habitat alone does not
achieve recovery or require management of those lands identified in the
critical habitat rule. We believe the recovery benefits of excluding
the Cajon Creek HCMA lands and implementing the HEMP outweigh the
recovery benefits of retaining these lands as critical habitat.
Furthermore, the benefits to recovery of inclusion primarily have
already been met through the identification of those areas most
important to the subspecies. The minimal educational and potential
regulatory benefits of including the Cajon Creek HCMA lands in critical
habitat are small when compared to the impact such a designation could
have
[[Page 61980]]
on our current and future partnerships. By excluding these lands from
designation, we are eliminating a largely redundant layer of regulatory
review for a limited set of projects on non-Federal lands that are
addressed by the management plan and we are helping to preserve our
ongoing partnership with the Cajon Creek HCMA HEMP participants and to
encourage new partnerships with other landowners and jurisdictions.
Those partnerships are critical for the conservation of the San
Bernardino kangaroo rat. Designating critical habitat on non-Federal
lands within areas covered by the Cajon Creek HCMA HEMP could have a
detrimental effect to our partnership with the plan participants and
could be a significant disincentive to the establishment of future
partnerships and management plans with other partners.
We reviewed and evaluated the exclusion of approximately 1,265 ac
(512 ha) of non-Federal lands in Unit 2 from the designation of final
revised critical habitat for the San Bernardino kangaroo rat and
determined that the benefits of excluding these lands outweigh the
benefits of including them. As discussed above, the Cajon Creek HCMA
HEMP will provide for significant preservation and management of the
physical and biological features essential to the conservation of the
San Bernardino kangaroo rat and will help reach the recovery goals for
this subspecies.
Exclusion Will Not Result in Extinction of the Subspecies--Cajon Creek
HCMA HEMP
We determined that the exclusion of non-Federal lands within the
area covered by the Cajon Creek HCMA HEMP from the final revised
designation of critical habitat for the San Bernardino kangaroo rat
will not result in the extinction of the subspecies. The Cajon Creek
HCMA HEMP provides protection and management, in perpetuity of lands
within Unit 2, including the physical and biological features essential
to the conservation of the San Bernardino kangaroo rat. Additionally,
the jeopardy standard of section 7 of the Act and routine
implementation of conservation measures through the section 7 process
provide assurances that the subspecies will not go extinct as a result
of this exclusion.
Western Riverside County Multiple Species Habitat Conservation Plan
(MSHCP)
The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional HCP encompassing about 1.26 million ac (510,000 ha) in
western Riverside County (Units 3 and 5). The MSHCP addresses 146
listed and unlisted ``covered species,'' including the San Bernardino
kangaroo rat. Participants in the MSHCP include 14 cities: The County
of Riverside, including the Riverside County Flood Control and Water
Conservation Agency (County Flood Control), Riverside County
Transportation Commission, Riverside County Parks and Open Space
District, and Riverside County Waste Department; California Department
of Parks and Recreation; and the California Department of
Transportation. The Western Riverside County MSHCP was designed to
establish a multi-species conservation program that minimizes and
mitigates the expected loss of habitat and the incidental take of
covered species. On June 22, 2004, the Service issued a single
incidental take permit (TE-088609-0) under section 10(a)(1)(B) of the
Act to 22 permittees under the MSHCP for a period of 75 years.
The Western Riverside County MSHCP will establish approximately
153,000 ac (61,917 ha) of new conservation lands (Additional Reserve
Lands) to complement the approximate 347,000 ac (140,426 ha) of
existing natural and open space areas designated by the MSHCP as
Public/Quasi-Public (PQP) lands. These PQP lands include those under
Federal ownership, primarily managed by the USFS and BLM, and also
permittee-owned open-space areas (e.g., State parks, County Flood
Control, and county park lands). Federally owned PQP lands are
designated as critical habitat herein. Collectively, the Additional
Reserve Lands and PQP lands form the overall Western Riverside County
MSHCP Conservation Area. The precise configuration of the 153,000 ac
(61,916 ha) of Additional Reserve Lands is not mapped or precisely
identified in the MSHCP, but rather is based on textual descriptions of
a Conceptual Reserve Design within the bounds of a 310,000 ac (125,453
ha) ``Criteria Area'' that is interpreted as implementation of the
MSHCP proceeds.
Specific conservation objectives in the Western Riverside County
MSHCP for the San Bernardino kangaroo rat include providing 4,400 ac
(1,781 ha) of occupied or suitable habitat within the historical
floodplains of the San Jacinto River and Bautista Creek and their
tributaries in the MSHCP Conservation Area. This acreage goal can be
attained through private lands within the Criteria Area that are
targeted for inclusion within the MSHCP Conservation Area as potential
Additional Reserve Lands and/or through coordinated management of PQP
lands. Additionally, the MSHCP requires surveys for the San Bernardino
kangaroo rat as part of the project review process for public and
private projects where suitable habitat is present within a defined
mammal species survey area (see Mammal Species Survey Area Map, Figure
6-5 of the MSHCP, Volume I). For locations with positive survey
results, 90 percent of those portions of the property that provide
long-term conservation value for the subspecies will be avoided until
it is demonstrated that the conservation objectives for the subspecies
are met (Additional Survey Needs and Procedures; MSHCP Volume 1,
section 6.3.2).
The survey requirements, avoidance and minimization measures, and
management for the San Bernardino kangaroo rat (and its PCEs) provided
for in the Western Riverside County MSHCP exceed any conservation value
provided as a result of regulatory protections that have been or may be
afforded through critical habitat designation. Based on the reasoning
provided below, we excluded from Unit 3 and Unit 5 the approximately
595 ac (241 ha) of private lands and permittee-owned PQP lands within
the MSHCP Plan Area from the revised critical habitat designation under
section 4(b)(2) of the Act. The areas excluded are in separate parcels
in the San Jacinto River wash distributed between the Blackburn Road/
Lake Hemet Main Canal area, downstream to the East Main Street Bridge,
and in the Bautista Creek area upstream of the concrete-lined channel.
Lands within these excluded areas are owned by or fall within the
jurisdiction of MSHCP permittees. Projects in these areas conducted or
approved by MSHCP permittees are subject to the conservation
requirements of the MSHCP, including the Additional Survey Needs and
Procedures policy.
Lands within the MSHCP plan area owned by Eastern Municipal Water
District and Lake Hemet Municipal Water District are not subject to the
conservation requirements of the MSHCP through any discretionary
authority of the permittees. Therefore, 506 ac (205 ha) of lands within
Unit 3 and Unit 5 owned by these two water districts are not excluded
from the final revised designation under the Western Riverside County
MSHCP.
The 1998 final listing rule for the San Bernardino kangaroo rat
identified the following primary threats to the San Bernardino kangaroo
rat: Habitat loss, destruction, degradation, and fragmentation due to
sand and gravel mining operations; flood control
[[Page 61981]]
projects; and urban development. As described above, the Western
Riverside County MSHCP provides enhancement of the habitat by removing
or reducing threats to this subspecies and the PCEs. The MSHCP
preserves habitat that supports identified core populations of this
subspecies and therefore provides for recovery.
Benefits of Inclusion--Western Riverside County MSHCP
The inclusion of approximately 595 ac (241 ha) of permittee-owned
or controlled lands within the Western Riverside County MSHCP could be
beneficial because it identifies lands that require management for
conservation of the San Bernardino kangaroo rat. The process of
proposing and finalizing the revised critical habitat rule provided the
Service with the opportunity to evaluate and refine the features or
PCEs essential to the conservation of the subspecies within the
geographical area occupied by the San Bernardino kangaroo rat at the
time of listing, as well as to evaluate whether there are other areas
essential for the conservation of the subspecies. The designation
process included peer review and public comment on the identified
features and areas. This process is valuable to land owners and
managers in developing conservation management plans for identified
areas, as well as any other occupied habitat or suitable habitat that
may not have been included in the Service's determination of essential
habitat.
The educational benefits of designation are small and largely
redundant to those derived through conservation efforts currently being
planned and implemented in the approximately 595 ac (241 ha) of
permittee-owned or controlled lands within the Western Riverside MSHCP.
As described above, the process of developing the Western Riverside
County MSHCP has involved several partners including (but not limited
to) the participating jurisdictions, California Department of Fish and
Game, and Federal agencies. The educational benefits of critical
habitat designation derived through informing Western Riverside County
MSHCP partners and other members of the public of areas important for
the long-term conservation of this subspecies have already been and
continue to be achieved through: (1) Development of the HCP; (2) the
original designation process in 2002; and (3) publication of the
proposed revisions to critical habitat in 2008, notices of public
comment periods, and the public hearings.
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of inclusion for critical habitat.
As discussed above, Federal agencies must consult with us on actions
that may affect critical habitat and must avoid destroying or adversely
modifying critical habitat. There is the potential for future
activities within the lands being excluded having a Federal nexus for
the San Bernardino kangaroo rat as a result of actions by ACOE and the
Federal Highways Administration. Therefore, including this area may
provide some regulatory benefits under section 7(a) of the Act.
However, the Western Riverside County MSHCP addresses conservation
issues from a coordinated, integrated perspective rather than a
piecemeal, project-by-project approach (as would occur on these lands
under sections 7 and 10 of the Act absent this regional plan) and will
achieve more San Bernardino kangaroo rat conservation in the Western
Riverside County MSHCP plan area than we would through section 7
consultations involving consideration of critical habitat. The PCEs
required by the San Bernardino kangaroo rat will benefit by the
conservation measures outlined in the Western Riverside County MSHCP.
In summary, these conservation measures include: Preservation of high
quality habitat; monitoring and management of preserve lands;
restoration and enhancement of habitat; minimization of project
impacts; education of the public and state and local governments; and
conservation of partnerships. Such measures will remove or reduce known
threats to the San Bernardino kangaroo rat and its PCEs in Unit 3 and
Unit 5. The Western Riverside County MSHCP will ensure conservation and
management actions take place that are not required by critical habitat
designation (see ``Benefits of Designating Critical Habitat'' section
above). For example, critical habitat designation does not ensure:
Habitat enhancement and restoration; functional connections to
adjoining habitat; or monitoring of the San Bernardino kangaroo rat
(see discussion above).
In light of the preferable regional scale of conservation planning
utilized in the development of the Western Riverside County MSHCP and
the conservation that has and will occur under the Western Riverside
County MSHCP, we conclude that the potential regulatory benefit of
designating these areas in Unit 3 and Unit 5 as critical habitat is
minimal.
Benefits of Exclusion--Western Riverside County MSHCP
Regional and subregional HCPs foster an ecosystem-based approach to
habitat conservation planning, and once developed, conservation issues
are addressed through a coordinated approach. However, these large and
often costly regional plans are voluntary for the local jurisdiction
that pursue this approach, in the sense that they could require
landowners (e.g., homeowners, developers) to consult with the Service
individually for a section 10 permit. As a result, the local
jurisdiction would incur no costs associated with the landowner's need
for a section 10 permit, requiring the landowner to obtain this permit
prior to issuance of a building permit. However, this approach would
result in uncoordinated, ``patchy'' conservation that would likely not
further the recovery of federally listed species. Rather, by
voluntarily developing these regional plans (versus individual
landowner HCPs), the coordinated landscape-scale conservation results
in preservation of interconnected linkage areas and populations that
support recovery of listed species. We recognize that once an HCP is
permitted, implementation of the conservation measures is not voluntary
in order for permittees to receive incidental take coverage. However,
the benefits of excluding lands under the scenario described above are:
(1) Retaining and fostering the existing partnership and working
relationship with all stakeholders; and (2) encouraging future regional
HCP development or development of other species/habitat conservation
plans. Additionally, exclusion of a HCP (such as the Western Riverside
County MSHCP) demonstrates our good faith effort and working
relationships, which should encourage initiation and completion of
other HCPs.
