[Federal Register Volume 78, Number 245 (Friday, December 20, 2013)]
[Rules and Regulations]
[Pages 77289-77325]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30165]
[[Page 77289]]
Vol. 78
Friday,
No. 245
December 20, 2013
Part IV
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 Arctostaphylos franciscana (Franciscan Manzanita); Final
Rule
Federal Register / Vol. 78 , No. 245 / Friday, December 20, 2013 /
Rules and Regulations
[[Page 77290]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2012-0067; 4500030114]
RIN 1018-AY63
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Arctostaphylos franciscana (Franciscan Manzanita)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical
habitat for Arctostaphylos franciscana (Franciscan manzanita) under the
Endangered Species Act. In total, approximately 230.2 acres (93.1
hectares) in San Francisco County, California, fall within the
boundaries of the final critical habitat designation. The effect of
this regulation is to designate critical habitat for A. franciscana
under the Endangered Species Act.
DATES: This rule is effective on January 21, 2014.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Comments and materials received, as well as
supporting documentation used in preparing this final rule, are
available for public inspection, by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and
Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825;
telephone 916-414-6600; facsimile 916-414-6612.
The coordinates or plot points, or both, from which the maps are
generated are included in the record for this critical habitat
designation and are available at http://www.regulations.gov at Docket
No. FWS-R8-ES-2012-0067, and at the Sacramento Fish and Wildlife Office
at http://www.fws.gov/Sacramento (see FOR FURTHER INFORMATION CONTACT).
Any additional tools or supporting information that we developed for
this critical habitat designation will also be available at the Fish
and Wildlife Service Web site and field office set out above, and may
also be included in the preamble or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Karen Leyse, Listing Coordinator, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, W-2605, Sacramento, CA 95825; telephone 916-414-6600;
facsimile 916-414-6612. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This is a final rule to designate
critical habitat for Arctostaphylos franciscana. Under the Endangered
Species Act (Act), any species that is determined to be an endangered
or threatened species requires critical habitat to be designated, to
the maximum extent prudent and determinable. Designations and revisions
of critical habitat can only be completed by issuing a rule.
We listed Arctostaphylos franciscana as an endangered species on
September 5, 2012 (77 FR 54434). On the same date we also proposed
critical habitat for the species (77 FR 54517). We subsequently
received new information on additional areas that contain the physical
and biological features needed by the species, and we revised the
proposed critical habitat on June 28, 2013 (78 FR 38897).
Section 4(b)(2) of the Act states that the Secretary shall
designate 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 can exclude an
area from critical habitat if he determines the benefits of exclusion
outweigh the benefits of designation, unless the exclusion will result
in the extinction of the species. The critical habitat areas we are
designating in this rule constitute our current best assessment of the
areas that meet the definition of critical habitat for Arctostaphylos
franciscana. In total, we are designating approximately 230.2 acres
(ac) (93.1 hectares (ha)), in 12 units in San Francisco County,
California, as critical habitat for the species. A total of 13.9 ac
(5.7 ha) (Unit 5) were occupied by the species at the time of listing;
the remaining designation was not occupied at the time of listing,
although an additional unit, Unit 2 (21.6 ac (8.7 ha)), is now
considered occupied due to the recent reintroduction of A. franciscana
to the unit.
We have prepared an economic analysis of the designation of
critical habitat. In order to consider economic impacts, we have
prepared an analysis of the economic impacts of the critical habitat
designations and related factors. We announced the availability of the
draft economic analysis (DEA) in the Federal Register on June 28, 2013
(78 FR 38897), allowing the public to provide comments on our analysis.
We have reviewed and incorporated the comments into this rule as
necessary and have completed the final economic analysis (FEA)
concurrently with this final determination.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained peer reviews from five
knowledgeable individuals with scientific expertise to review our
technical assumptions and analysis, and to determine whether or not we
had used the best available information. We received responses from all
five of the peer reviewers. These peer reviewers generally concurred
with our methods and conclusions and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated in this final designation.
We also considered all comments and information we received from the
public during the comment period.
Previous Federal Actions
On September 5, 2012, we published in the Federal Register the
final rule to list the species as endangered under the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act) (77 FR
54434). On the same date, we also published the proposed rule to
designate critical habitat for Arctostaphylos franciscana (77 FR 54517;
September 5, 2012). On June 28, 2013, we published a document in the
Federal Register making available the DEA and reopening the comment
period on the proposed critical habitat (78 FR 38897). In addition, we
corrected the acreage calculations for our September 5, 2012, proposal
due to a mapping error, and increased the proposed designation of
critical habitat by approximately 73 ac (30 ha).
Background
It is our intent to discuss below only those topics directly
relevant to designating final critical habitat for Arctostaphylos
franciscana in this rule. For additional background information, please
see the September 8, 2011, combined 12-month finding and proposed
listing rule (76 FR 55623), the September 5, 2012, final listing rule
for the species (77 FR 54434), and the September 5, 2012, proposed rule
to designate of critical habitat for A. franciscana (77 FR 54517),
available at http://ecos.fws.gov.
[[Page 77291]]
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for Arctostaphylos franciscana during
two comment periods. The first comment period began with the
publication of the proposed rule on September 5, 2012 (77 FR 54517),
and closed on November 5, 2012. We also requested comments on our
revisions to the proposed critical habitat designation and associated
draft economic analysis during a comment period that opened June 28,
2013, and closed on July 29, 2013 (78 FR 38897). We did not receive any
requests for a public hearing. We also contacted appropriate Federal,
State, and local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed rule and
draft economic analysis during these comment periods.
During the first comment period, we received 425 comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received 4,499 comment letters, of which
4,450 were form letters, addressing the proposed critical habitat
designation or the draft economic analysis. All substantive information
provided during the comment periods has either been incorporated
directly into this final determination or is addressed below. Comments
we received are addressed in the following summary and incorporated
into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from five knowledgeable
individuals with scientific expertise that included familiarity with
Arctostaphylos franciscana, its habitat, and biological needs; the
geographic region in which the species occurs; and principles of
conservation biology. We received responses from all of the peer
reviewers.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding critical habitat for
Arctostaphylos franciscana. The peer reviewers generally concurred with
our methods and conclusions and provided additional information,
clarifications, and suggestions to improve the final critical habitat
rule. Peer reviewer comments are addressed in the following summary and
incorporated into the final rule as appropriate.
Peer Reviewer Comments
(1) Comment: All peer reviewers provided comments on conservation
measures, recommendations for the recovery plan, information on threats
to the species, or research needs for Arctostaphylos franciscana.
Our Response: We appreciate the comments we received on
conservation measures, recommendations for the recovery plan, threats
to Arctostaphylos franciscana, and research needs for A. franciscana.
These comments will be considered fully in the development of our
recovery plan.
(2) Comment: One peer reviewer stated that some critical habitat
units may be or may become unsuitable for Arctostaphylos franciscana
because of soilborne pathogens or other reasons over time and that, as
a result, it is important to designate as many independent units as
feasible to increase the odds that at least some of these would remain
free of these pathogens into the near future. The same peer reviewer
stated that by identifying the maximum number of critical habitat
units, the odds would increase of locating sites where the disease
potential would be manageable even if pathogenic Phytophthora species
were introduced.
Our Response: We selected areas of sufficient size and
configuration to sustain natural ecosystem components, functions, and
processes, while designating multiple units to represent a variety of
suitable habitat while also providing for redundancy across the
species' historical range.
(3) Comment: One peer reviewer suggested that, if critical habitat
is designated, the Golden Gate National Recreation Area (GGNRA), the
Presidio Trust, the San Francisco Natural Areas Program, and possibly
others could develop a joint Arctostaphylos franciscana ecosystem
management program to coordinate agency efforts.
Our Response: Critical habitat receives protection under section 7
of the Act through the requirement that Federal agencies ensure, in
consultation with the Service, that any action they authorize, fund, or
carry out is not likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow the government or public to access private lands. Such
designation does not require implementation of restoration, recovery,
or enhancement measures. However, we expect to work collaboratively
with others, including the agencies mentioned by the commenter, in
developing a recovery plan for the species, which could consider
collaboration on a joint Arctostaphylos franciscana ecosystem
management program.
(4) Comment: One peer reviewer noted that the threat from
nonnative, root-rotting Phytophthora species is much greater than that
posed by the introduction of nonnative plants or nutrient deposition.
This reviewer suggested language be incorporated into the Special
Management Considerations or Protections section of the rule. The peer
reviewer stated that in the section, Application of ``Adverse
Modification'' Standard, we also failed to explicitly indicate how
various actions may result in the introduction of pathogenic
Phytophthora species.
Our Response: This information has been incorporated into this
final rule to the extent possible. Please see the Special Management
Considerations or Protections and the Application of ``Adverse
Modification'' Standard sections for the revised language.
(5) Comment: One peer reviewer provided information about Edgewood
County Park, which is located approximately 23 miles (mi) (36
kilometers (km)) south of San Francisco, in San Mateo County, and
suggested that the serpentine chaparral at this park be considered as a
potential critical habitat site that occurs beyond the known historic
distribution of Arctostaphylos franciscana. The peer reviewer suggested
that including an experimental population in a place such as Edgewood
County Park would provide the opportunity to see if situating A.
franciscana in pre-existing chaparral might help to facilitate the
Franciscan manzanita's establishment and long-term survival.
Our Response: We appreciate the suggestions; however, the Act
allows for areas that were not occupied by the species at the time of
listing to be designated as critical habitat only if they are
considered essential to the conservation of the species. During our
development of the proposed rule and this final rule, we did consider
including areas outside the known historic range of the species as
critical habitat. However, after considering the benefits of including
these areas or limiting the designation to the historically known
range, we determined that it was most appropriate not to include areas
outside the known historical range of the species. This is reflected in
our criteria and methods for determining the areas essential to and for
the conservation of the species (see
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Criteria Used To Identify Critical Habitat section). The introduction
of the species outside its historically known range may cause
additional concerns such as hybridization with other rare manzanitas,
or exposing the species to other known and unknown threats. To our
knowledge, Arctostaphylos franciscana has never occurred in San Mateo
County. We checked information in our files that identified two other
Arctostaphylos species as occurring at Edgewood Park. Introducing A.
franciscana to the area may lead to hybridization of all three species
in the area. We also considered the potential threat posed by nitrogen
deposition at the park (Weiss 1999, pp. 1477, 1484). Additionally,
there would not be connectivity between a unit at Edgewood Park and the
units in San Francisco County. As a result, we have determined that
areas such as Edgewood County Park, that are outside the species'
historically known range, are not essential for the conservation of the
species.
(6) Comment: A peer reviewer commented that research into
microclimates available at additional suggested sites, such as Starr
King Open Space, would be needed to seriously consider the sites for
designation and to assess the potential impacts due to recreational
use.
Our Response: Although we agree that it would be helpful to have
information about the microclimates available at the suggested sites,
we have not received any such information during the public comment
period and we are not aware that any exist. We will consider future
research needs in the development of the recovery plan for
Arctostaphylos franciscana.
(7) Comment: One peer reviewer suggested that we include a fifth
primary constituent element (PCE) ``specific to self-sustaining
populations'' to highlight the importance of botanical gardens to the
long-term recovery of Arctostaphylos franciscana, suggesting that, in
effect, botanical gardens that host different individual genotypes that
will contribute to restoring genetic diversity in new populations of A.
franciscana are themselves ``critical habitat'' for the future recovery
of this species. The reviewer suggested that if the botanical garden
specimens of A. franciscana are recognized as a PCE, more work could be
done to determine the provenance of these individuals and to begin
propagating them for future establishment of A. franciscana
individuals.
Our Response: We appreciate the reviewer's suggestion, but refer to
agency guidelines for identifying PCEs, which are listed in the
Criteria Used To Identify Critical Habitat section below. As such, PCEs
are elements of physical and biological features of the habitat, rather
than specific areas of habitat, that are essential to the conservation
of the species. The importance of botanical garden specimens in
recovering Arctostaphylos franciscana will be addressed in the recovery
plan.
The designation of botanical gardens as critical habitat would not
afford additional funds for research as critical habitat applies only
to Federal actions or actions that are permitted or funded by a Federal
agency. In our listing of Arctostaphylos franciscana, we state that the
plants in botanical gardens collected from historical sites and
determined to be the listed entity are afforded protection under the
Act (77 FR 54434; September 5, 2012). As a result, we have already
identified the botanical garden plants and the places they occur as
important for conservation.
(8) Comment: One peer reviewer provided detailed information on the
threat posed by soilborne Phytophthora species.
Our Response: In designating critical habitat, we rely on
information on threats evaluated when we listed the species, but we do
not include an explicit discussion of threats. The information provided
will be valuable when we prepare our recovery plan.
Comments From States
Section 4(i) of the Act states that the Secretary shall submit to
the State agency a written justification for her failure to adopt
regulations consistent with the agency's comments or petition. We
received no comments from the State regarding the proposal to designate
critical habitat for Arctostaphylos franciscana.
Federal Agencies
(9) Comment: The Presidio Trust requested that we revise the
boundary of Unit 4B due to the lack of suitable soils for
Arctostaphylos franciscana in a portion of the proposed unit.
Our Response: Based on information provided by the Presidio Trust
and investigated during a site visit on March 15, 2013, we agree with
the recommended change to remove an area of deep fill soils from the
unit, and we have modified the critical habitat designation for Unit
4B.
(10) Comment: The Presidio Trust and the GGNRA requested exclusions
to Units 3 and 5 (subunits 3A, 3B, and 5A) under section 4(b)(2) of the
Act, due to their concerns that designating these subunits as critical
habitat would impair the options for managing habitat for other
federally listed species (Hesperolinon congestum (Marin dwarf flax),
Clarkia franciscana (Presidio clarkia), or Arctostaphylos hookeri var.
ravenii (Presidio manzanita)).
Our Response: We have not excluded these units from critical
habitat. The Act allows the Secretary of the Interior to exclude areas
when the benefits of exclusion outweigh the benefits of inclusion,
unless the Secretary determines that such exclusion will result in the
extinction of the species (16 U.S.C. 1533(b)(2)). The commenters are
requesting exclusion under this provision, suggesting that designating
these units as critical habitat will impair their ability to manage the
habitats for other federally listed species, and that therefore there
would be a benefit to be gained from exclusion, i.e., eliminating the
impairment to their management options, which would outweigh the
benefits of inclusion. However, the designation of critical habitat
will not have any negative effect on their options for managing the
sites for other species. The designation of critical habitat simply
provides a mechanism for providing for a species' recovery, whereby
Federal agencies must review their actions to ensure they will not
destroy or adversely modify those areas determined essential for the
conservation of the species. It is extremely unlikely that managing
habitat for the benefit of other federally listed plant species would
result in the destruction or adverse modification of critical habitat
for Arctostaphylos franciscana. Therefore, the designation of these
units will not impair the commenter's ability to manage habitat for
other federally listed plant species, and, subsequently, there is no
benefit to be gained by excluding the units. Please note that
Arctostaphylos hookeri var. ravenii (Presidio manzanita) has recently
undergone a taxonomic revision to Arctostaphylos montana ssp. ravenii
(Raven's manzanita). While it is still listed as Arctostaphylos hookeri
var. ravenii (Presidio manzanita) in the List of Endangered and
Threatened Plants at 50 CFR 17.12, in this final rule, we use its
current scientific name.
(11) Comment: The National Park Service requested that Units 1 and
2 be modified to remove portions of these units due to pending soil
remediation activities involved with two Army-era landfills and areas
identified as possibly containing lead contamination.
Our Response: We have reviewed the request. We made minor
adjustments to remove gun batteries, but we have not modified Unit 1 or
2 to remove portions of these units that are subject to soil
[[Page 77293]]
remediation. We expect that the soil remediation activities involved
with the two Army-era landfills will be completed prior to our
publishing this final rule. Additionally, we expect that the habitat in
these units will be more suitable as habitat for the species as a
result of the soil remediation.
(12) Comment: The National Park Service suggested that we refine
the proposed critical habitat units by removing areas where the soil
depth significantly exceeds 39 to 43 centimeters (cm) (15 to 17 inches
(in)).
Our Response: We have not refined the critical habitat units by
removing areas where the soil depth significantly exceeds 39 to 43 cm
(15 to 17 in). To our knowledge this refined information does not exist
for the critical habitat units. We looked at soil survey information
available from the Soil Survey Geographic Database (SSURGO) (U.S.
Department of Agriculture 2013), and the scale at which it is done does
not provide information that we could use to refine the critical
habitat units. Additionally, we contacted the National Park Service
staff at the GGNRA and they stated that they also did not have
similarly refined soil survey information for the area.
(13) Comment: The Presidio Trust indicated that reestablishing
additional Arctostaphylos franciscana, or other serpentine chaparral
species such as A. montanum ssp. ravenii manzanita, would be more
appropriate in the coastal areas where these types of species are
typically found.
Our Response: These two species were not typically found just in
coastal areas, but also occurred inland. Areas which historically most
likely supported both Arctostaphylos franciscana and A. montanum ssp.
ravenii included: (1) The former Laurel Hill Cemetery; (2) the former
Masonic Cemetery; (3) Mount Davidson; and (4) the Presidio. In
addition, there is a record of ``Arctostaphylos pumila'' (Behr 1892; a
misnomer for either A. franciscana or A. montanum ssp. ravenii, or
perhaps both) at the former Protestant Orphan Asylum (Laguna at Haight
Street), long urbanized in the late 1800s. The localities at the former
Laurel Hill Cemetery, the former Masonic Cemetery, and Mount Davidson
are inland, but subject to influence from summer fog. We have
designated multiple locations to maximize the potential that suitable
sites for re-introduction will be available, given the limited habitat
available on the San Francisco peninsula.