We developed close partnerships with all participating entities
through the development of the Western Riverside County MSHCP, which
incorporates appropriate protections and management for the San
Bernardino kangaroo rat, its habitat, and the features essential to the
conservation of this subspecies. By excluding 595 ac (241 ha) of lands
in Unit 3 and Unit 5 from designation, we are eliminating an
essentially redundant layer of regulatory review for projects covered
by the Western Riverside County MSHCP, helping to preserve our ongoing
partnership with HCP participants, and encouraging new partnerships
with other landowners and jurisdictions. These partnerships with HCP
[[Page 61982]]
participants are critical for the conservation of the San Bernardino
kangaroo rat.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Western
Riverside County MSHCP
As discussed in the ``Benefits of Inclusion'' section above, we
believe the regulatory benefit of designating critical habitat on
private lands and permittee-owned PQP lands covered by the Western
Riverside County MSHCP would be low. The Western Riverside County MSHCP
addresses conservation issues from a coordinated, integrated
perspective rather than a piecemeal project-by-project approach and
will achieve more San Bernardino kangaroo rat conservation than we
would achieve through multiple site-by-site, project-by-project,
section 7 consultations involving consideration of critical habitat.
Conservation and management of San Bernardino kangaroo rat habitat
is essential to the survival and recovery of this subspecies. Such
conservation needs are typically not addressed through the application
of the statutory prohibition on destruction or adverse modification of
critical habitat. The specific conservation actions, avoidance and
minimization measures, and management for the San Bernardino kangaroo
rat and its PCEs provided by the Western Riverside County MSHCP exceed
any conservation value provided as a result of regulatory protections
that may be afforded through a critical habitat designation. The
Western Riverside County MSHCP provides as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision. The benefits for the conservation of the San Bernardino
kangaroo rat that would occur as a result of designating a small amount
of as critical habitat (e.g., protection afforded through the section
7(a)(2) consultation process) are minimal compared to the overall
conservation benefits for the subspecies that will be realized through
the implementation of the Western Riverside County MSHCP. Furthermore,
educational benefits that may be derived from a critical habitat
designation are minimal and largely redundant to the educational
benefits achieved through significant public, State, and local
government input during the development of the Western Riverside County
MSHCP.
We developed close partnerships with the 22 MSHCP permittees
through the development of this regional HCP that incorporates
appropriate protections and management of this subspecies' essential
physical and biological features. Those protections are consistent with
the mandates under section 7 of the Act to avoid destruction or adverse
modification of critical habitat and go beyond that prohibition by
including active management and protection of essential habitat areas.
Designation of critical habitat alone does not achieve recovery or
require management of those lands identified in the critical habitat
rule. We believe the conservation benefits for the San Bernardino
kangaroo rat that would occur as a result of designating those 595 ac
(241 ha) in Unit 3 and Unit 5 as critical habitat (e.g., protection
afforded through the section 7(a)(2) consultation process) is minimal
compared to the overall conservation benefits for the subspecies that
will be realized through the implementation of the Western Riverside
County MSHCP. Furthermore, the benefits to recovery of inclusion
primarily have already been met through the identification of those
areas most important to the subspecies. By excluding these lands from
designation, we are eliminating a largely redundant layer of regulatory
review for a limited set of projects on non-Federal lands that are
addressed by the MSHCP and we are helping to preserve our ongoing
partnerships with the permittees and to encourage new partnerships with
other landowners and jurisdictions. Those partnerships, and the
landscape-level, multiple-species conservation planning efforts they
promote, are critical for the conservation of the San Bernardino
kangaroo rat. Designating critical habitat on non-Federal lands within
the Western Riverside County MSHCP could have a detrimental effect to
our partnerships with the 22 MSHCP permittees and could be a
significant disincentive to the establishment of future partnerships
and HCPs with other landowners.
We reviewed and evaluated the exclusion of 595 ac (241 ha) of
private and permittee-owned PQP lands within the Western Riverside
County MSHCP plan area from the final revised critical habitat
designation for the San Bernardino kangaroo rat and determined that the
benefits of excluding these lands in Unit 3 and Unit 5 outweigh the
benefits of including them. As discussed above, the MSHCP will provide
for significant preservation and management of habitat for and features
essential to the conservation of the San Bernardino kangaroo rat and
will help reach the recovery goals for this subspecies.
Exclusion Will Not Result in Extinction of the Subspecies--Western
Riverside County MSHCP
In keeping with our analysis and conclusion detailed in our
biological opinion for the Western Riverside County MSHCP (Service
2004, pp. 298-299), we have determined that the exclusion of 595 ac
(241 ha) of private lands and permittee-owned PQP lands within the
Western Riverside County MSHCP plan area from the final designation of
critical habitat for the San Bernardino kangaroo rat will not result in
the extinction of the subspecies. The MSHCP provides protection and
management, in perpetuity, of lands that meet the definition of
critical habitat, including PCEs, for the subspecies in Unit 3 and Unit
5. Additionally, the jeopardy standard of section 7 of the Act and
routine implementation of conservation measures through the section 7
process provide assurances that the subspecies will not go extinct as a
result of this exclusion.
Application of Section 4(b)(2)--Other Relevant Impacts--Soboba Band of
Luiseno Indians Settlement Act
Hemet/San Jacinto Integrated Recharge Recovery Project
On July 31, 2008, the President signed the Soboba Band of Luiseno
Indians Settlement Act (Pub. L. 110-297). As part of its obligations
under the Settlement Agreement associated with this legislation, the
Eastern Municipal Water District will implement an integrated water
recharge and recovery program that includes the construction of
recharge basins and well sites at the confluence of the San Jacinto
River and Bautista Creek. This project is designed to provide water to
the Soboba Band of Luiseno Indians in keeping with the Tribe's water
rights. The Service issued a biological opinion to the ACOE for this
project on November 16, 2006 (Service 2006, FWS-WRIV-4051.5). The ACOE
reinitiated consultation for this project on January 29, 2008 (see
Bautista Creek discussion under the ``Summary of Changes From the 2007
Proposed Rule To Revise Critical Habitat'' section of this rule for
further information). The project will impact approximately 39 ac (16
ha) of land within the floodplain.
Benefits of Inclusion--Hemet/San Jacinto Integrated Recharge Recovery
Project
The inclusion of 39 ac (16 ha) of Eastern Municipal Water District
lands in this final revised critical habitat designation could be
beneficial because it identifies lands that contain the
[[Page 61983]]
features essential to the conservation of the species. The process of
proposing and finalizing the revised critical habitat rule provided the
Service with the opportunity to evaluate and refine the features or
PCEs essential to the conservation of the subspecies within the
geographical area occupied by San Bernardino kangaroo rat at the time
of listing, as well as to evaluate whether there are other areas
essential for the conservation of the subspecies. The designation
process included peer review and public comment on the identified
features and areas. This process is valuable to land owners and
managers in developing conservation management plans for identified
areas, as well as any other occupied habitat or suitable habitat that
may not have been included in the Service's determination of essential
habitat.
The educational benefits of critical habitat designation derived
through informing our partners and other members of the public of areas
important for the long-term conservation of San Bernardino kangaroo rat
have already been achieved through previously designating this area as
critical habitat and through the section 7 consultation process on the
proposed action (Service 2006, pp. 1-41).
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of inclusion for critical habitat.
As discussed previously, Federal agencies must consult with us on
actions that may affect critical habitat and must avoid destroying or
adversely modifying critical habitat. On these approximately 39 ac (16
ha) of Eastern Municipal Water District lands in Unit 3 that are being
excluded, a Federal nexus exists for the San Bernardino kangaroo rat as
a result of actions by the ACOE. Therefore, including this area would
provide some regulatory benefits under section 7(a) of the Act.
Benefits of Exclusion--Hemet/San Jacinto Integrated Recharge Recovery
Project
The Soboba Band of Luiseno Indians Settlement Act and its
associated Settlement Agreement represent a historic settlement of a
decades-long water rights dispute under which the Tribe will receive an
adequate and secure future water supply of 9,000 acre feet per year,
$18 million from local water districts for economic development, $11
million from the Federal government for water development, and 128 ac
(52 ha) of land near Diamond Valley for commercial development. In
turn, the Tribe agreed to forebear some portion of their water rights
for 50 years, which has a monetary value of more than $58 million.
Additionally, the Settlement Act provides local water districts and
Tribal neighbors: 7,500 acre feet of new imported water per year until
at least 2035; $10 million in Federal funds to help recharge the
aquifer with imported water; up to 100 acres (41 ha) of Soboba Band of
Luiseno Indians reservation land for endangered species habitat; use of
up to 4,900 acre feet of Soboba Band of Luiseno Indians water for 50
years for basin restoration; and the promise of new jobs and economic
stimulus from Soboba Band of Luiseno Indians commercial development.
The partnerships developed during the negotiation of this settlement
are unique and are viewed as a framework for resolution of other water
rights disputes. Implementation of the Settlement Agreement is expected
to provide for restoration of the groundwater basin. Excluding the 39
ac (16 ha) of lands in Unit 3 from the designation will remove any
perception that the regulatory impact of the critical designation may
impede successful implementation of this important agreement, and will
help to preserve our ongoing partnership with this project's
participants and the signatories to the Settlement Agreement.
Additionally, this exclusion will encourage new partnerships with other
landowners, water districts, and other jurisdictions. We believe
encouraging such partnerships are critical for the conservation of the
San Bernardino kangaroo rat.
Benefits of Exclusion Outweigh Benefits of Inclusion--Hemet/San Jacinto
Integrated Recharge Recovery Project
We reviewed and evaluated the benefits of inclusion and benefits of
exclusion for the approximately 39 ac (16 ha) of non-Federal Eastern
Municipal Water District lands in Unit 3, and determined that the
benefits of excluding these lands outweigh the benefits of including
them as critical habitat. We acknowledge that the designation of
critical habitat on these lands would likely provide a conservation
benefit to the San Bernardino kangaroo rat through the section 7(a)(2)
consultation process. However, as discussed above, the benefits of
excluding the area covered by the Hemet/San Jacinto Integrated Recharge
Recovery Project are high and outweigh any regulatory or other benefit
of including these lands in critical habitat, as such exclusion will
help to preserve and foster the partnerships and inter-governmental
relationships that have been developed over many years to achieve
sustainable water management and habitat restoration in the San Jacinto
River Basin. By excluding these lands, we will remove any additional
regulatory impact resulting from a critical habitat designation that
may potentially interfere with implementation of the Settlement
Agreement. In addition to restoration of the groundwater basin,
implementation of the historic Settlement Agreement will restore the
Soboba Band of Luise[ntilde]o Indians' water rights and allow the Tribe
to manage their water resources for the betterment of the Tribe, which
is expected to provide an economic stimulus to the Tribe and
surrounding communities as well as providing for restoration of the
groundwater basin.
Exclusion Will Not Result in Extinction of the Subspecies--Hemet/San
Jacinto Integrated Recharge Recovery Project
We determined that the exclusion of the 39 ac (16 ha) of non-
Federal lands within the area covered by the Hemet/San Jacinto
Integrated Recharge Recovery Project from the final revised designation
of critical habitat for the San Bernardino kangaroo rat will not result
in the extinction of the subspecies. The area is occupied by the San
Bernardino kangaroo rat, and the protections afforded through section 9
of the Act, the jeopardy standard of section 7 of the Act, and routine
implementation of conservation measures through the section 7 process
provide assurances that the subspecies will not go extinct as a result
of this exclusion.
Required Determinations
Takings--Executive Order 12630
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the San Bernardino kangaroo rat 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 final revised designation
of critical habitat for the San Bernardino kangaroo rat does not pose
significant takings implications.
[[Page 61984]]
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under E.O. 12866. OMB bases its determination
upon the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
Civil Justice Reform--Executive Order 12988
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 critical habitat in accordance
with the provisions of the Act. This final rule uses standard property
descriptions and identifies the physical and biological features
essential to the conservation of the species within the designated
areas to assist the public in understanding the habitat needs of the
San Bernardino kangaroo rat.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, these final critical habitat designations with
appropriate State resource agencies in California. During the public
comment periods, we contacted appropriate State and local agencies and
jurisdictions, and invited them to comment on the proposed revised
critical habitat designation for the San Bernardino kangaroo rat. In
total, we responded to five letters received during these comment
periods from local governments (see ``Summary of Comments and
Recommendations'' section). None of the critical habitat designation
for the San Bernardino kangaroo rat occurs on State land, and,
therefore, will have little impact on State and local governments and
their activities. The designations may have some benefit to these
governments in that the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
primary constituent elements of the habitat are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Energy Supply, Distribution, or Use--Executive Order 13211
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use. E.O.