San Francisco Recreation and Park Department Comments
(14) Comment: The San Francisco Recreation and Park Department
(SFRPD) expressed concern with the designation of critical habitat in
areas where the management recommendations in the 2006 Significant
Natural Resource Areas Management Plan (SNRAMP) do not align with the
rare plant conservation and restoration. The SNRAMP divides natural
areas into one of three management areas that reflect their relative
conservation value for plants and wildlife. Management areas 1 and 2
(MA-l and MA-2) offer the highest conservation value because they
contain the greatest biological diversity, the most intact native plant
communities, sensitive plant and animal species, and/or high value
wildlife habitat, while management area 3 (MA-3) areas contain
predominantly nonnative vegetation and do not support sensitive
species. The SFRPD provided detailed comments and requested that the
critical habitat designation contain only MA-1 and MA-2 areas. The
SFRPD has requested that the Secretary exercise her discretion to
exclude some areas from the final designation of critical habitat under
section 4(b)(2) of the Act.
Our Response: We appreciate the thorough and well-considered
comments from the SFRPD. However, although we have removed some of the
requested areas because they do not contain the PCEs or because they
are not essential for conservation of the manzanita, we have not
recommended that the Secretary exercise her discretion to exclude the
requested areas from the final designation. We are required by section
4(b)(2) of the Act to consider the economic and other relevant impacts
of critical habitat designation. As noted under Federal Agencies,
above, the Secretary may account for those impacts by excluding any
area for which the benefits of exclusion outweigh the benefits of
designation, as long as this will not result in extinction of the
species. The SFRPD comments and numerous additional comments indicate
concern that critical habitat designation will negatively affect the
SFRPD's ability to manage the areas as prescribed in the SNRAMP. We
disagree. Critical habitat designation in these areas will not have any
negative effect on management of the three management-area types, as
described in the SNRAMP. We consider it extremely unlikely that
management under the SNRAMP would result in the destruction or
modification of critical habitat for Arctostaphylos franciscana. Please
see Modifications to Critical Habitat Unit Information and Boundaries
for additional information on changes to Units 6 through 13.
(15) Comment: The San Francisco Recreation and Park Department
(SFRPD) is concerned that the designation of critical habitat does not
align with the existing high-intensity recreational activities in some
areas, especially designated off-leash dog areas. In their comment,
they noted, ``While portions of the SFRPD natural areas support
significant populations of sensitive plant and animal species, all
SFRPD parkland is subject to intensive public use. Typical recreation
activities in these natural areas include hiking, picnicking, nature
viewing, walking, jogging, dog walking (both on-and off-leash) and
sometimes biking.'' In order to identify lands that may successfully
support the Arctostaphylos franciscana, the SFRPD requested that these
more active areas, referring especially to the designated off-leash dog
areas, be removed from consideration as critical habitat.
Our Response: We reviewed the request, and we removed the existing
off-leash dog play area from Corona Heights (Unit 6) and eliminated
Bernal Heights, an off-leash dog play area, from critical habitat. The
existing off-leash dog play area in Corona Heights is fenced off and
modified with wood chips. We visited Bernal Heights on November 15,
2012. The habitat is degraded and is heavily used. Due to the degraded
nature of these sites, we do not consider these areas to be essential
to the conservation of Arctostaphylos franciscana, and we have removed
them from the final designation.
(16) Comment: The SFPRD provided detailed information regarding
areas that do not appear to contain the biological and geological
features to support Arctostaphylos franciscana, and requested that we
remove these areas from critical habitat.
Our Response: We appreciate the thorough comments regarding areas
that do not appear to contain the biological and geological features to
support Arctostaphylos franciscana. We have made many of the requested
changes. We did not make changes to remove an area from the final
critical habitat designation where the integrity of the critical
habitat unit would be compromised or where the primary constituent
elements still exist. Areas that do not contain the physical and
biological features for the species, but are within critical habitat
units, do not constitute critical habitat although they may still be
included within the boundaries of the units. When
[[Page 77294]]
determining critical habitat boundaries within this final rule, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features for Arctostaphylos franciscana. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps for of this final rule have been
excluded by text in the rule and are not designated as critical
habitat. Therefore, a Federal action involving these lands will not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat. Please see Modifications to Critical Habitat Unit Information
and Boundaries for additional information on changes to Units 6 through
13.
Public Comments
The majority of the public comments we received were form letters
regarding designating SFRPD lands as critical habitat for
Arctostaphylos franciscana. During the two public comment periods, we
received 4,801 form letters that did not provide substantial
information, but expressed the opinion that the designation of critical
habitat on SFRPD land was either appropriate or not appropriate.
(17) Comment: Many commenters think that there would be
restrictions placed on SFRPD land due to the designation of critical
habitat for Arctostaphylos franciscana. The commenters asked us not to
designate any of the city parks as critical habitat and expressed
concerns that designation of critical habitat in San Francisco city
natural areas park lands would: (1) Mean that all activities must be
approved by the Service, in essence giving the Federal Government
control over large parts of the city park lands; (2) lead to
restrictions on public access and public use of these areas thereby
negatively affecting recreation and people's health in a densely
populated city; and (3) mean that healthy trees will have to be cut
down wherever A. franciscana is planted to let the sun reach the plants
thereby affecting the esthetic appeal of the parks and impacting the
wind resistance these trees currently provide.
Our Response: The designation of critical habitat is not expected
to put restrictions on management of SFRPD land and does not mean that
activities in these areas (such as building a new trail) must be
approved by the Service. Additionally, the designation of critical
habitat only has any bearing on Federal actions, in that Federal
agencies will need to consult with us to ensure their actions will not
destroy or adversely modify critical habitat. The designation of
critical habitat only affects actions that are either carried out,
authorized, or funded by a Federal agency. Very few, if any, activities
that take place on SFRPD land have Federal involvement (what we call a
Federal nexus). Because critical habitat only applies to activities
implemented by a Federal agency or that require Federal authorization
or funding, we do not expect the operations of city park lands to
change due to critical habitat designation. The DEA (RTI International
2013b) identified only one informal consultation that the SFRPD might
need during the 20-year timeframe, should they acquire Federal funding
to complete a trail maintenance project that might occur in McLaren
Park (Units 12 and 13). With regard to other activities on nonfederal
lands, the potential for Federal nexus is very low (RTI International
2013b, p. 3-1, 3-2, and 3-7).
The designation of critical habitat does not require the
implementation of restoration, recovery, or enhancement measures.
Additionally, designation of critical habitat does not establish a
refuge, wilderness, reserve, preserve, or other conservation area.
We also note that several areas the public expressed concern over
(McKinley Park and Starr King open space near Potrero Hill, Grandview
Park, the rock outcropping on 14th Ave., and Golden Gate Heights Park)
are not areas that we are designating as critical habitat.
(18) Comment: A couple commenters indicated that the taxonomy of
Arctostaphylos franciscana (Franciscan manzanita) is ambiguous. Some
commenters suggested that the individual manzanita plant that was
discovered on Doyle Drive is possibly a hybrid. One commenter stated
that the East Bay Regional Park District botanical garden in Tilden
Park has planted one of the clones of the individual plant from Doyle
Drive and that it is labeled as a hybrid of A. uva-ursi.
Our Response: The identification of the Doyle Drive manzanita as a
wild representative of Arctostaphylos franciscana was confirmed by
species experts (Vasey and Parker 2010, pp. 1, 5-7). The genetics and
taxonomy of A. franciscana are addressed in the final listing rule (77
FR 54434; September 5, 2012) and are not the subject of this critical
habitat rule.
(19) Comment: One commenter stated that Arctostaphylos franciscana
has been sold by commercial nurseries for about 50 years and suggested
that it is considered endangered due to an anomaly of the Act. Many
other commenters stated that exact clones of A. franciscana relocated
from Laurel Hill in the 1940s can be bought at Bay Area nurseries and
asked why we would close access to SFRPD lands to plant something that
can be bought in Berkeley.
Our Response: In our final listing rule (77 FR 54434; September 5,
2012), we addressed the uncertain genetic make-up of Arctostaphylos
franciscana and heritage of nursery stock sold by commercial nurseries.
As a result, we did not include these plants as part of the listed
entity. We did include the transplanted plants with documented
provenance as A. franciscana as part of the listed entity.
In response to the closure of areas, as noted above, critical
habitat designation does not close areas or direct management changes
or changes in activity. The purpose of the Act is to provide a means
whereby the ecosystem upon which endangered species and threatened
species depend may be conserved. Reliance on planting Arctostaphylos
franciscana in botanical gardens or conserving the species on seed
storage alone does not protect the species in its natural habitat.
Critical habitat designations affect only Federal agency or federally
funded or permitted actions. Critical habitat designations do not have
bearing on activities by private landowners, or by local or State
government agencies, if there is no Federal nexus.
(20) Comment: One commenter stated that additional land farther
inland that meets the criteria for Arctostaphylos franciscana habitat
should be designated, and suggested designating habitat north into
Marin County and east into Contra Costa and Alameda Counties, in order
to preserve the species in the long term due to climate change from sea
level rise. Other commenters suggested locations at Marin Headlands and
near Crystal Springs Reservoir as potential critical habitat sites. No
specific areas were provided.
Our Response: Critical habitat can be revised should it become
necessary to designate additional units due to sea level rise. We
recognize that critical habitat designated at a particular point in
time may not include all of the habitat areas that we may later
determine are necessary for the recovery
[[Page 77295]]
of the species. For these reasons, a critical habitat designation does
not signal that habitat outside the designated area is unimportant or
may not be needed for recovery of the species. See our response to
Comment 5, above, for additional information on planting areas outside
the species' historic range.
(21) Comment: One commenter suggested that we expand the critical
habitat areas to include all the remaining serpentine outcrops in the
City and County of San Francisco that contain the primary constituent
elements. The commenter suggested that conditions are likely to be
appropriate in areas such as Rocky Outcrop, Tank and Kite Hill,
Edgehill Mountain, and McLaren Park. Another commenter suggested the
U.S. Mint; McLaren Park; Bayview Hill; UCSF, Laurel Hill Campus; Buena
Vista Park; Corona Heights Park; Starr King Open Space; and Hunters
Point Serpentine Grassland as sites worthy of consideration for
planting Arctostaphylos franciscana but provided no justification for
the specified locations.
Our Response: As part of our criteria for determining which areas
to designate as critical habitat, we reviewed whether a selection of
areas were of sufficient size and appropriate configuration (spatial
arrangement and amount of fragmentation) to sustain natural ecosystem
components, functions, and processes such as full sun exposure, summer
fog, natural fire and hydrologic regimes, and intact mycorrhizal or
edaphic interactions. We also considered factors such as the protection
of existing substrate continuity and structure, connectivity among
groups of plants to facilitate gene flow among the sites through
pollinator activity and seed dispersal, and sufficient adjacent
suitable habitat for vegetative reproduction and population expansion.
During our development of the proposed rule, we looked at all the
prospective areas associated with serpentine, greenstone, or Franciscan
formations within San Francisco City and County that met our criteria
as potential critical habitat, including most of the areas mentioned by
the commenter. We also conducted site visits to confirm suitability of
sites that we had initially identified using satellite imagery. Based
on this process, we identified the units that were included in the
September 5, 2012, proposed critical habitat (77 FR 54517). Some of the
originally identified sites were not selected as critical habitat due
to their small size. We remain concerned that small sites will not
sufficiently support the pollinator, fruit dispersal, and mycorrhizal
communities that are thought to be necessary for the successful
establishment of the species.
Bayview Park and Corona Heights were included in our original
proposed designation (77 FR 54517). We added two additional units at
McLaren Park and additional subunits at Diamond Heights in our June 28,
2013, revised proposal (78 FR 38897).
(22) Comment: As evidence against designating critical habitat for
Arctostaphylos franciscana outside of the Presidio, one commenter
stated that: (1) The close relationship between A. montanum ssp.
ravenii and A. franciscana and the failure to propagate A. montanum
ssp. ravenii in the 30 plus years since it has been listed as an
endangered species suggests that it is unlikely to be possible to
establish a population of A. franciscana in the wild; (2) the
horticultural requirements for propagating A. franciscana cannot be met
in San Francisco's public parks because it requires fire to germinate
seeds; and (3) the soil in the proposed critical habitat may have been
damaged by heavy herbicide use and without testing, we cannot assume
that the soil will support A. franciscana as the species is dependent
on mycorrhizal fungi in the soil for its long-term survival and the use
of certain herbicides is known to be toxic to microorganisms such as
mycorrhizae.
Our Response: Section 4 of the Act and our regulations at 50 CFR
424.12 require that we designate critical habitat for any species
listed as endangered or threatened . The ability to establish and
manage a population of an endangered species is not one of the criteria
in determining whether critical habitat should be designated. The
circumstances and reasons why extensive propagation of Arctostaphylos
montanum ssp. ravenii has not occurred are complex and unique to that
species. The circumstances surrounding A. franciscana are quite
different, and nursery stock have already been planted in the field.
(23) Comment: One commenter stated that the Service should
designate all areas where individuals propagated from wild plants have
been planted, including all plants derived from regional botanic
gardens, because individuals in these botanic gardens have not been
exempted from the listing rule (in contrast, individuals from private
nurseries have been exempted from listing rule).
Our Response: In determining which areas we should designate as
critical habitat, we included only those areas which contained the
physical or biological features essential to the conservation of the
species or other specific areas otherwise essential for the
conservation of the species. The designation of certain areas as
critical habitat does not mean that areas outside the designation are
not important to the species, and we may revise critical habitat if
information requires us to do so in the future. The areas within the
botanical gardens where the historic Arctostaphylos franciscana plants
occur are not endemic habitats for the species and are heavily managed
areas that do not meet our criteria for critical habitat. However,
because the botanical garden plants are considered part of the listed
entity, they still receive the protections under the Act for an
endangered species. See our response to Comment 5, above, for
additional concerns regarding designating areas outside the historic
range of the species.
(24) Comment: Many commenters noted that Bernal Heights, Glen
Canyon Park (labeled Diamond Heights), Mount Davidson, Corona Heights,
and Bayview Hill have been identified by SFRPD as important bird
habitat, and expressed concern that designation of these locations as
manzanita critical habitat could be detrimental to wildlife that depend
on these areas.
Our Response: The designation of an area as critical habitat does
not require that the existing habitat in that area be changed,
restored, or converted in any way. Critical habitat is a means whereby
Federal agencies are alerted that a certain area is essential for a
given species. In the event that there are future efforts to restore
Arctostaphylos franciscana plants to any locations within these units,
the plantings are not expected to have any effect on existing habitat
other than to restore a native plant that was likely to have been
present at some point in the past. One of the purposes of the Act is to
provide for the conservation of the ecosystem on which a species
depends. We consider this purpose to include conserving the native bird
and other wildlife within these areas.
(25) Comment: Many commenters requested that popular recreation
areas and forests be excluded from the critical habitat designation for
the manzanita. They said that ``the critical habitat designation for
the restoration of the mission blue butterfly at Twin Peaks Park
demonstrates how the critical habitat designation leads to the closure
of the majority of hiking trails even without any significant impacts
on the endangered species.''
Our Response: We wish to clarify that there is no critical habitat
designation for the mission blue butterfly (Icaricia icariodes
missionensis), nor is critical
[[Page 77296]]
habitat designated for any federally listed species at Twin Peaks.
Critical habitat for mission blue butterfly was proposed on February 8,
1977 (42 FR 7972), but the critical habitat designation was never
finalized. However, reintroduction of the mission blue butterfly at
Twin Peaks Natural Area in 2009 did result in re-routing trails away
from mission blue butterfly habitat, and closing of some social trails
(Wayne et al. 2009, pp. 35-36). A social trail is a path that is
created over time by off-trail use.
(26) Comment: One commenter suggested that planting in multiple
areas, without the restrictions of critical habitat, could be more
conducive to Arctostaphylos franciscana recovery than defining 5 or 10
limited locales as ``critical habitat'' on the basis of limited data
and limited size in San Francisco alone. Areas suggested for planting
included San Francisco, Marin, and the Peninsula including Milagro and
Sweeney ridge areas, above the Devil's slide, and as far south as San
Luis Obispo County.
Our Response: Section 4 of the Act and our regulations at 50 CFR
424.12 require that we designate critical habitat for any species
listed as endangered or threatened, to the extent that designation is
prudent and determinable. We believe we have made our determination of
critical habitat by using the best scientific and commercial
information available and do not think it is appropriate to plant
outside the historic range of the species (see our responses to
Comments 5 and 17, above). However, we will consider this information
when we develop a recovery plan for Arctostaphylos franciscana.
(27) Comment: One commenter suggested that planting any species,
including Arctostaphylos franciscana, should not impede or delay
essential seismic retrofit work, specifically the Twin Peaks Reservoir,
indicating that the reservoir, an essential part of San Francisco fire
prevention resources in the event of an earthquake, was to be
reconstructed starting in 2012 and is now delayed to 2013 or 2014.
Our Response: The Twin Peaks Reservoir is not within the designated
critical habitat. Therefore, critical habitat designation for
Arctostaphylos franciscana will not impede or delay essential seismic
retrofit work on the Twin Peaks Reservoir.
(28) Comment: Many commenters pointed out that we called most of
the critical habitat units unoccupied. The commenters stated that these
areas contain many trails popular with hikers, bikers, and dog walkers
and that thousands of people walk both with and without dogs in these
areas every day and that they are not ``unoccupied.''
Our Response: We wish to clarify that when we used the term
``unoccupied'' that we were only referring to whether or not the
critical habitat unit contains the listed species (Arctostaphylos
franciscana) and not whether the areas are used by the public.
Economic Analysis Comments
(29) Comment: One commenter stated that the economic benefits of
the critical habitat designation, such as those benefits from increased
restoration jobs, increased value of lands in the critical habitat, and
recreation opportunities associated with stewardship of a species from
the brink of extinction, have not been sufficiently quantified in the
economic analysis.