13211 requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. This revision to critical habitat for the
San Bernardino kangaroo rat is not considered a significant regulatory
action under E.O. 12866. OMB has provided guidance for implementing
this Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared without the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis (Appendix C), energy-related
impacts associated with San Bernardino kangaroo rat conservation
activities within the areas included in the final designation of
critical habitat are not expected. As such, the final designation of
critical habitat is not expected to significantly affect energy
supplies, distribution, or use, and a Statement of Energy Effects is
not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, the Service
makes the following findings:
(1) This rule would 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, or 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; Aid to
Families with Dependent Children 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 section 7 of the Act, the only regulatory effect is that Federal
agencies must ensure that their actions do not destroy or adversely
modify critical habitat. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it would 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. As discussed in the economic analysis, anticipated future
impacts in areas designated as critical habitat will be borne by the
Federal Government and San Bernardino County Flood
[[Page 61985]]
Control District (SBCFCD); in areas excluded from the final
designation, the total anticipated future impacts are not attributable
to the designation of critical habitat. By definition, Federal agencies
are not considered small entities, although the activities they fund or
permit may be proposed or carried out by small entities. The SBCFCD is
also not considered to be a small entity because it services a
population exceeding the criteria for a ``small entity.'' As such, a
Small Government Agency Plan is not required.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)),
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The Small Business Regulatory
Enforcement Fairness Act amended the Regulatory Flexibility Act to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities. In this
final rule, we are certifying that the critical habitat designation for
the San Bernardino kangaroo rat will not have a significant economic
impact on a substantial number of small entities. The following
discussion explains our rationale.
According to the Small Business Administration, 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; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the revised designation of critical habitat for the
San Bernardino kangaroo rat would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as residential and
commercial development. We considered each industry or category
individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and
thus will not be affected by the designation of critical habitat.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies; non-Federal
activities are not affected by the designation.
In areas where the subspecies is present, Federal agencies already
are required to consult with us under section 7 of the Act on
activities they fund, permit, or implement that may affect the San
Bernardino kangaroo rat (see Section 7 Consultation section) or their
critical habitat. Future consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
existing consultation process. In the case of completed consultations
for ongoing Federal activities, however, the Federal agency would be
required to reinitiate consultation (see Application of the ``Adverse
Modification'' Standard section). Designation of critical habitat, in
that case, could result in an additional economic impact on small
entities.
In our final economic analysis of the proposed revision of critical
habitat, we evaluated the potential economic effects on small business
entities resulting from conservation actions related to the proposed
revision of critical habitat for the San Bernardino kangaroo rat. The
analysis is based on the estimated incremental impacts associated with
the rulemaking as described in section 2 of the analysis. The analysis
evaluates the potential for economic impacts related to activity
categories including water conservation, flood control, and
development. Impacts of conservation activities are not anticipated to
affect small entities in the following categories: Fire management on
Federal lands; invasive, nonnative plant species management on Federal
lands; recreation management on Federal lands; and surveying,
monitoring, and other activities on Federal lands. Land managers which
may be impacted by the proposed rule include the BLM, USFS, SBCFCD, and
private landowners. Of the entities that are likely to bear incremental
impacts, there are no entities identified as small businesses, small
organizations, or small government jurisdictions. The Federal agencies
(BLM and USFS) and the special district (SBCFCD) do not meet the
criteria for a small business. Individual private landowners in San
Bernardino kangaroo rat critical habitat are not considered small
businesses. Please refer to our economic analysis (Appendix C) of the
proposed revision of critical habitat for a more detailed discussion of
potential economic impacts.
In summary, we considered whether this final rule to revise
critical habitat would result in a significant economic effect on a
substantial number of small entities. For the above reasons and based
on currently available information, we certify that the rule will not
have a significant economic impact on a substantial number of small
entities. Therefore, a regulatory flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et
seq.)
Under the Small Business Regulatory Enforcement Fairness Act, 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).
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we
[[Page 61986]]
do not need to prepare environmental analyses as defined by NEPA 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 in the courts of the Ninth Circuit Court of Appeals (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
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. 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.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of 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.
The 2002 designation of critical habitat (67 FR 19812) for the San
Bernardino kangaroo rat included 710 ac (290 ha) of land within the
Soboba Band of Luise[ntilde]o Indians Reservation. At the time of the
2002 designation, we included these lands as critical habitat for the
San Bernardino kangaroo rat because we believed that the area supported
several populations and provided continuity between two adjacent areas
of essential habitat. These lands are adjacent to occupied areas that
we are designating as critical habitat within the San Jacinto wash
(Unit 3). However, at the time of the drafting of this final rule, we
lack information regarding the subspecies' location and habitat on
Soboba Band of Luise[ntilde]o Indians Reservation lands and are unable
to thoroughly assess either the status of the subspecies on those lands
or the management practices currently employed by the Tribe. Though we
continue to believe, due to the continuity of these lands with known
occupied habitat, that these Tribal lands are likely occupied, at least
in part, by the San Bernardino kangaroo rat, we do not know whether
these lands contain features that are essential to the conservation of
the subspecies. As a result, and in light of Secretarial Order 3206, we
are not including these Tribal lands in the area designated as revised
critical habitat for the San Bernardino kangaroo rat. We are committed
to maintaining a positive working relationship with the Tribes and will
continue our attempts to work with them on conservation measures
benefiting the San Bernardino kangaroo rat.
References Cited
A complete list of all references cited in this rulemaking is
available on the Internet at http://www.regulations.gov and http://
www.fws.gov/carlsbad/.
Author(s)
The primary authors of this rulemaking are staff at the Carlsbad
Fish and Wildlife Office, Carlsbad, California.
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. Amend Sec. 17.95(a) by revising the entry for ``San Bernardino
Kangaroo Rat (Dipodomys merriami parvus)'' to read as follows:
Sec. 17.95 Critical habitat--wildlife.
(a) Mammals.
* * * * *
San Bernardino Kangaroo Rat (Dipodomys merriami parvus)
(1) Critical habitat units are depicted for San Bernardino and
Riverside Counties, California, on the maps below.
(2) The PCEs of critical habitat for the San Bernardino kangaroo
rat are the habitat components that provide:
(i) Alluvial fans, washes, and associated floodplain areas
containing soils consisting predominately of sand, loamy sand, sandy
loam, and loam, which provide burrowing habitat necessary for
sheltering and rearing offspring, storing food in surface caches, and
movement between occupied patches;
(ii) Upland areas adjacent to alluvial fans, washes, and associated
floodplain areas containing alluvial sage scrub habitat and associated
vegetation, such as coastal sage scrub and chamise chaparral, with up
to approximately 50 percent canopy cover providing protection from
predators, while leaving bare ground and open areas necessary for
foraging and movement of this subspecies; and
(iii) Upland areas adjacent to alluvial fans, washes, and
associated floodplain areas, which may include marginal habitat such as
alluvial sage scrub with greater than 50 percent canopy cover with
patches of suitable soils that support individuals for re-population of
wash areas following flood events. These areas may include agricultural
lands, areas of inactive aggregate mining activities, and urban/
wildland interfaces.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, airports, roads, other paved areas, and the land
on which such structures are located) existing on the effective date of
this rule and not containing one or more of the PCEs.
(4) Data layers defining map units were created on a base of NAIP
(USDA) 1:24,000 maps, and critical habitat units were then mapped using
Universal Transverse Mercator (UTM) coordinates.
(5) Note: Index map of critical habitat units for the San
Bernardino kangaroo rat follows:
BILLING CODE 4310-55-P
[[Page 61987]]
[GRAPHIC] [TIFF OMITTED] TR17OC08.000
BILLING CODE 4310-55-C
(6) Unit 1: Santa Ana River Wash, San Bernardino County,
California. From USGS 1:24,000 quadrangles San Bernardino North and
Devore.
[[Page 61988]]
(i) Land bounded by the following Universal Transverse Mercator
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 482433,
3777208; 482510, 3777208; 482472, 3777140; 482478, 3776911; 482612,
3776482; 482627, 3776397; 482637, 3775622; 482488, 3775622; 482355,
3775366; 482348, 3775149; 482364, 3774946; 482386, 3774912; 482150,
3774673; 482081, 3774571; 481748, 3774155; 481621, 3773744; 481590,
3773748; 481552, 3773754; 481464, 3773760; 481227, 3773664; 481110,
3773680; 481067, 3773702; 481054, 3773704; 481017, 3773705; 480939,
3773677; 480770, 3773522; 480770, 3773486; 480755, 3773486; 480754,
3773175; 480754, 3773170; 480731, 3773170; 480731, 3773473; 480731,
3773532; 480731, 3773589; 480929, 3773768; 481548, 3774498; 481546,
3774500; 481646, 3774625; 481627, 3774739; 481723, 3774752; 481967,
3775193; 481996, 3775295; 481999, 3775520; 482088, 3775527; 482148,
3775727; 482358, 3776254; 482367, 3776695; 482342, 3776902; 482296,
3777059; thence returning to 482433, 3777208; land bounded by 486178,
3774253; 486118, 3774252; 486084, 3774218; 486083, 3774217; 486063,
3774197; 486030, 3774165; 485959, 3774096; 485933, 3774070; 485929,
3774066; 485908, 3774045; 485869, 3774005; 485866, 3774003; 485856,
3773996; 485830, 3773978; 485790, 3773949; 485779, 3773940; 485768,
3773931; 485752, 3773918; 485752, 3773918; 485752, 3773918; 485753,
3773918; 485785, 3773919; 485786, 3773919; 485851, 3773921; 485843,
3773910; 485801, 3773869; 485762, 3773819; 485724, 3773760; 485653,
3773680; 485553, 3773626; 485555, 3773539; 484779, 3773534; 484628,
3773535; 484460, 3773521; 484384, 3773499; 484335, 3773457; 484273,
3773434; 484214, 3773422; 484135, 3773370; 483968, 3773284; 483963,
3773284; 483962, 3773151; 483165, 3773148; 483155, 3772707; 483175,
3772709; 483184, 3772710; 483212, 3772710; 483968, 3772732; 483982,
3772732; 483978, 3772346; 483972, 3772037; 484020, 3772040; 484021,
3772023; 484198, 3772011; 484257, 3772092; 484782, 3772139; 484780,
3772338; 484777, 3772734; 485573, 3772725; 485573, 3772735; 485567,
3772990; 485567, 3773018; 485564, 3773122; 485969, 3773131; 486375,
3773140; 486960, 3773152; 487249, 3772852; 487836, 3772852; 487988,
3772810; 488127, 3772819; 488275, 3772838; 488435, 3772894; 488565,
3772818; 489104, 3772812; 489682, 3773161; 489736, 3773231; 489949,
3773320; 490054, 3773282; 490235, 3773380; 490237, 3773277; 490256,
3773260; 490255, 3773255; 490255, 3773248; 490254, 3773241; 490253,
3773235; 490251, 3773224; 490249, 3773218; 490248, 3773214; 490246,
3773208; 490245, 3773205; 490242, 3773198; 490238, 3773188; 490235,
3773181; 490232, 3773175; 490227, 3773167; 490224, 3773162; 490203,
3773129; 490172, 3773081; 490138, 3773028; 490135, 3773031; 490053,
3772906; 489911, 3772688; 489904, 3772676; 489642, 3772302; 489637,
3772295; 489628, 3772281; 489558, 3772182; 489546, 3772168; 489540,
3772156; 489535, 3772143; 489531, 3772132; 489527, 3772106; 489527,
3772092; 489514, 3772094; 489484, 3772101; 489491, 3772085; 489552,
3771945; 489606, 3771691; 489739, 3771615; 489778, 3771536; 490139,
3771314; 490251, 3771275; 490362, 3771186; 490568, 3771101; 490581,
3771044; 490828, 3771009; 490930, 3770866; 490949, 3770742; 491032,
3770714; 491032, 3770715; 491059, 3770715; 491097, 3770703; 491142,
3770693; 491174, 3770705; 491202, 3770704; 491250, 3770685; 491293,
3770664; 491380, 3770670; 491439, 3770674; 491476, 3770671; 491515,
3770689; 491537, 3770684; 491549, 3770689; 491617, 3770700; 491652,
3770703; 491670, 3770703; 491686, 3770708; 491707, 3770703; 491733,
3770688; 491760, 3770686; 491795, 3770687; 491827, 3770683; 491850,
3770675; 491877, 3770683; 491903, 3770684; 491966, 3770680; 491990,
3770671; 492044, 3770663; 492089, 3770660; 492107, 3770664; 492121,
3770662; 492150, 3770649; 492174, 3770632; 492235, 3770626; 492287,
3770632; 492341, 3770633; 492377, 3770635; 492408, 3770635; 492430,
3770630; 492454, 3770613; 492484, 3770615; 492503, 3770622; 492528,
3770629; 492556, 3770623; 492585, 3770621; 492608, 3770622; 492631,
3770646; 492664, 3770673; 492689, 3770690; 492728, 3770708; 492788,
3770715; 492838, 3770712; 492867, 3770710; 492893, 3770710; 492942,
3770722; 493008, 3770721; 493071, 3770728; 493109, 3770725; 493169,
3770711; 493210, 3770706; 493249, 3770705; 493272, 3770690; 493286,
3770684; 493312, 3770680; 493353, 3770680; 493389, 3770691; 493420,
3770719; 493448, 3770719; 493477, 3770718; 493529, 3770744; 493567,
3770763; 493603, 3770784; 493603, 3770798; 493621, 3770807; 493650,
3770798; 493673, 3770812; 493707, 3770827; 493722, 3770849; 493753,
3770890; 493790, 3770903; 493814, 3770932; 493838, 3770965; 493870,
3770976; 493897, 3771014; 493920, 3771030; 493945, 3771020; 493990,
3771003; 494023, 3771003; 494058, 3771017; 494092, 3771036; 494112,
3771068; 494134, 3771085; 494155, 3771117; 494182, 3771145; 494198,
3771148; 494221, 3771168; 494530, 3771168; 494534, 3771164; 494885,
3771167; 494829, 3771114; 494801, 3771078; 494764, 3771060; 494709,
3771058; 494676, 3771045; 494661, 3771022; 494625, 3771007; 494584,
3770923; 494545, 3770878; 494523, 3770849; 494474, 3770791; 494450,
3770755; 494427, 3770710; 494409, 3770688; 494375, 3770658; 494362,
3770626; 494321, 3770621; 494187, 3770621; 494080, 3770610; 493989,
3770600; 493892, 3770580; 493800, 3770550; 493759, 3770543; 493729,
3770528; 493679, 3770505; 493650, 3770480; 493623, 3770471; 493599,
3770476; 493569, 3770480; 493545, 3770471; 493523, 3770463; 493502,
3770464; 493487, 3770469; 493474, 3770469; 493457, 3770464; 493336,
3770443; 493234, 3770425; 493158, 3770419; 493097, 3770413; 493061,
3770411; 493066, 3770406; 493082, 3770397; 493082, 3770389; 493069,
3770392; 493054, 3770397; 493037, 3770398; 493035, 3770399; 492992,
3770422; 492923, 3770437; 492815, 3770459; 492664, 3770479; 492330,
3770501; 492032, 3770524; 491898, 3770533; 491795, 3770536; 491696,
3770531; 491433, 3770524; 491196, 3770529; 490853, 3770538; 490791,
3770523; 490354, 3770790; 490049, 3771055; 489624, 3771408; 489247,
3771737; 489233, 3771730; 489195, 3771766; 489156, 3771800; 489100,
3771838; 489056, 3771872; 489040, 3771882; 488989, 3771914; 488941,
3771943; 488921, 3771956; 488896, 3771969; 488869, 3771987; 488812,
3772014; 488740, 3772046; 488691, 3772067; 488662, 3772080; 488635,
3772090; 488597, 3772107; 488523, 3772127; 488441, 3772148; 488353,
3772171; 488320, 3772172; 488194, 3772172; 488174, 3772175; 488143,
3772186; 488128, 3772192; 488109, 3772196; 488057, 3772201; 487983,
3772200; 487921, 3772198; 487854, 3772191; 487798, 3772186; 487738,
3772177; 487698, 3772167; 487688, 3772165; 487651, 3772155; 487603,
3772144; 487578, 3772136; 487543, 3772128; 487492, 3772114; 487449,
3772104; 487424, 3772097; 487392, 3772088; 487372, 3772085; 487358,
3772082; 487343, 3772081; 487319, 3772078; 487322, 3772063; 487323,
3772023; 487436, 3771514; 487188, 3771518; 487209, 3771571; 487180,
3771590; 487180, 3771624; 485815, 3771615; 485590, 3771539; 485590,
[[Page 61989]]
3771542; 485488, 3771545; 485412, 3771501; 485282, 3771412; 485247,
3771450; 485161, 3771406; 485132, 3771415; 484866, 3771415; 484742,
3771485; 484624, 3771514; 484412, 3771510; 484352, 3771473; 484231,
3771469; 484069, 3771532; 484021, 3771532; 483872, 3771488; 483710,
3771485; 483583, 3771510; 483380, 3771580; 483374, 3771576; 483352,
3771632; 483272, 3771646; 483209, 3771670; 483159, 3771672; 483159,
3771674; 483080, 3771709; 482980, 3771761; 482999, 3771872; 482656,
3771948; 482643, 3771914; 482475, 3772002; 482354, 3772060; 482304,
3772060; 482294, 3772110; 482154, 3772117; 482127, 3772144; 482126,
3772206; 482062, 3772206; 481970, 3772307; 481518, 3772310; 481515,
3772426; 481295, 3772430; 480869, 3772419; 480763, 3772407; 480757,
3772406; 480758, 3772526; 480758, 3772530; 480758, 3772637; 480758,
3772719; 480757, 3773100; 481007, 3773063; 481231, 3773133; 481387,
3773107; 481529, 3773153; 481532, 3773154; 481579, 3773163; 481607,
3773157; 481568, 3772747; 481580, 3772743; 481747, 3772743; 482026,
3772743; 482143, 3772692; 482198, 3772685; 482255, 3772679; 482282,
3772679; 482366, 3772681; 482368, 3772681; 482368, 3772678; 482412,
3772682; 482415, 3772682; 482418, 3772682; 482431, 3772685; 482461,
3772691; 482466, 3772694; 482472, 3772695; 482487, 3772705; 482507,
3772716; 482528, 3772732; 482533, 3772736; 482564, 3772760; 482618,
3772806; 482674, 3772861; 482695, 3772879; 482708, 3772895; 482735,
3772922; 482766, 3772963; 482782, 3772980; 482781, 3772986; 482796,
3773011; 482720, 3773048; 482825, 3773282; 482909, 3773447; 482958,
3773513; 483015, 3773553; 483118, 3773580; 483182, 3773580; 483261,
3773580; 483325, 3773585; 483436, 3773602; 483554, 3773602; 483580,
3773626; 483629, 3773687; 483682, 3773741; 483739, 3773784; 483809,
3773811; 483833, 3773841; 483843, 3773861; 483893, 3773871; 483940,
3773895; 483970, 3773908; 483982, 3773910; 483982, 3773930; 484666,
3773926; 484678, 3773928; 484688, 3773927; 484698, 3773934; 484725,
3773942; 484763, 3773944; 484807, 3773966; 484824, 3773978; 484864,
3773982; 484914, 3773988; 484961, 3774019; 485013, 3774025; 485068,
3774031; 485128, 3774048; 485130, 3774051; 485219, 3774081; 485282,
3774087; 485320, 3774106; 485363, 3774132; 485431, 3774134; 485488,
3774134; 485540, 3774140; 485550, 3774142; 485550, 3774140; 485550,
3774114; 485755, 3774123; 485755, 3774123; 485754, 3774051; 485548,
3773967; 485548, 3773966; 485548, 3773966; 485548, 3773965; 485548,
3773965; 485547, 3773927; 485547, 3773927; 485547, 3773922; 485547,
3773922; 485547, 3773912; 485547, 3773912; 485547, 3773912; 485601,
3773913; 485620, 3773914; 485650, 3773944; 485754, 3774051; 485754,
3774051; 485754, 3774051; 485754, 3774051; 485754, 3774051; 485832,
3774096; 485846, 3774105; 485871, 3774124; 485875, 3774126; 485876,
3774128; 485922, 3774178; 485951, 3774215; 485923, 3774214; 485923,
3774214; 485923, 3774214; 485898, 3774214; 485858, 3774213; 485858,