Our Response: Benefits are addressed qualitatively in the FEA. No
management changes or restoration jobs are expected as a result of the
designation of critical habitat; therefore no changes in jobs or land
value are anticipated.
(30) Comment: One commenter stated that the draft economic analysis
is not adequate for several reasons including the lack of costs
attributed to restrictions on public use, failure to account for
additional plantings, and the low consultation costs ascribed to the
SFRPD. The commenter states that ``any significant changes or work done
in the areas, or use approval or restrictions, will require
consultation, with much higher than disclosed costs.''
Our Response: The primary purpose of the economic analysis is to
identify and value the incremental impacts of the critical habitat
designation. Incremental impacts are the impacts attributable to the
critical habitat designation and are separate from any impacts
resulting from the listing the species or the actions taken to protect
the species. Only activities that involve a Federal nexus (e.g.,
require a Federal permit or receive funding from the Federal
government) require a consultation to determine whether the activity is
likely to adversely affect the physical or biological features (i.e.,
features of the habitat that are important to the species). Based on
information from the SFRPD and the Service, few consultations between
the SFRPD and the Federal Government are anticipated because only
projects with Federal funding, requiring a Federal permit, or having
other Federal association will require a consultation. It is also
anticipated that consultations will be informal, and only
administrative costs will be incurred during the consultation process
because the SNRAMP already has management measures in place to conserve
and protect the habitats within the parks.
Furthermore, no restrictions or restoration projects as a result of
critical habitat designation are anticipated. Any costs associated with
additional plantings of the species are attributable to the species'
listing and not the critical habitat designation.
(31) Comment: Many commenters did not agree with other comments
stating that recreational opportunities will be significantly impacted
by the designation and further stated that the designation may provide
additional restoration jobs as well as create opportunities for local
businesses.
Our Response: Based on information from the SFRPD and our
consultation history, no management changes or restoration programs are
anticipated to be implemented solely as a result of the critical
habitat designation. Therefore, restoration jobs and business
opportunities are not estimated in this analysis. Effects of critical
habitat on recreation are discussed further in our response to Comment
15.
(32) Comment: One commenter opposes the restriction of use and
access as well as the application of shrinking funds to restore
Arctostaphylos franciscana in areas where it does not currently exist.
Our Response: The management activities outlined in the SNRAMP are
consistent with prevention of adverse modification to the proposed
designated critical habitat, and no management changes are expected due
to designation of critical habitat. Therefore, restrictions of use and
habitat restoration costs are not anticipated as a result of critical
habitat designation. Any species reintroduction costs would be
attributable to the listing of the species and not the critical habitat
designation.
(33) Comment: The commenter states that the draft economic analysis
is overly simplistic. The commenter believes that additional
restrictions on use by residents and visitors due to the designation
will in turn generate additional costs as a result of loss of
wellbeing, opportunity costs by current users of the park, and public
court costs arising from public use conflicts.
Our Response: No management changes, such as use restrictions, are
expected due to designation of critical habitat; therefore no use
restriction-related costs are expected.
(34) Comment: One commenter states that the draft economic analysis
is incomplete because it does not account for the impacts to the
public. The commenter believes physical and
[[Page 77297]]
mental health will be negatively impacted by the critical habitat
designation.
Our Response: The primary purpose of the economic analysis is to
identify and assign values for the incremental impacts of the critical
habitat designation. Incremental impacts are the impacts attributable
to the critical habitat designation and are separate from any impacts
resulting from the listing the species or the actions taken to protect
the species. Only activities that involve a Federal nexus (e.g.,
require a Federal permit or receive funding from the Federal
Government) and that are likely to adversely modify the physical or
biological features will be affected by the critical habitat
designation. Furthermore, because no management changes or use
restrictions are anticipated as a result of the critical habitat
designation, impacts to the public recreation opportunities are not
expected.
(35) Comment: One commenter does not agree with the estimates of
the draft economic analysis or the assumption that many costs will be
incurred regardless of whether critical habitat is designated. The
commenter states that the designation of Bayhill Park (Unit 11) will
likely require the removal of all 6,000 trees at the site because
Arctostaphylos franciscana requires full sun. Because the habitat is
unoccupied and tree removal is typically $3,000 per tree, all of these
costs would be considered incremental with the exception of the 505
trees that are currently identified for removal as part of the Natural
Areas Program management plan. Additionally, the Recreation and Park
Department may incur significant legal fees due to legal cases
associated with the endangered species (e.g., they could be sued if the
reintroduced endangered species do not survive on the grounds of
insufficient care). The commenter states a similar case that recently
cost the Recreation and Parks Department $386,000 even though the suit
was lost. The commenter also states that the cost estimate does not
include maintenance and care for the reintroduced plants in State parks
and only discusses the administrative and consultation costs associated
with the critical habitat designation. Finally, the commenter states
that even when there is a consultation, it would not provide for care
or contribute to the progress of the plant.
Our Response: Management activities and restoration actions under
the existing SNRAMP are consistent with the management of critical
habitat to conserve Arctostaphylos franciscana and its habitat and
prevent adverse modification; therefore no additional incremental cost
is expected. The designation of critical habitat for A. franciscana
does not require the large-scale removal of trees.
Although no public court costs related to the health of the
endangered species are anticipated, these costs would be attributable
to the listing of the species and not to the designation of critical
habitat. Costs associated with the maintenance and care of the species
are also baseline costs, and would not be attributable to the
designation of critical habitat.
Summary of Changes From Proposed Rule
In preparing our final designation of critical habitat for
Arctostaphylos franciscana, we reviewed comments we received on the
2012 proposed designation, the 2013 revised proposed designation of
critical habitat, and the 2013 DEA. In the June 28, 2013, revised
proposal (78 FR 38897), we revised unit acreages to correct
inaccuracies made due to use of an incorrect map projection, resulting
in a revised acreage of 197 ac (80 ha) for the 11 units that we
originally proposed on September 5, 2012 (77 FR 54517). In the same
revised proposal, we also increased the proposed designation by
approximately 73 ac (30 ha) to a total of approximately 270 ac (109 ha)
in 13 critical habitat units located in the City and County of San
Francisco, and made some modifications to the methods used to delineate
the proposed units. We keep those revisions in this final designation.
Additionally, this final designation reflects minor clarifications in
the text of the 2013 revised proposal, as well as more substantive
changes to the revised proposal, as follows:
Revision of Physical or Biological Features
In this final designation, we revised the heading of ``Sites for
Breeding, Reproduction, or Rearing (or Development) of Offspring'' to
``Sites Exhibiting Necessary Physical or Biological Requirements'' to
better reflect and more appropriately characterize the components of
summer fog, fungal mycorrhizae relationship, and pollinators.
Modifications to Critical Habitat Unit Information and Boundaries
We are making modifications to the critical habitat based on
comments that we received from the Presidio Trust, the GGNRA, the
SFRPD, and the public. We also based some of these changes on several
site visits that we made. We received comments from the Presidio Trust
and GGNRA on Units 1and 2, and subunits 3A, 3B, 4B, and 5A, and we made
subsequent site visits to Units 2, 4, and A. Additionally, we received
comments from the SFRPD on Units 6 through 13, and we made site visits
to Units 12 and 13. We are modifying the following units and subunits:
1, 2, 4B, 5A, 6, 9A, 9B, 10, 11, 12A, 12B and 13, as follows:
(1) In Unit 1, which is not occupied by the species at the time of
listing, we identified a road that does not provide any habitat for the
species. We have removed this area from the unit because the roaded
area does not provide habitat and is not considered essential for the
conservation of the species, thereby decreasing the acreage of the unit
by less than 0.1 ac (0.4 ha).
(2) In Unit 2, as a result of restoration activities for the
species, 68 A. franciscana plants were reintroduced to this unit since
the listing. This unit is currently occupied, although it was not
occupied at the time of listing. Also, the acreage reported in the
revised proposed critical habitat rule should have been 22.3 ac (9.0
ha) instead of 21.3 ac (8.7 ha). We had noticed this difference, but it
was not identified in the revised proposed critical habitat. In Unit 2,
we also identified historic military gun batteries (concrete
emplacements) and a parking lot along the edge of the unit. We have
removed these areas from the unit because they are not essential for
the conservation of the species and would not support Arctostaphylos
franciscana. do not and The acreage of the unit was thereby decreased
by less than 1 ac (0.4 ha) from 22.3 ac to 21.6 ac (9.0 ha to 8.7 ha).
(3) In Unit 4 (unoccupied by the species at the time of listing),
we identified an area of subunit 4B along the edge of a quarry wall and
roadway that does not provide appropriate substrate conditions for
Arctostaphylos franciscana. We have refined our designation within
subunit 4B to remove this area because it does not provide habitat for
the species and thus is not considered essential for the conservation
of the species, thereby reducing the acreage of the subunit from 4.0 ac
to 1.1 ac (1.6 ha to 0.4 ha).