3774213; 485804, 3774211; 485829, 3774225; 485871, 3774243; 485914,
3774271; 486002, 3774283; 486041, 3774283; 486107, 3774283; 486164,
3774283; thence returning to 486178, 3774253; land bounded by 483188,
3772080; 483188, 3772080; 483185, 3771948; 483187, 3771946; 483200,
3771933; 483200, 3771933; 483200, 3771933; 483210, 3771944; 483210,
3771944; 483210, 3771944; 483210, 3771944; 483215, 3771944; 483272,
3771944; 483409, 3771944; 483848, 3771945; 483902, 3771945; 483913,
3771945; 483914, 3771945; 483971, 3771945; 483971, 3771945; 483970,
3771985; 483970, 3772008; 483969, 3772344; 483600, 3772345; 483374,
3772346; 483211, 3772346; 483211, 3772346; 483211, 3772076; thence
returning to 483188, 3772080; land bounded by 482603, 3772347; 482394,
3772348; 482385, 3772348; 482376, 3772348; 482367, 3772348; 482367,
3772348; 482367, 3772336; 482368, 3772263; 482368, 3772227; 482368,
3772227; 482368, 3772227; 482377, 3772221; 482537, 3772147; 482622,
3772108; 482644, 3772097; 482972, 3771945; 482972, 3771945; 482989,
3771930; 483032, 3771892; 483032, 3771892; 483032, 3771892; 483071,
3771893; 483159, 3771893; 483159, 3771893; 483160, 3771893; 483160,
3771972; 483160, 3772072; 483160, 3772089; 483160, 3772346; 482602,
3772348; 482603, 3772347; thence returning to 482603, 3772347; land
bounded by 487253, 3772752; 487213, 3772753; 487209, 3772753; 487205,
3772753; 487202, 3772753; 487184, 3772754; 487184, 3772754; 487178,
3772754; 487178, 3772754; 486925, 3772750; 486908, 3772749; 486887,
3772749; 486778, 3772747; 486778, 3772747; 486778, 3772618; 486779,
3772346; 486463, 3772343; 486380, 3772342; 486380, 3772362; 486377,
3772741; 485975, 3772734; 485975, 3772732; 485976, 3772665; 485980,
3772361; 485981, 3772338; 485981, 3772338; 485582, 3772333; 485582,
3772333; 485573, 3772333; 485182, 3772335; 485183, 3771998; 485184,
3771948; 485184, 3771944; 485184, 3771940; 484909, 3771941; 484782,
3771941; 484782, 3771945; 484782, 3771992; 484782, 3771994; 484445,
3771996; 484381, 3771996; 484381, 3771943; 484381, 3771943; 484381,
3771882; 484381, 3771881; 484381, 3771879; 484381, 3771875; 484381,
3771824; 484381, 3771819; 484383, 3771819; 484482, 3771819; 484482,
3771819; 484693, 3771820; 484693, 3771820; 484782, 3771821; 484782,
3771821; 484852, 3771821; 484918, 3771821; 485184, 3771821; 485184,
3771821; 485334, 3771821; 485577, 3771821; 485595, 3771821; 485595,
3771821; 485595, 3771822; 485595, 3771840; 485595, 3771841; 485586,
3771875; 485585, 3771939; 485594, 3771939; 485650, 3771939; 485651,
3771939; 485653, 3771939; 485983, 3771941; 485983, 3771941; 485983,
3771945; 485983, 3771961; 485983, 3771987; 485982, 3772032; 485983,
3772032; 486380, 3772143; 486380, 3772143; 486434, 3772144; 486534,
3772145; 486556, 3772146; 486580, 3772146; 486587, 3772146; 486896,
3772151; 486935, 3772151; 486981, 3772152; 487032, 3772153; 487119,
3772154; 487118, 3772179; 487118, 3772293; 487117, 3772350; 487117,
3772350; 487167, 3772350; 487173, 3772350; 487177, 3772350; 487178,
3772350; 487178, 3772350; 487213, 3772350; 487214, 3772350; 487223,
3772350; 487226, 3772350; 487227, 3772350; 487229, 3772350; 487229,
3772350; 487232, 3772350; 487233, 3772350; 487302, 3772349; 487303,
3772349; 487303, 3772349; 487309, 3772348; 487310, 3772348; 487586,
3772344; 487674, 3772343; 487726, 3772342; 487758, 3772342; 487763,
3772342; 487768, 3772342; 487775, 3772341; 487790, 3772341; 487806,
3772341; 487828, 3772341; 487849, 3772340; 487849, 3772340; 487995,
3772338; 487995, 3772338; 488139, 3772336; 488139, 3772336; 488140,
3772340; 488139, 3772336; 488144, 3772336; 488403, 3772332; 488403,
3772332; 488409, 3772332; 488607, 3772329; 488614, 3772329; 488614,
3772329; 488614, 3772329; 488614, 3772329; 488803, 3772326; 488811,
3772326; 488811, 3772326; 488812, 3772447; 488812, 3772526; 488812,
3772526; 488608, 3772528; 488608, 3772528; 488471, 3772529; 488405,
3772530; 488404, 3772530; 488390, 3772530; 488351, 3772531; 488230,
3772532; 488230, 3772532; 488122, 3772533; 488122, 3772533; 488010,
[[Page 61990]]
3772533; 488008, 3772533; 487996, 3772533; 487978, 3772543; 487842,
3772614; 487838, 3772617; 487808, 3772632; 487808, 3772632; 487808,
3772632; 487808, 3772632; 487790, 3772642; 487787, 3772643; 487778,
3772648; 487589, 3772747; 487589, 3772747; 487290, 3772752; 487290,
3772752; 487290, 3772752; 487254, 3772752; thence returning to 487253,
3772752; land bounded by 480141, 3773180; 480561, 3773170; 480358,
3773169; 480178, 3773168; 480175, 3773072; 479952, 3773074; 480084,
3773116; 480141, 3773134; thence returning to 480141, 3773180; and land
bounded by 479941, 3773070; 479952, 3773074; 479949, 3772973; 479948,
3772898; 479145, 3772565; 479144, 3772356; 479994, 3772358; 480148,
3772359; 479833, 3772330; 479557, 3772285; 479202, 3772222; 479151,
3772184; 479140, 3772004; 478976, 3771948; 478779, 3771945; 478713,
3771904; 478522, 3771812; 478287, 3771815; 478205, 3771764; 477763,
3771491; 477697, 3771437; 477608, 3771412; 477525, 3771383; 477309,
3771320; 477170, 3771266; 477170, 3771212; 477109, 3771212; 477014,
3771164; 476912, 3771110; 476789, 3771082; 476655, 3771044; 476503,
3771129; 476408, 3771152; 476379, 3771088; 476274, 3771072; 476112,
3770910; 476046, 3770830; 476048, 3770944; 476057, 3771018; 476062,
3771129; 476062, 3771256; 476067, 3771377; 476132, 3771405; 476215,
3771428; 476304, 3771450; 476275, 3771579; 476785, 3771680; 476789,
3771888; 477033, 3771888; 476982, 3771704; 477522, 3771701; 477528,
3771863; 477662, 3771955; 477697, 3771993; 478227, 3772282; 478211,
3772352; 478240, 3772399; 478249, 3772400; 478370, 3772405; 478373,
3772405; 478454, 3772394; 479016, 3772392; 479139, 3772392; 479139,
3772634; 479544, 3772790; 479599, 3772812; 479942, 3772945; thence
returning to 479941, 3773070; excluding lands bounded by 487253,
3772752; 487254, 3772752; 487290, 3772752; 487290, 3772752; 487290,
3772752; 487589, 3772747; 487589, 3772747; 487778, 3772648; 487787,
3772643; 487790, 3772642; 487808, 3772632; 487808, 3772632; 487808,
3772632; 487808, 3772632; 487838, 3772617; 487842, 3772614; 487978,
3772543; 487996, 3772533; 488008, 3772533; 488010, 3772533; 488122,
3772533; 488122, 3772533; 488230, 3772532; 488230, 3772532; 488351,
3772531; 488390, 3772530; 488404, 3772530; 488405, 3772530; 488471,
3772529; 488608, 3772528; 488608, 3772528; 488812, 3772526; 488812,
3772526; 488812, 3772447; 488811, 3772326; 488811, 3772326; 488803,
3772326; 488614, 3772329; 488614, 3772329; 488614, 3772329; 488614,
3772329; 488607, 3772329; 488409, 3772332; 488403, 3772332; 488403,
3772332; 488144, 3772336; 488139, 3772336; 488140, 3772340; 488139,
3772336; 488139, 3772336; 487995, 3772338; 487995, 3772338; 487849,
3772340; 487849, 3772340; 487828, 3772341; 487806, 3772341; 487790,
3772341; 487775, 3772341; 487768, 3772342; 487763, 3772342; 487758,
3772342; 487726, 3772342; 487674, 3772343; 487586, 3772344; 487310,
3772348; 487309, 3772348; 487303, 3772349; 487303, 3772349; 487302,
3772349; 487233, 3772350; 487232, 3772350; 487229, 3772350; 487229,
3772350; 487227, 3772350; 487226, 3772350; 487223, 3772350; 487214,
3772350; 487213, 3772350; 487178, 3772350; 487178, 3772350; 487177,
3772350; 487173, 3772350; 487167, 3772350; 487117, 3772350; 487117,
3772350; 487118, 3772293; 487118, 3772179; 487119, 3772154; 487032,
3772153; 486981, 3772152; 486935, 3772151; 486896, 3772151; 486587,
3772146; 486580, 3772146; 486556, 3772146; 486534, 3772145; 486434,
3772144; 486380, 3772143; 486380, 3772143; 485983, 3772032; 485982,
3772032; 485983, 3771987; 485983, 3771961; 485983, 3771945; 485983,
3771941; 485983, 3771941; 485653, 3771939; 485651, 3771939; 485650,
3771939; 485594, 3771939; 485585, 3771939; 485586, 3771875; 485595,
3771841; 485595, 3771840; 485595, 3771822; 485595, 3771821; 485595,
3771821; 485577, 3771821; 485334, 3771821; 485184, 3771821; 485184,
3771821; 484918, 3771821; 484852, 3771821; 484782, 3771821; 484782,
3771821; 484693, 3771820; 484693, 3771820; 484482, 3771819; 484482,
3771819; 484383, 3771819; 484381, 3771819; 484381, 3771824; 484381,
3771875; 484381, 3771879; 484381, 3771881; 484381, 3771882; 484381,
3771943; 484381, 3771943; 484381, 3771996; 484445, 3771996; 484782,
3771994; 484782, 3771992; 484782, 3771945; 484782, 3771941; 484909,
3771941; 485184, 3771940; 485184, 3771944; 485184, 3771948; 485183,
3771998; 485182, 3772335; 485573, 3772333; 485582, 3772333; 485582,
3772333; 485981, 3772338; 485981, 3772338; 485980, 3772361; 485976,
3772665; 485975, 3772732; 485975, 3772734; 486377, 3772741; 486380,
3772362; 486380, 3772342; 486463, 3772343; 486779, 3772346; 486778,
3772618; 486778, 3772747; 486778, 3772747; 486887, 3772749; 486908,
3772749; 486925, 3772750; 487178, 3772754; 487178, 3772754; 487184,
3772754; 487184, 3772754; 487202, 3772753; 487205, 3772753; 487209,
3772753; 487213, 3772753; thence returning to 487253, 3772752;
excluding lands bounded by 482603, 3772347; 482603, 3772347; 482602,
3772348; 483160, 3772346; 483160, 3772089; 483160, 3772072; 483160,
3771972; 483160, 3771893; 483159, 3771893; 483159, 3771893; 483071,
3771893; 483032, 3771892; 483032, 3771892; 483032, 3771892; 482989,
3771930; 482972, 3771945; 482972, 3771945; 482644, 3772097; 482622,
3772108; 482537, 3772147; 482377, 3772221; 482368, 3772227; 482368,
3772227; 482368, 3772227; 482368, 3772263; 482367, 3772336; 482367,
3772348; 482367, 3772348; 482376, 3772348; 482385, 3772348; 482394,
3772348; thence returning to 482603, 3772347; and excluding lands
bounded by 483188, 3772080; 483211, 3772076; 483211, 3772346; 483211,
3772346; 483374, 3772346; 483600, 3772345; 483969, 3772344; 483970,
3772008; 483970, 3771985; 483971, 3771945; 483971, 3771945; 483914,
3771945; 483913, 3771945; 483902, 3771945; 483848, 3771945; 483409,
3771944; 483272, 3771944; 483215, 3771944; 483210, 3771944; 483210,
3771944; 483210, 3771944; 483210, 3771944; 483200, 3771933; 483200,
3771933; 483200, 3771933; 483187, 3771946; 483185, 3771948; thence
returning to 483188, 3772080.
(ii) Note: Map of Unit 1--Santa Ana River Wash follows:
BILLING CODE 4310-55-P
[[Page 61991]]
[GRAPHIC] [TIFF OMITTED] TR17OC08.001
BILLING CODE 4310-55-C
(7) Unit 2: Lytle/Cajon Creek Wash, San Bernardino County,
California. From USGS 1:24,000 quadrangles San
[[Page 61992]]
Bernardino South, Redlands, Yucaipa, and Harrison Mountain.