(4) In Unit 5 (occupied by the species at the time of listing), we
removed the area of historic forest in subunit 5A because the area does
not provide the physical or biological features essential to the
conservation of the species. As a result, we have refined our
designation within subunit 5A and reduced it from 13.2 ac to 11.8 ac
(5.4 ha to 4.8 ha), reducing the acreage of the subunit by
approximately 1.4 ac (0.6 ha).
[[Page 77298]]
(5) In Unit 6 (unoccupied by the species at the time of listing),
we removed the existing off-leash dog play area and part of the MA-3
areas because the off-leash dog play area is degraded and the MA-3
areas are wooded. We have determined that these areas of the unit are
not essential for the conservation of the species because they do not
provide the habitat conditions appropriate for the species, and have
accordingly refined our designation within Unit 6 and reduced it from
6.1 ac to 5.2 ac (2.5 ha to 2.1 ha), reducing the acreage of the unit
by 0.9 ac (0.4 ha).
(6) In subunit 9A (unoccupied by the species at the time of
listing), we removed areas of a wet-meadow and an area with deep, loamy
soil. Neither of these areas provide the appropriate habitat conditions
for Arctostaphylos franciscana and we have determined that they are not
essential for the conservation of the species. We have accordingly
refined our designation within subunit 9A and reduced it from 21.3 ac
to 19.1 ac (8.6 ha to 7.7 ha), reducing the acreage of the unit by 2.2
ac (0.9 ha).
(7) In Unit 9 (unoccupied by the species at the time of listing),
we removed several areas having either wet-soil or fill material within
subunit 9B because none of these areas provide the appropriate habitat
conditions for Arctostaphylos franciscana and as a result, we have
determined that they are not essential for the conservation of the
species. We have refined our designation within subunit 9B and reduced
it from 5.7 ac to 3.9 ac (2.3 ha to 1.6 ha), reducing the acreage of
the subunit by 1.8 ac (0.7 ha).
(8) Unit 10 (Bernal Heights) (unoccupied by the species at the time
of listing) was removed from the designation. On April 26, 2012, and
November 15, 2012, we conducted site visits to review our proposed
designation. During our review, we examined the habitat conditions at
Unit 10 and observed that the area is highly degraded and heavily used
by the public. After further consideration of the habitat conditions at
the site and review of our criteria for selecting areas as critical
habitat, we do not consider the areas at Bernal Heights to be essential
for the conservation of the species, and we therefore do not include
the proposed Unit 10 (14.9 ac (6.0 ha)) in this final designation of
critical habitat.
(9) In Unit 11 (unoccupied by the species at the time of listing),
we removed two MA-3 areas. One of the areas contained modified and
degraded habitat. The other area contained substantial forest
overstory. We have determined that these areas are not essential for
the conservation of Arctostaphylos franciscana. However, we have
determined that other MA-3 areas within the unit are essential for the
conservation of the species due to their importance to preserving the
integrity of the unit. We have therefore refined our designation within
Unit 11 and reduced it from 53.2 ac to 42.4 ac (21.5 ha to 17.2 ha),
reducing the acreage of the unit by 10.8 ac (4.3 ha).
(10) In Unit 12 (unoccupied by the species at the time of listing),
we refined our mapping boundaries of subunit 12A to remove a marginal
area that we now do not consider essential for the conservation of the
species because it would not support Arctostaphylos franciscana. The
acreage of the subunit was reduced by less than 1 ac (0.4 ha) from 14.3
ac to 13.4 ac (5.8 ha to 5.4 ha). We also removed a wetland seep area,
picnic area, and a MA-3 area in subunit 12B. These areas do not provide
the appropriate habitat conditions for A. franciscana and are therefore
not considered to be essential for the conservation of the species. We
have refined our designation within subunit 12B and reduced it from
12.3 ac to 11.6 ac, thereby reducing the acreage of the subunit by 0.7
ac (0.3 ha).
(11) In Unit 13 (unoccupied by the species at the time of listing),
we removed two MA-3 areas with dense vegetation that we have determined
are not essential for the conservation of the species, because these
areas would not provide the appropriate habitat conditions for
Arctostaphylos franciscana. Accordingly, we have refined our
designation within Unit 13 and reduced it from 29.7 ac to 25.7 ac (11.9
ha to 10.4 ha).
(12) In Units 8 and 11 the GIS mapping was adjusted to be
coincident with parcel lines within the units. These parcel lines
matched the appropriate habitat conditions for Arctostaphylos
franciscana and the areas considered essential for the conservation of
the species. As a result, there were small changes (0.1 ac (0.04 ha) or
less) to the total area considered critical habitat for these two
units.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
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 the
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 to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to 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, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures. 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) of the Act would apply,
but even in the event of a destruction or adverse modification finding,
the obligation of the Federal action agency and the landowner is not to
restore or recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require
[[Page 77299]]
special management considerations or protection. For these areas,
critical habitat designations identify, to the extent known using the
best scientific and commercial data available, those physical or
biological features that are essential to the conservation of the
species (such as space, food, cover, and protected habitat). In
identifying those physical or biological features within an area, we
focus on the principal biological or physical constituent elements
(primary constituent elements such as roost sites, nesting grounds,
seasonal wetlands, water quality, tide, soil type) that are essential
to the conservation of the species. Primary constituent elements are
those specific elements of the physical or biological features that
provide for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure 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, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
Climate change will be a particular challenge for biodiversity because
the interaction of additional stressors associated with climate change
and current stressors may push species beyond their ability to survive
(Lovejoy 2005, pp. 325-326). The synergistic implications of climate
change and habitat fragmentation are the most threatening facet of
climate change for biodiversity (Hannah et al. 2005, p.4). Current
climate change predictions for terrestrial areas in the Northern
Hemisphere indicate warmer air temperatures, more intense precipitation
events, and increased summer continental drying (Field et al. 1999, pp.
1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6;
Intergovernmental Panel on Climate Change (IPCC) 2007, p. 1181).
Climate change may lead to increased frequency and duration of severe
storms and droughts (McLaughlin et al. 2002, p. 6074; Cook et al. 2004,
p. 1015; Golladay et al. 2004, p. 504).
We anticipate these changes could affect a number of native plants
and their habitats, including Arctostaphylos franciscana occurrences
and habitat. For example, if the amount and timing of precipitation
changes or the average temperature increases in northern California,
the following changes may affect the long-term viability of A.
franciscana in its current habitat configuration:
(1) Drier conditions or changes in summer fog may result in
additional stress on the transplanted plant.
(2) Drier conditions may also result in lower seed set, lower
germination rate, and smaller population sizes.
(3) A shift in the timing of annual rainfall may favor nonnative
species that impact the quality of habitat for this species.
(4) Warmer temperatures may affect the timing of pollinator life-
cycles causing pollinators to become out-of-sync with timing of
flowering A. franciscana.
(5) Drier conditions may result in increased fire frequency, making
the ecosystems in which A. franciscana currently grows more vulnerable
to the initial threat of burning, and to subsequent threats associated
with erosion and nonnative or native plant invasion.
However, currently we are unable to specifically identify the ways
that climate change may impact Arctostaphylos franciscana; therefore,
we are unable to determine if any additional areas may be appropriate
to include in this final critical habitat designation.
For these reasons, a critical habitat designation does not signal
that habitat outside the designated area is unimportant or may not be
needed for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
[[Page 77300]]
(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 specific physical or biological features essential
for Arctostaphylos franciscana from studies of this species' habitat,
ecology, and life history as described in the Critical Habitat section
of the proposed rule to designate critical habitat published in the
Federal Register on September 5, 2012 (77 FR 54517), and in the
information presented below. Additional information can be found in the
final listing rule published in the Federal Register on September 5,
2012 (77 FR 54434); the 2003 Recovery Plan for Coastal Plants of the
Northern San Francisco Peninsula (Service 2003); and the Raven's
Manzanita Recovery Plan (Service 1984). We have determined that
Arctostaphylos franciscana requires the following physical or
biological features:
Space for Individual and Population Growth and for Normal Behavior
Historically, the 46-mi\2\ (119-km\2\) tip of the San Francisco
peninsula contained a diversity of habitat types including dunes,
coastal scrub, maritime chaparral, grasslands, salt and fresh water
marsh, oak woodlands, rocky outcrops, and serpentine habitats (Holland
1986, pp. 1-156; Sawyer and Keeler-Wolf 1997, p. 211; National Park
Service 1999, pp. 18-26). The vegetation of the area is influenced by
coastal wind, moisture, and temperature (Service 1984, pp. 11-16;
Chasse et al. 2009, p. 4). The maritime chaparral and open grassland
plant communities, of which Arctostaphylos franciscana is a part, may
have been present historically to a greater extent (even before habitat
loss through development), but the cumulative effects of periodic
burning by native Americans, grazing during the mid-1800s to early
1900s, gathering of firewood during the U.S. military period, and fire
suppression actions during the 1900s to the present may have converted
many of the areas to nonnative grassland or depauperate coastal scrub
(Sweeney 1956, pp. 143-250; Schlocker 1974, pp. 6-7; Christensen and
Muller 1975, pp. 29-55; Keeley and Keeley 1987, pp. 240-249; Greenlee
and Langenheim 1990, pp. 239-253; Tyler 1996, pp. 2182-2195; Keeley
2005, pp. 285-286; Chasse 2010, p. 2).
The current geographic distribution of Arctostaphylos franciscana
has been greatly reduced by habitat loss in San Francisco. In 2009, the
single remaining wild plant was discovered along the freeway access to
the Golden Gate Bridge during construction activities and was
transplanted to a natural area within the Presidio of San Francisco
(Chasse et al. 2009, pp. 3-4, 10-11; Gluesenkamp et al. 2010, pp. 10-
15). Historic populations of A. franciscana, as identified from
herbarium records, occurred locally, often with the endangered A.
montana ssp. ravenii. A single individual of A. montana ssp. ravenii
exists in the wild today within the Presidio (44 FR 61910; October 26,
1979). Both manzanitas occurred on or near scattered exposures of
bedrock outcrops (Behr 1892, pp. 2-6; Greene 1894, p. 232; Stewart
1918, p. 1; Service 1984, pp. 11-12; McCarten 1993, pp. 4-5).
Most bedrock outcrops of the interior parts of San Francisco are
characterized by areas often at ridges with steep topography, thin dry
soils, and bare rock, conditions that maintain permanently sparse
vegetative cover, at least locally (Service 2003, p. 16). Many persist
as undevelopable knobs on the crests of hills up to 281 meters (922
feet) above sea level, or as high, unstable, coastal bluffs subject to
frequent landslides. They are composed mostly of serpentine and
greenstone or other mafic and ultramafic rocks (Schlocker 1974, pp. 8-
16, Plate 3). These serpentine and rocky areas are often harsh and
contain unproductive soils with poor nutrient levels and reduced water-
holding capacity (Holland 1986, p. 8; Sawyer and Keeler-Wolf 1997, p.
211; Chasse et al. 2009, pp. 12-13). McCarten (1993, pp. 4-5)
identified some of the rock outcrops within the area as being sparsely
vegetated with open barrens that may have historically contained
Arctostaphylos species such as A. montana ssp. ravenii and ``A. hookeri
ssp. franciscana [A. franciscana].'' He referred to the serpentine
areas on the Presidio as ``Decumbent Manzanita Serpentine Scrub'' and
stated that the plant community is one of the rarer plant communities
in the area. Historically, these areas included plant associations
classified as coastal grassland (prairie) and variations of coastal
scrub. Historic voucher specimens and observations cited A. franciscana
occurring with Quercus agrifolia (coast live oak), Ceanothus
thyrsiflorus (coast blue blossom), Baccharis pilularis (coyote brush),
Heteromeles arbutifolia (toyon), Ericameria sp. (mock heather),
Eriogonum sp. (buckwheat), and Achillea sp. (yarrow) (Eastwood 1905,
pp. 201-202). The bedrock outcrop vegetation in San Francisco is
variable today, including elements of remnant native vegetation as well
as naturalized nonnative vegetation (National Park Service 1999, pp. 1,
17-18).
Some knowledge of the habitat requirements of Arctostaphylos
franciscana can be inferred from historic locations and information on
voucher specimens. The historic sites were mostly underlain by
serpentine or greenstone substrates (Roof 1976, pp. 20-24). Sites which
were occupied by A. franciscana historically were characterized as bare
stony or rocky habitats often along ridges and associated with bedrock
outcrops and other areas with thin soils on the San Francisco peninsula
(Eastwood 1905, pp. 201-202; Brandegee 1907). Rowntree (1939, p. 121)
observed A. franciscana ``forming flat masses over serpentine
outcroppings and humus-filled gravel and flopping down over the sides
of gray and chrome rocks.'' In a study to determine potential
restoration sites for A. montana ssp. ravenii, the general site
conditions identified included open exposures with mild slopes of
shallow rocky soils with some coastal fog (McCarten 1986, pp. 4-5).
These rocky outcrops within the San Francisco peninsula occur in the
geologic strata known as the Franciscan formation. The Franciscan
formation, which has contributed to the characteristic appearance and
distribution of flora on portions of the peninsula, is a result of
fault zones occurring in the area. These faults have uplifted and
folded various geologic strata and formed the characteristic
``islands'' of rock outcrops and soils associated with A. franciscana.
The thrust-fault shear zone runs across San Francisco from Potrero Hill
in the southeast to the Presidio in the northwest (Schlocker 1974, pp.
1-2). Figure 1, below, identifies bedrock outcrops occurring in the San
Francisco Peninsula.
[[Page 77301]]
[GRAPHIC] [TIFF OMITTED] TR20DE13.006
Franciscan formation rocks include sandstones, shale, chert, greenstone
(mostly basalts), serpentinite, gabbro-diabase, and mixed sheared rocks
along fault zones. The outcrops range from erosion-resistant basalt and
chert, to serpentine rocks that are hard and dense to soft, friable,
and plastic (Schlocker 1974, pp. 56-65). The soils surrounding the rock
outcrops are often thin. Serpentine rocks and soils derived from them
are particularly low in calcium and high in magnesium and heavy metals,
and greatly influence local vegetation. The majority of sites where A.
franciscana was historically found occurred on serpentine outcrops,
except at Mount Davidson, which is comprised of greenstone and mixed
Franciscan rocks. The characteristics of serpentine soils or rock
outcrops often result in exclusion or growth suppression of many plant
species, creating open or barren areas that are not as subject to plant
competition for light, moisture, and nutrients, which often causes
selection for a narrow range of endemic plant species such as A.
franciscana (Raven and Axelrod 1978, pp. 24-26; Kruckeberg 1984, pp.
11-17; Service 1984, pp. 11-12; McCarten 1993, pp. 4-5; Service 1998,
pp. 1-1, 1-2, 1-10-1-12; Service 2003, pp. 15-16). Therefore, based on
the above information, we identify sites with open bedrock associated
with serpentine or greenstone outcrops to be an essential physical or
biological feature for this species.
[[Page 77302]]
Open Habitat
As stated above, Arctostaphylos franciscana historically occurred
in open or semi-open areas associated with rock outcroppings in coastal
scrub or serpentine maritime chaparral. Although A. franciscana is
considered to be endemic to serpentine soils (Kruckeberg 1984, pp. 11-
17; Safford et al. 2005, p. 226), its historic occurrence at Mount
Davidson on greenstone and at other locations on mixed Franciscan
rocks, and its ability to grow at nursery locations (with management),
calls into question such a strict edaphic affinity. McCarten (1993, p.
8) stated that the species most likely evolved in these open to semi-
open, thin-soiled, nutrient-poor locations due to a response to lack of
competition from nearby plants in better soil locations rather than a
specific plant-serpentine soil relationship. Being more open, these
sites are exposed to direct sun with little shading from nearby
vegetation and are often dry. The nutrient-poor soils of these
outcroppings also limit the number of other species able to tolerate
these locations. Therefore, based on the information above, we identify
areas with mostly full to full sun, which are open, barren, or sparse
with minimal overstory or understory of vegetation to be an essential
physical or biological feature for this species.
Sites Exhibiting Necessary Physical or Biological Requirements
Summer Fog
Summer fog is a climatic condition that characterizes many areas
within the San Francisco Bay area, including the Presidio (Schlocker
1974, p. 6; Null 1995, p. 2). Summer fog increases humidity, moderates
drought pressure, and provides for milder summer and winter temperature
ranges than occur in interior coastal areas. Summer fog is a major
influence on the survival and diversity of manzanitas and other
vegetation within this zone (Patton 1956, pp. 113-200; McCarten 1986,
p. 4; McCarten 1993, p. 2; Service 2003, p. 66; Chasse et al. 2009, p.
9; Johnstone and Dawson 2010, p. 5). The cooler temperatures and
additional moisture availability during the summer may lessen the harsh
site conditions of the thin-soiled, nutrient-poor, rock outcrops (Raven
and Axlerod 1978, pp. 1, 25-26; Kruckeberg 1984, pp. 11-17). As a
result, we have identified areas influenced by coastal summer fog to be
an essential physical or biological feature for Arctostaphylos
franciscana.
Fungal Mycorrhizae Relationship
Arctostaphylos species form strong symbiotic relationships with
over 100 different fungal mycorrhizae species (McCarten 1986, p. 4;
Bruns et al. 2005, p. 33; Chase et al. 2009, p. 12). These fungi are
located in the soil and form an ectomycorrhizal sheath around the host
plant's roots (Salisbury and Ross 1985, pp. 116-118). The presence of
these fungal mycorrhizae is essential for the plant because they assist
in water and nutrient absorption (Bruns et al. 2002, pp. 352-353). The
fungi form a network of connections within the soil to other plants (of
the same or other species) and may play a major role in ecosystem
sustainability, thereby leading to increased plant germination and
vigor (Horton et al. 1999, p. 94; Simard and Durall 2004, pp. 1140-
1141). As a result, we identify areas with a healthy fungal mycorrhizae
component to be an essential physical or biological feature for A.
franciscana.