(i) Land bounded by the following Universal Transverse Mercator
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 459952,
3788034; 460404, 3788506; 460540, 3788401; 460651, 3788312; 460753,
3788234; 460844, 3788166; 461055, 3788012; 461159, 3787940; 461251,
3787876; 461287, 3787860; 461340, 3787819; 461597, 3787644; 461773,
3787530; 461793, 3787541; 461822, 3787541; 461919, 3787456; 462141,
3787271; 462332, 3787119; 462452, 3787052; 462562, 3786978; 462505,
3786840; 462634, 3786755; 462747, 3786722; 462898, 3786698; 462948,
3786656; 463021, 3786224; 462998, 3786186; 463006, 3786144; 462925,
3785866; 463882, 3784809; 464062, 3784361; 464695, 3782785; 465055,
3783227; 465304, 3783532; 465304, 3783532; 465302, 3783530; 465302,
3783530; 465433, 3783427; 465429, 3783386; 465403, 3783271; 465424,
3783199; 465392, 3783068; 465424, 3782988; 465432, 3782982; 465431,
3782981; 465596, 3782632; 465041, 3782194; 464977, 3782143; 464956,
3782135; 464966, 3782109; 464966, 3782015; 464970, 3782018; 464983,
3782026; 464995, 3782034; 465009, 3782041; 465022, 3782049; 465035,
3782056; 465049, 3782063; 465062, 3782070; 465076, 3782077; 465089,
3782083; 465103, 3782089; 465117, 3782095; 465131, 3782101; 465145,
3782106; 465146, 3782107; 466006, 3782434; 465987, 3782362; 465982,
3782341; 465477, 3782150; 465173, 3782034; 465170, 3782033; 465156,
3782027; 465143, 3782022; 465129, 3782016; 465116, 3782010; 465103,
3782003; 465090, 3781997; 465077, 3781990; 465064, 3781983; 465051,
3781976; 465039, 3781969; 465026, 3781961; 465014, 3781954; 465002,
3781946; 464990, 3781938; 464978, 3781929; 464966, 3781921; 464966,
3781920; 464964, 3781574; 465590, 3781569; 465860, 3781567; 466040,
3781032; 466159, 3780676; 466190, 3780676; 466195, 3780697; 466230,
3780685; 466288, 3780630; 466333, 3780568; 466385, 3780353; 466406,
3780260; 466420, 3780264; 466419, 3780263; 466500, 3779886; 466599,
3779588; 466653, 3779578; 466710, 3779490; 466802, 3779432; 466802,
3779321; 466837, 3779312; 466834, 3779254; 466897, 3779236; 466907,
3779188; 467059, 3779188; 467069, 3778934; 467307, 3778921; 467516,
3778692; 467672, 3778689; 467678, 3778535; 467980, 3778222; 468094,
3778178; 468101, 3777708; 468260, 3777309; 468175, 3777309; 468185,
3777328; 468198, 3777328; 468188, 3777341; 468177, 3777339; 468176,
3777342; 468174, 3777352; 468171, 3777361; 468168, 3777371; 468164,
3777380; 468161, 3777389; 468157, 3777398; 468153, 3777407; 468149,
3777416; 468144, 3777425; 468139, 3777434; 468134, 3777443; 468129,
3777451; 468127, 3777454; 468130, 3777456; 468053, 3777552; 468057,
3777555; 467726, 3777938; 467602, 3777855; 467580, 3777877; 467649,
3777923; 467369, 3778171; 467145, 3778607; 466888, 3778905; 466853,
3778946; 466849, 3778952; 466840, 3778963; 466831, 3778975; 466822,
3778987; 466813, 3778999; 466805, 3779011; 466797, 3779024; 466789,
3779036; 466781, 3779049; 466773, 3779062; 466766, 3779075; 466759,
3779088; 466752, 3779101; 466745, 3779114; 466739, 3779127; 466733,
3779141; 466726, 3779154; 466725, 3779158; 466709, 3779198; 466699,
3779194; 466664, 3779281; 466664, 3779281; 466541, 3779591; 466540,
3779595; 466537, 3779601; 466535, 3779608; 466534, 3779612; 466505,
3779724; 466503, 3779726; 466496, 3779734; 465927, 3780307; 465267,
3780970; 464964, 3781484; 464961, 3780501; 464659, 3780502; 466387,
3778762; 466387, 3778762; 467801, 3777337; 467848, 3777336; 467863,
3777311; 467598, 3777313; 466491, 3778019; 466490, 3778023; 466460,
3778088; 466416, 3778228; 466405, 3778273; 466367, 3778416; 466354,
3778439; 466254, 3778578; 466186, 3778645; 466107, 3778696; 465939,
3778774; 465572, 3778936; 464859, 3779220; 464742, 3779254; 464602,
3779284; 464484, 3779331; 464391, 3779358; 464292, 3779409; 464212,
3779448; 464136, 3779482; 464060, 3779539; 464011, 3779580; 463936,
3779606; 463869, 3779643; 463847, 3779711; 463798, 3779747; 463708,
3779880; 463765, 3780088; 463688, 3780095; 463722, 3780180; 463627,
3780243; 463400, 3780341; 463276, 3780386; 463334, 3780528; 463297,
3780571; 463231, 3780563; 463014, 3780758; 462904, 3780750; 462716,
3780655; 462565, 3780682; 462446, 3780764; 462442, 3780843; 462293,
3780958; 462150, 3781059; 461632, 3781113; 461398, 3781138; 461295,
3781153; 461250, 3781168; 461189, 3781198; 461131, 3781238; 461089,
3781274; 461058, 3781268; 461040, 3781256; 460986, 3781207; 460722,
3781407; 460204, 3781785; 459809, 3782090; 459809, 3782183; 459796,
3782276; 459794, 3782282; 459866, 3782398; 459941, 3782522; 460082,
3782680; 460409, 3783008; 460480, 3782941; 460484, 3782940; 460684,
3782814; 460916, 3782671; 460933, 3782660; 460987, 3782627; 461028,
3782600; 461065, 3782580; 461109, 3782556; 461150, 3782537; 461192,
3782524; 461236, 3782518; 461272, 3782514; 461318, 3782505; 461356,
3782492; 461391, 3782476; 461420, 3782458; 461468, 3782428; 461531,
3782389; 461570, 3782364; 461594, 3782352; 461614, 3782343; 461644,
3782334; 461679, 3782330; 461721, 3782318; 461752, 3782304; 461784,
3782284; 461811, 3782266; 461828, 3782249; 461845, 3782230; 461863,
3782206; 461882, 3782180; 461904, 3782158; 461930, 3782137; 461958,
3782120; 462049, 3782063; 462413, 3781835; 462873, 3781547; 463898,
3780891; 463997, 3781084; 463824, 3781308; 463789, 3781551; 463848,
3781606; 463849, 3781605; 463851, 3781606; 463943, 3781748; 463957,
3781677; 463948, 3781588; 464043, 3781499; 464081, 3781502; 464103,
3781534; 464065, 3781588; 464113, 3781598; 464160, 3781636; 464227,
3781575; 464243, 3781537; 464173, 3781474; 464259, 3781356; 464313,
3781404; 464376, 3781353; 464440, 3781470; 464522, 3781591; 464494,
3781960; 464867, 3782098; 464948, 3782128; 464938, 3782153; 464827,
3782448; 464659, 3782622; 464624, 3782717; 464626, 3782720; 464556,
3782900; 464540, 3782945; 464517, 3783006; 464558, 3783074; 464372,
3783524; 464208, 3783799; 464180, 3783870; 464157, 3783972; 464167,
3784064; 464135, 3784163; 464094, 3784264; 463986, 3784414; 463922,
3784560; 463905, 3784580; 463905, 3784580; 463783, 3784722; 463721,
3784874; 463636, 3784970; 463519, 3785042; 463225, 3785145; 463249,
3785208; 462925, 3785424; 462767, 3785557; 462611, 3785655; 462526,
3785643; 462109, 3786075; 462184, 3786450; 462194, 3786484; 462049,
3786522; 461909, 3786595; 461686, 3786755; 461357, 3787001; 460956,
3787294; 460860, 3787365; 460698, 3787481; 460543, 3787598; 460324,
3787760; 460020, 3787985; thence returning to 459952, 3788034; and land
bounded by 465902, 3781761; 465967, 3781566; 466006, 3781566; 466035,
3781479; 466349, 3781286; 466346, 3781275; 465922, 3781528; 465922,
3781567; 465860, 3781567; 465893, 3781759; 465893, 3781758; 465894,
3781764; thence returning to 465902, 3781761.
(ii) Note: Map of Unit 2--Lytle/Cajon Creek Wash follows:
BILLING CODE 4310-55-P
[[Page 61993]]
[GRAPHIC] [TIFF OMITTED] TR17OC08.002
BILLING CODE 4310-55-C
(8) Unit 3: San Jacinto River Wash, Riverside County, California.
From USGS 1:24,000 quadrangles San Jacinto, Lake Fulmor, and Blackburn
Canyon.
[[Page 61994]]
(i) Land bounded by the following Universal Transverse Mercator
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 506626,
3737807; 506919, 3737520; 507441, 3737006; 507652, 3736797; 507652,
3736797; 507542, 3736682; 507439, 3736575; 507466, 3736575; 507466,
3736575; 507680, 3736576; 507877, 3736577; 507877, 3736577; 507915,
3736540; 507921, 3736534; 507968, 3736488; 507969, 3736487; 508139,
3736320; 508225, 3736236; 508250, 3736211; 508250, 3736211; 508250,
3736209; 508250, 3736111; 507865, 3736109; 507865, 3736126; 507865,
3736134; 507865, 3736136; 507865, 3736146; 507811, 3736147; 507730,
3736182; 507692, 3736202; 507730, 3736216; 507465, 3736422; 507445,
3736438; 507374, 3736495; 507358, 3736507; 507332, 3736481; 507328,
3736485; 507358, 3736514; 507352, 3736535; 507344, 3736558; 507321,
3736626; 507306, 3736656; 507275, 3736689; 507231, 3736733; 507185,
3736796; 507165, 3736822; 507165, 3736822; 507162, 3737005; 507161,
3737049; 506929, 3737280; 506688, 3737512; 506696, 3737306; 506633,
3737363; 506633, 3737362; 506550, 3737440; 506367, 3737614; 506367,
3737614; 506363, 3737620; 506354, 3737633; 506349, 3737640; 506346,
3737645; 506337, 3737658; 506329, 3737671; 506328, 3737671; 506320,
3737684; 506318, 3737688; 506314, 3737694; 506307, 3737704; 506306,
3737706; 506300, 3737714; 506296, 3737720; 506294, 3737724; 506287,
3737734; 506287, 3737734; 506280, 3737744; 506275, 3737752; 506273,
3737755; 506270, 3737760; 506267, 3737765; 506265, 3737767; 506260,
3737775; 506253, 3737785; 506250, 3737790; 506246, 3737795; 506244,
3737799; 506240, 3737805; 506239, 3737807; 506238, 3737808; 506238,
3737808; 506234, 3737814; 506233, 3737816; 506231, 3737818; 506226,
3737826; 506222, 3737831; 506220, 3737836; 506213, 3737846; 506213,
3737846; 506213, 3737846; 506030, 3738122; 506001, 3738167; 505972,
3738212; 505915, 3738309; 505915, 3738309; 505916, 3738309; 506026,
3738385; 506037, 3738392; 506037, 3738392; 506134, 3738296; thence
returning to 506626, 3737807; land bounded by 506699, 3737003; 506719,
3737003; 506763, 3737003; 506772, 3737003; 506852, 3736917; 506882,
3736906; 506882, 3736905; 506883, 3736905; 506883, 3736904; 506883,
3736904; 506884, 3736903; 506884, 3736903; 506885, 3736903; 506885,
3736902; 506885, 3736902; 506886, 3736901; 506886, 3736901; 506886,
3736900; 506887, 3736900; 506887, 3736899; 506888, 3736899; 506888,
3736898; 506888, 3736898; 506889, 3736897; 506889, 3736897; 506889,
3736896; 506890, 3736896; 506890, 3736895; 506891, 3736895; 506891,
3736894; 506891, 3736894; 506892, 3736893; 506892, 3736893; 506892,
3736892; 506893, 3736892; 506893, 3736891; 506893, 3736891; 506894,
3736890; 506894, 3736890; 506894, 3736889; 506895, 3736889; 506895,
3736888; 506895, 3736888; 506896, 3736887; 506896, 3736887; 506896,
3736886; 506897, 3736886; 506897, 3736885; 506897, 3736885; 506898,
3736884; 506898, 3736884; 506898, 3736883; 506899, 3736883; 506899,
3736882; 506899, 3736882; 506900, 3736881; 506900, 3736881; 506900,
3736880; 506901, 3736880; 506901, 3736879; 506901, 3736879; 506902,
3736878; 506902, 3736877; 506902, 3736877; 506902, 3736876; 506903,
3736876; 506903, 3736875; 506903, 3736875; 506904, 3736874; 506904,
3736874; 506904, 3736873; 506904, 3736873; 506905, 3736872; 506905,
3736872; 506905, 3736871; 506906, 3736871; 506906, 3736870; 506906,
3736869; 506906, 3736869; 506907, 3736868; 506907, 3736868; 506907,
3736867; 506908, 3736867; 506908, 3736866; 506908, 3736866; 506908,
3736865; 506909, 3736865; 506909, 3736864; 506909, 3736863; 506909,
3736863; 506910, 3736862; 506910, 3736862; 506910, 3736861; 506910,
3736861; 506911, 3736860; 506911, 3736859; 506911, 3736859; 506911,
3736858; 506911, 3736858; 506912, 3736857; 506912, 3736857; 506912,
3736856; 506912, 3736856; 506913, 3736855; 506913, 3736854; 506913,
3736854; 506913, 3736853; 506914, 3736853; 506914, 3736852; 506914,
3736852; 506914, 3736851; 506914, 3736850; 506915, 3736850; 506915,
3736849; 506915, 3736849; 506915, 3736848; 506915, 3736848; 506916,
3736847; 506916, 3736846; 506916, 3736846; 506916, 3736845; 506916,
3736845; 506917, 3736844; 506917, 3736844; 506917, 3736843; 506917,
3736842; 506917, 3736842; 506917, 3736841; 506918, 3736841; 506918,
3736840; 506918, 3736839; 506918, 3736839; 506918, 3736838; 506918,
3736838; 506919, 3736837; 506919, 3736837; 506919, 3736836; 506919,
3736835; 506919, 3736835; 506919, 3736834; 506920, 3736834; 506920,
3736833; 506920, 3736832; 506920, 3736832; 506920, 3736831; 506920,
3736831; 506920, 3736830; 506921, 3736829; 506921, 3736829; 506921,
3736828; 506921, 3736828; 506921, 3736827; 506921, 3736826; 506921,
3736826; 506921, 3736825; 506922, 3736825; 506922, 3736824; 506922,
3736823; 506922, 3736823; 506922, 3736822; 506922, 3736822; 506922,
3736821; 506922, 3736820; 506923, 3736820; 506923, 3736819; 506923,
3736819; 506923, 3736818; 506923, 3736817; 506923, 3736817; 506923,
3736816; 506923, 3736816; 506923, 3736815; 506923, 3736814; 506923,
3736814; 506924, 3736813; 506924, 3736813; 506924, 3736812; 506924,
3736811; 506924, 3736811; 506924, 3736810; 506924, 3736810; 506924,
3736809; 506924, 3736808; 506924, 3736808; 506924, 3736807; 506924,
3736807; 506924, 3736806; 506924, 3736805; 506924, 3736805; 506924,
3736804; 506925, 3736804; 506925, 3736803; 506925, 3736802; 506925,
3736802; 506925, 3736801; 506925, 3736800; 506925, 3736800; 506925,
3736799; 506925, 3736799; 506925, 3736798; 506925, 3736797; 506925,
3736797; 506925, 3736796; 506925, 3736796; 506925, 3736795; 506925,
3736794; 506925, 3736794; 506925, 3736793; 506925, 3736793; 506925,
3736792; 506925, 3736791; 506925, 3736791; 506925, 3736790; 506925,
3736790; 506925, 3736789; 506925, 3736788; 506925, 3736788; 506925,
3736787; 506925, 3736786; 506925, 3736786; 506925, 3736785; 506925,
3736785; 506925, 3736784; 506925, 3736783; 506925, 3736783; 506925,
3736782; 506925, 3736782; 506925, 3736781; 506925, 3736780; 506925,
3736780; 506925, 3736779; 506925, 3736779; 506925, 3736778; 506925,
3736777; 506925, 3736777; 506925, 3736776; 506924, 3736776; 506924,
3736775; 506924, 3736774; 506924, 3736774; 506924, 3736773; 506924,
3736772; 506924, 3736772; 506924, 3736771; 506924, 3736771; 506924,
3736770; 506924, 3736769; 506924, 3736769; 506924, 3736768; 506924,
3736768; 506924, 3736767; 506923, 3736766; 506923, 3736766; 506923,
3736765; 506923, 3736765; 506923, 3736764; 506923, 3736763; 506923,
3736763; 506923, 3736762; 506923, 3736762; 506923, 3736761; 506923,
3736760; 506922, 3736760; 506922, 3736759; 506922, 3736759; 506898,
3736782; 506816, 3736861; 506816, 3736862; 506815, 3736862; 506815,
3736862; 506814, 3736863; 506814, 3736863; 506814, 3736864; 506813,
3736864; 506813, 3736865; 506812, 3736865; 506812, 3736865; 506811,
3736866; 506811, 3736866; 506810, 3736867; 506810, 3736867; 506810,
3736867; 506809, 3736868; 506809, 3736868; 506808, 3736869; 506808,
3736869; 506807, 3736870; 506807, 3736870; 506807, 3736870; 506806,
[[Page 61995]]
3736871; 506806, 3736871; 506805, 3736872; 506805, 3736872; 506804,
3736872; 506804, 3736873; 506804, 3736873; 506803, 3736873; 506803,
3736874; 506803, 3736874; 506802, 3736875; 506802, 3736875; 506801,
3736875; 506801, 3736876; 506800, 3736876; 506800, 3736877; 506799,
3736877; 506799, 3736878; 506799, 3736878; 506798, 3736878; 506798,
3736879; 506797, 3736879; 506797, 3736880; 506796, 3736880; 506796,
3736881; 506796, 3736881; 506795, 3736881; 506795, 3736882; 506794,
3736882; 506794, 3736883; 506793, 3736883; 506793, 3736884; 506793,
3736884; 506792, 3736884; 506792, 3736885; 506791, 3736885; 506791,
3736886; 506790, 3736886; 506790, 3736887; 506789, 3736887; 506789,
3736887; 506789, 3736888; 506788, 3736888; 506788, 3736889; 506787,
3736889; 506787, 3736890; 506786, 3736890; 506786, 3736890; 506786,
3736891; 506785, 3736891; 506785, 3736892; 506784, 3736892; 506784,
3736893; 506783, 3736893; 506783, 3736893; 506783, 3736894; 506782,
3736894; 506782, 3736895; 506781, 3736895; 506781, 3736896; 506780,
3736896; 506780, 3736896; 506780, 3736897; 506779, 3736897; 506779,
3736898; 506778, 3736898; 506778, 3736899; 506777, 3736899; 506777,
3736899; 506777, 3736900; 506776, 3736900; 506776, 3736901; 506775,
3736901; 506775, 3736902; 506774, 3736902; 506774, 3736903; 506774,
3736903; 506773, 3736903; 506773, 3736904; 506772, 3736904; 506772,
3736905; 506771, 3736905; 506771, 3736906; 506771, 3736906; 506770,
3736906; 506770, 3736907; 506769, 3736907; 506769, 3736908; 506769,
3736908; 506768, 3736909; 506768, 3736909; 506767, 3736910; 506767,
3736910; 506766, 3736910; 506766, 3736911; 506766, 3736911; 506765,
3736912; 506765, 3736912; 506764, 3736913; 506764, 3736913; 506763,
3736914; 506673, 3737003; 506686, 3737003; thence returning to 506699,
3737003; and land bounded by 506793, 3736955; 506771, 3736932; 506826,
3736879; 506834, 3736888; 506858, 3736912; 506803, 3736965; thence
returning to 506793, 3736955; excluding lands bounded by 506793,
3736955; 506803, 3736965; 506858, 3736912; 506834, 3736888; 506826,
3736879; 506771, 3736932; thence returning to 506793, 3736955. Lands
bounded by 507455, 3736348; 507444, 3736337; 507425, 3736316; 507444,
3736297; 507457, 3736284; 507464, 3736291; 507488, 3736316; 507489,
3736314; 507502, 3736303; 507515, 3736291; 507528, 3736280; 507542,
3736269; 507556, 3736258; 507570, 3736248; 507575, 3736244; 507538,
3736205; 507573, 3736173; 507557, 3736165; 507464, 3736251; 507444,
3736269; 507291, 3736411; 507290, 3736410; 507275, 3736424; 506946,
3736737; 506946, 3736737; 506946, 3736738; 506946, 3736738; 506946,
3736739; 506946, 3736740; 506947, 3736740; 506947, 3736741; 506947,
3736741; 506947, 3736742; 506947, 3736743; 506947, 3736743; 506947,
3736744; 506948, 3736744; 506948, 3736745; 506948, 3736746; 506948,
3736746; 506948, 3736747; 506948, 3736747; 506948, 3736748; 506949,
3736749; 506949, 3736749; 506949, 3736750; 506949, 3736750; 506949,
3736751; 506949, 3736751; 506949, 3736752; 506949, 3736753; 506949,
3736753; 506950, 3736754; 506950, 3736754; 506950, 3736755; 506950,
3736756; 506950, 3736756; 506950, 3736757; 506950, 3736757; 506950,
3736758; 506950, 3736759; 506950, 3736759; 506951, 3736760; 506951,
3736761; 506951, 3736761; 506951, 3736762; 506951, 3736762; 506951,
3736763; 506951, 3736764; 506951, 3736764; 506951, 3736765; 506951,
3736765; 506951, 3736766; 506951, 3736767; 506951, 3736767; 506952,
3736768; 506952, 3736768; 506952, 3736769; 506952, 3736770; 506952,
3736770; 506952, 3736771; 506952, 3736771; 506952, 3736772; 506952,
3736773; 506952, 3736773; 506952, 3736774; 506952, 3736774; 506952,
3736775; 506952, 3736776; 506952, 3736776; 506952, 3736777; 506952,
3736777; 506952, 3736778; 506952, 3736779; 506952, 3736779; 506952,
3736780; 506952, 3736781; 506953, 3736781; 506953, 3736782; 506953,
3736782; 506953, 3736783; 506953, 3736784; 506953, 3736784; 506953,
3736785; 506953, 3736785; 506953, 3736786; 506953, 3736787; 506953,
3736787; 506953, 3736788; 506953, 3736788; 506953, 3736789; 506953,
3736790; 506953, 3736790; 506953, 3736791; 506953, 3736791; 506953,
3736792; 506953, 3736793; 506953, 3736793; 506953, 3736794; 506953,
3736795; 506953, 3736795; 506953, 3736796; 506953, 3736796; 506953,
3736797; 506953, 3736798; 506953, 3736798; 506952, 3736799; 506952,
3736799; 506952, 3736800; 506952, 3736801; 506952, 3736801; 506952,
3736802; 506952, 3736802; 506952, 3736803; 506952, 3736804; 506952,
3736804; 506952, 3736805; 506952, 3736805; 506952, 3736806; 506952,
3736807; 506952, 3736807; 506952, 3736808; 506952, 3736809; 506952,
3736809; 506952, 3736810; 506952, 3736810; 506952, 3736811; 506952,
3736812; 506951, 3736812; 506951, 3736813; 506951, 3736813; 506951,
3736814; 506951, 3736815; 506951, 3736815; 506951, 3736816; 506951,
3736816; 506951, 3736817; 506951, 3736818; 506951, 3736818; 506951,
3736819; 506951, 3736819; 506950, 3736820; 506950, 3736821; 506950,
3736821; 506950, 3736822; 506950, 3736822; 506950, 3736823; 506950,
3736824; 506950, 3736824; 506950, 3736825; 506950, 3736825; 506949,
3736826; 506949, 3736827; 506949, 3736827; 506949, 3736828; 506949,
3736828; 506949, 3736829; 506949, 3736830; 506949, 3736830; 506949,
3736831; 506948, 3736831; 506948, 3736832; 506948, 3736833; 506948,
3736833; 506948, 3736834; 506948, 3736834; 506948, 3736835; 506948,
3736836; 506947, 3736836; 506947, 3736837; 506947, 3736837; 506947,
3736838; 506947, 3736839; 506947, 3736839; 506947, 3736840; 506946,
3736840; 506946, 3736841; 506946, 3736842; 506946, 3736842; 506946,
3736843; 506946, 3736843; 506945, 3736844; 506945, 3736844; 506945,
3736845; 506945, 3736846; 506945, 3736846; 506945, 3736847; 506944,
3736847; 506944, 3736848; 506944, 3736849; 506944, 3736849; 506944,
3736850; 506944, 3736850; 506943, 3736851; 506943, 3736851; 506943,
3736852; 506943, 3736853; 506943, 3736853; 506942, 3736854; 506942,
3736854; 506942, 3736855; 506942, 3736856; 506942, 3736856; 506942,
3736857; 506941, 3736857; 506941, 3736858; 506941, 3736858; 506941,
3736859; 506940, 3736860; 506940, 3736860; 506940, 3736861; 506940,
3736861; 506940, 3736862; 506939, 3736862; 506939, 3736863; 506939,
3736864; 506939, 3736864; 506939, 3736865; 506938, 3736865; 506938,
3736866; 506938, 3736866; 506938, 3736867; 506937, 3736868; 506937,
3736868; 506937, 3736869; 506937, 3736869; 506937, 3736870; 506936,
3736870; 506936, 3736871; 506936, 3736871; 506936, 3736872; 506935,
3736873; 506935, 3736873; 506935, 3736874; 506935, 3736874; 506937,
3736877; 507330, 3736478; 507328, 3736476; 507335, 3736469; 507342,
3736462; 507361, 3736443; 507445, 3736359; 507455, 3736349; thence
returning to 507455, 3736348; land bounded by 507212, 3736516; 507260,
3736471; 507295, 3736509; 507248, 3736554; thence returning to 507212,
3736516; land bounded by 506995, 3736726; 507050, 3736673; 507090,
3736715; 507035, 3736768; thence returning to 506995, 3736726.
Excluding lands bounded by 506995, 3736726; 507035, 3736768;
507090,
[[Page 61996]]
3736715; 507050, 3736673; thence returning to 506995, 3736726; and
excluding lands bounded by 507212, 3736516; 507248, 3736554; 507295,
3736509; 507260, 3736471; thence returning to 507212, 3736516.
Continuing to lands bounded by 508362, 3736111; 508440, 3736111;
508760, 3736112; 508881, 3736112; 508941, 3736112; 509080, 3736113;
509081, 3736113; 509575, 3736114; 509871, 3736115; 509871, 3736115;
509944, 3736115; 510063, 3736116; 510273, 3735945; 510317, 3735910;
510333, 3735897; 510422, 3735825; 510289, 3735824; 510221, 3735824;
510213, 3735824; 510211, 3735824; 510086, 3735829; 510086, 3735829;
509900, 3735836; 509900, 3735836; 509892, 3735836; 509892, 3735820;
509873, 3735819; 509873, 3735798; 509870, 3735798; 509870, 3735804;
509870, 3735814; 509870, 3735814; 509284, 3735812; 509269, 3735812;
509247, 3735812; 509244, 3735836; 509168, 3735867; 509168, 3735868;
509096, 3735896; 509101, 3735942; 509091, 3735948; 509091, 3735948;
509073, 3735958; 509073, 3735963; 509073, 3735963; 509069, 3735963;
509063, 3735963; 509063, 3735963; 508979, 3735964; 508979, 3735962;
508979, 3735962; 508979, 3735962; 508947, 3735962; 508881, 3735962;
508791, 3735962; 508761, 3735961; 508761, 3735954; 508761, 3735954;
508761, 3735954; 508746, 3735954; 508746, 3735903; 508577, 3735903;
508577, 3735900; 508574, 3735900; 508550, 3735900; 508519, 3735960;
508519, 3735960; 508364, 3735959; thence returning to 508362, 3736111;
land bounded by 510650, 3735641; 510696, 3735603; 510799, 3735520;
510915, 3735426; 510926, 3735417; 510928, 3735416; 510993, 3735363;
511422, 3735015; 511452, 3734991; 511473, 3734974; 511509, 3734945;
511892, 3734636; 511916, 3734616; 511922, 3734611; 511953, 3734586;
512009, 3734541; 512135, 3734542; 512485, 3734544; 512498, 3734541;
512603, 3734481; 512703, 3734455; 512703, 3734455; 513047, 3734367;
513047, 3734367; 513047, 3734336; 513047, 3734147; 513043, 3734147;
512708, 3734144; 512708, 3734144; 512710, 3734050; 512711, 3733985;
512693, 3733986; 512682, 3733994; 512682, 3733994; 512635, 3733975;
512607, 3733964; 512607, 3733964; 512565, 3733952; 512514, 3733929;
512326, 3734025; 512316, 3734058; 512316, 3734059; 512314, 3734065;
512275, 3734095; 512269, 3734105; 512246, 3734119; 512238, 3734124;
512137, 3734202; 512115, 3734220; 512093, 3734238; 512080, 3734248;
512050, 3734273; 512048, 3734274; 512046, 3734276; 512033, 3734285;
512016, 3734298; 511976, 3734328; 511909, 3734343; 511891, 3734346;
511874, 3734350; 511866, 3734356; 511857, 3734362; 511811, 3734398;
511802, 3734405; 511757, 3734444; 511729, 3734457; 511727, 3734458;
511710, 3734461; 511710, 3734461; 511627, 3734472; 511617, 3734476;
511607, 3734479; 511589, 3734485; 511579, 3734488; 511527, 3734534;
511518, 3734543; 511509, 3734552; 511509, 3734614; 511509, 3734614;
511510, 3734614; 511563, 3734668; 511618, 3734736; 511594, 3734736;
511607, 3734753; 511610, 3734768; 511539, 3734839; 511458, 3734884;
511369, 3734910; 511196, 3735014; 511196, 3735014; 511178, 3735025;
510900, 3735258; 510900, 3735258; 510713, 3735415; 510713, 3735415;
510696, 3735429; 510696, 3735429; 510670, 3735451; 510660, 3735470;
510638, 3735603; 510638, 3735603; 510645, 3735624; 510649, 3735639;
510650, 3735640; 510650, 3735640; thence returning to 510650, 3735641;
and land bounded by 512090, 3734474; 512090, 3734474; 512093, 3734472;
512104, 3734464; 512113, 3734456; 512130, 3734464; 512130, 3734464;
512118, 3734488; 512104, 3734481; thence returning to 512090, 3734474;
excluding lands bounded by 512090, 3734474; 512104, 3734481; 512118,
3734488; 512130, 3734464; 512130, 3734464; 512113, 3734456; 512104,
3734464; 512093, 3734472; thence returning to 512090, 3734474.
(ii) Note: Map of Unit 3--San Jacinto River Wash follows:
BILLING CODE 4310-55-P
[[Page 61997]]
[GRAPHIC] [TIFF OMITTED] TR17OC08.003
BILLING CODE 4310-55-C
(9) Unit 4: Cable Creek Wash, San Bernardino County, California.
From USGS 1:24,000 quadrangles San
[[Page 61998]]
Bernardino South, Redlands, Yucaipa, and Harrison Mountain.
(i) Land bounded by the following Universal Transverse Mercator
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 463488,
3787583; 463744, 3787580; 463715, 3787533; 463646, 3787536; 463616,
3787529; 463602, 3787504; 463599, 3787437; 463618, 3787313; 463628,
3787249; 463609, 3787215; 463602, 3787194; 463603, 3787154; 463614,
3787118; 463603, 3787103; 463595, 3787091; 463627, 3787057; 463664,
3787028; 463708, 3786998; 463756, 3786932; 463786, 3786880; 463793,
3786839; 463794, 3786821; 463784, 3786780; 463795, 3786754; 463860,
3786697; 463911, 3786653; 463917, 3786638; 463815, 3786610; 463941,
3786497; 464028, 3786547; 463939, 3786634; 463978, 3786682; 464026,
3786745; 464072, 3786789; 464168, 3786891; 464206, 3786889; 464218,
3786834; 464300, 3786801; 464408, 3786892; 464461, 3787007; 464358,
3787052; 464461, 3787180; 464486, 3787180; 464593, 3787180; 464597,
3787136; 464564, 3787107; 464544, 3787091; 464532, 3787068; 464516,
3787050; 464511, 3787015; 464492, 3786982; 464476, 3786941; 464451,
3786888; 464388, 3786769; 464323, 3786685; 464274, 3786567; 464254,
3786446; 464249, 3786395; 464263, 3786319; 464278, 3786278; 464306,
3786248; 464392, 3786188; 464456, 3786161; 464489, 3786137; 464533,
3786098; 464591, 3786071; 464645, 3786052; 464679, 3786064; 464726,
3786044; 464761, 3786076; 464772, 3786114; 464791, 3786136; 464812,
3786136; 464835, 3786125; 464847, 3786083; 464865, 3786044; 464865,
3785996; 464865, 3785921; 464877, 3785905; 464905, 3785900; 464923,
3785893; 464941, 3785900; 464955, 3785924; 464979, 3785921; 465000,
3785896; 465015, 3785870; 465018, 3785842; 465022, 3785810; 465053,
3785793; 465073, 3785792; 465091, 3785801; 465114, 3785822; 465134,
3785833; 465164, 3785832; 465181, 3785804; 465177, 3785769; 465160,
3785735; 465155, 3785714; 465164, 3785694; 465194, 3785694; 465219,
3785697; 465252, 3785646; 465302, 3785573; 465367, 3785483; 465411,
3785453; 465445, 3785409; 465476, 3785388; 465510, 3785371; 465516,
3785275; 465519, 3785246; 465552, 3785201; 465604, 3785115; 465638,
3785047; 465664, 3784997; 465730, 3784959; 465843, 3784900; 465846,
3784898; 465883, 3784878; 465877, 3784853; 465876, 3784809; 465885,
3784777; 465891, 3784739; 465886, 3784704; 465879, 3784669; 465871,
3784651; 465871, 3784616; 465877, 3784572; 465826, 3784476; 465801,
3784496; 465792, 3784481; 465784, 3784509; 465769, 3784522; 465716,
3784545; 465697, 3784555; 465686, 3784577; 465653, 3784588; 465617,
3784614; 465614, 3784634; 465580, 3784669; 465512, 3784536; 464473,
3785523; 463196, 3786751; 463299, 3787054; 463331, 3787013; 463396,
3786974; 463433, 3786983; 463446, 3787022; 463455, 3787089; 463482,
3787091; 463479, 3787116; 463475, 3787141; 463467, 3787167; 463467,
3787190; 463459, 3787216; 463438, 3787238; 463417, 3787259; 463409,
3787278; 463409, 3787299; 463407, 3787321; 463399, 3787341; 463398,
3787362; 463412, 3787387; 463433, 3787415; 463454, 3787435; 463471,
3787466; 463486, 3787510; 463487, 3787543; thence returning to 463488,
3787583.
(ii) Note: Map of Unit 4--Cable Creek Wash follows:
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[[Page 61999]]
[GRAPHIC] [TIFF OMITTED] TR17OC08.004
BILLING CODE 4310-55-C
[[Page 62000]]
(10) Unit 5: Bautista Creek, Riverside County, California. From
USGS 1:24,000 quadrangle Blackburn Canyon.
(i) Land bounded by the following Universal Transverse Mercator
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 514568,
3727407; 514575, 3727407; 514581, 3727407; 514588, 3727407; 514593,
3727407; 514594, 3727400; 514604, 3727317; 514613, 3727237; 514630,
3727172; 514641, 3727149; 514659, 3727133; 514687, 3727111; 514735,
3727089; 514787, 3727047; 514817, 3727014; 514834, 3726971; 514834,
3726938; 514828, 3726894; 514828, 3726867; 514838, 3726842; 514860,
3726822; 514876, 3726765; 514896, 3726705; 514920, 3726656; 514955,
3726596; 514978, 3726573; 515017, 3726548; 515065, 3726527; 515087,
3726515; 515119, 3726495; 515161, 3726465; 515184, 3726451; 515225,
3726430; 515263, 3726401; 515298, 3726401; 515301, 3726391; 515279,
3726357; 515267, 3726325; 515267, 3726280; 515279, 3726226; 515279,
3726190; 515279, 3726148; 515291, 3726115; 515316, 3726054; 515344,
3726000; 515395, 3725932; 515471, 3725841; 515510, 3725760; 515536,
3725696; 515565, 3725637; 515601, 3725594; 515615, 3725497; 515617,
3725406; 515624, 3725301; 515632, 3725267; 515676, 3725203; 515724,
3725116; 515794, 3724968; 515822, 3724940; 515842, 3724928; 515883,
3724925; 515912, 3724923; 515922, 3724914; 515953, 3724887; 515979,
3724862; 515991, 3724838; 516002, 3724788; 516020, 3724736; 516033,
3724701; 516052, 3724666; 516079, 3724648; 516103, 3724637; 516140,
3724630; 516170, 3724625; 516207, 3724628; 516237, 3724623; 516270,
3724587; 516307, 3724553; 516352, 3724530; 516391, 3724529; 516427,
3724532; 516437, 3724536; 516410, 3724511; 516385, 3724448; 516328,
3724429; 516147, 3724514; 516067, 3724496; 515959, 3724546; 515962,
3724584; 515750, 3724813; 515546, 3725000; 515448, 3725089; 515461,
3725175; 515486, 3725210; 515483, 3725372; 515505, 3725454; 515489,
3725572; 515432, 3725718; 515343, 3725759; 515366, 3725854; 515280,
3725966; 515238, 3726038; 515175, 3726130; 515172, 3726264; 515162,
3726324; 515112, 3726394; 515023, 3726438; 514940, 3726499; 514877,
3726578; 514800, 3726705; 514752, 3726802; 514756, 3726934; 514572,
3727048; 514537, 3727207; 514480, 3727369; 514463, 3727407; 514529,
3727407; thence returning to 514568, 3727407.
(ii) Note: Map of Unit 5--Bautista Creek follows:
[[Page 62001]]
[GRAPHIC] [TIFF OMITTED] TR17OC08.005
[[Page 62002]]
* * * * *
Dated: October 1, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-23515 Filed 10-16-08; 8:45 am]
BILLING CODE 4310-55-C