Pollinators
Pollinators have been observed on the wild Arctostaphylos
franciscana plant; however, no surveys have been completed to identify
the most important pollinators. The most frequent pollinators seen have
been bees and bumblebees. Hummingbirds and butterflies have also been
observed visiting the flowers, likely because few other plants are
blooming during the winter months when A. franciscana blooms (Vasey,
pers. comm. 2010).
Two recent studies of bee diversity have been conducted at several
sites in the Presidio (Wood et al. 2005, entire; Van Den Berg et al.
2010, entire). The study conducted in 2004 (Wood et al. 2005, entire)
established a baseline of species and numbers of bees found at nine
sites on the Presidio. The study conducted in 2008 (Van Den Berg et al.
2010, entire) resampled three of these sites, which included the site
near the wild A. montana ssp. ravenii plant, and added a new previously
unsampled site. Overall, the average bee species richness and abundance
at the three previously sample sites were greater in 2004 with 47
species and 1,283 individuals compared to 36 species and 878
individuals in 2008 (Van Den Berg et al. 2010, p. 4).
We are also aware of an initial study in which a Presidio staff
person monitored the flowering times and abundances of Arctostaphylos
montana ssp. ravenii and A. franciscana; and secondly, observed the
abundance and diversity of likely pollinators visiting each plant
(Gambel 2012, p. 3). The mid-winter to early spring flowering times of
the Arctostaphylos coincided with bumble bee emergence times. Bee
abundance and open flower abundance both spiked in early March. Most of
the bumble bees were identified by Dr. Hafernik and Jess Gambel as
Vosnesensky bumble bee (Bombus vosnesenskii) or black-tailed bumble bee
(Bombus melanopygus), although other similar species may also have been
present (Gambel 2012, p. 17).
In a study on Arctostaphylos patula in northern California, 3
solitary bees (Halictidae and Andrenidae), 2 long-tongued bees
(Anthophoridae), 1 honey bee (Apidae), and 4 bumble bees (Apidae) were
observed pollinating that species (Valenti et al. 1997, p. 4), which is
in addition to the 27 other hymenopteran species previously documented
by species experts (Krombein et al. 1979, entire). These pollinators
are important as they are able to travel long distances and cross
fragmented landscapes to pollinate A. franciscana. Conserving habitat
where these pollinators nest and forage will sustain an active
pollinator community and facilitate mixing of genes within and among
plant populations, without which inbreeding and reduced fitness may
occur (Widen and Widen 1990, p. 191).
Pollinators also require space for individual and population
growth, so adequate habitat should be available for pollinators in
addition to the habitat necessary for Arctostaphylos franciscana
plants.
In this critical habitat rule, we acknowledge that healthy
pollinator populations provide conservation value to Arctostaphylos
franciscana. However, we do not currently include areas for pollinators
and their habitats within this designation, because: (1) We have only
initial information on likely pollinators and their habitat needs are
lacking; and (2) We were not able to quantify the amount of habitat
needed for pollinators, given the preliminary nature of information on
the specific pollinators of A. franciscana.
Habitats Representative of the Historical, Geographical, and Ecological
Distribution of the Species
The type locality (the geographical location where a type specimen
was originally found) for Arctostaphylos franciscana is the former
Laurel Hill Cemetery (Eastwood 1905, pp. 201-202), an area south of the
Presidio between California Street and Geary Boulevard. Voucher
specimens for A. franciscana also exist from exposed slopes of Mount
Davidson (Roof 1976, pp. 21-24), and reliable observations are recorded
from the former Masonic
[[Page 77303]]
Cemetery (bounded by Turk Street, Masonic Avenue, Park Avenue, and
Fulton Street near Lone Mountain) (Roof 1976, pp. 21-24). Behr (1892,
pp. 2-6) observed a possible fourth historic occurrence near the former
Protestant Orphan Asylum near Laguna and Haight Streets. All these
sites have been lost due to development, except for the Mount Davidson
location, which has mostly been altered and converted to nonnative
habitat. The ``rediscovery site'' at Doyle Drive near the Golden Gate
Bridge has also been lost due to freeway construction (Gluesenkamp et
al. 2010, pp. 9-10; Park Presidio 2012, pp. 1-2). The lone ``wild'' A.
franciscana shrub has been transplanted to a site within the Presidio
(Gluesenkamp et al. 2010, pp. 10-15). Development and habitat
alteration from human activities and introduction of nonnative plant
species have greatly altered the majority of remaining habitat for the
species, although some appropriate habitat for the species still
remains within the San Francisco peninsula. As a result, we have
identified the species' general range to include only the area within
the San Francisco peninsula from the Presidio of San Francisco south to
Mount Davidson. Although additional sites outside the San Francisco
peninsula, but within the Bay Area, contain appropriate habitat
characteristics, these areas are outside the known historic range of
the species, and we are not designating these areas as critical habitat
at this time.
Primary Constituent Elements for Arctostaphylos franciscana
Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of Arctostaphylos franciscana in areas occupied at the
time of listing (i.e., areas that are currently occupied), focusing on
the features' primary constituent elements. We consider primary
constituent elements (PCEs) to be the elements of physical and
biological features that provide for a species' life-history processes
and that are essential to the conservation of the species.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the species, through the identification of the features' primary
constituent elements sufficient to support the life-history processes
of the species. Based on our current knowledge of the physical or
biological features and habitat characteristics required to sustain the
species' life-history processes, we determine that the primary
constituent elements specific to self-sustaining Arctostaphylos
franciscana populations are:
(1) Areas on or near bedrock outcrops often associated with ridges
of serpentine or greenstone, mixed Franciscan rocks, or soils derived
from these parent materials.
(2) Areas having soils originating from parent materials identified
above in PCE 1 that are thin, have limited nutrient content or
availability, or have large concentrations of heavy metals.
(3) Areas within a vegetation community consisting of a mosaic of
coastal scrub, serpentine maritime chaparral, or serpentine grassland
characterized as having a vegetation structure that is open, barren, or
sparse with minimal overstory or understory of trees, shrubs, or
herbaceous plants, and that contain and exhibit a healthy fungal
mycorrhizae component.
(4) Areas that are influenced by summer fog, which limits daily and
seasonal temperature ranges, provides moisture to limit drought stress,
and increases humidity.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the direct and indirect effects associated with the following threats:
Habitat loss and degradation from development or human activities;
competition from nonnative plants; small population size; and soil
compaction, overutilization, disease introduction, or vandalism from
visitor use. Please refer to the final listing rule published on
September 5, 2012, in the Federal Register (77 FR 54434) for a complete
description of these threats.
Special management to protect the features essential to the
conservation of the species from the effects identified above may
include (but are not limited to) actively managing appropriate open
space areas, limiting disturbances to and within suitable habitats, and
evaluating the need for and potentially conducting restoration or
revegetation of areas inhabited by Arctostaphylos franciscana.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial data available to designate critical habitat.
We review available information pertaining to the habitat requirements
of the species. In accordance with the Act and its implementing
regulation at 50 CFR 424.12(e), we consider whether designating
additional areas--outside those currently occupied as well as those
occupied at the time of listing--are necessary to ensure the
conservation of the species. We are designating critical habitat in
areas within the geographical area occupied by the species at the time
of listing in 2012. We also are designating specific areas outside the
geographical area occupied by the species at the time of listing, that
were historically occupied, but are presently unoccupied, because we
have determined that such areas are essential for the conservation of
the species.
This section provides details of the criteria and process we used
to delineate the critical habitat for Arctostaphylos franciscana. The
areas designated as critical habitat within this rule are based largely
on habitat characteristics identified from the ``rediscovery site''
near Doyle Drive, the currently occupied transplantation site, and
historically occupied areas identified in voucher specimens and
historical records. We also used the Recovery Plan for Coastal Plants
of the Northern San Francisco Peninsula (Service 2003, pp. 1-322); the
Final Franciscan Manzanita Conservation Plan (Chasse et al. 2009, pp.
1-44); the Raven's Manzanita Recovery Plan (Service 1984, pp. 1-73),
which provides habitat characteristics of the historically co-occurring
species; and information received from peer reviewers and the public on
our proposed listing for A. franciscana (76 FR 55623; September 8,
2011). Due to the rapid development of the San Francisco peninsula and
limited historical information on plant location and distribution, it
is difficult to determine the exact range of the species. Given the
amount of remaining habitat available with the appropriate
characteristics, we looked at all areas within San Francisco County,
California, that met our criteria as potential habitat. Based on this
information, we are designating as critical habitat areas within the
geographical area currently occupied by A. franciscana (which is the
same as the geographical area occupied by the species at the time of
listing) and
[[Page 77304]]
unoccupied areas that are essential for the conservation of the
species. See the Distribution and Habitat section in the proposed
critical habitat rule for more information on the range of the species
(77 FR 54517; September 5, 2012).
Although a recovery plan for Arctostaphylos franciscana has not
been developed, the species is discussed along with the endangered A.
montana ssp. ravenii in the Recovery Plan for Coastal Plants of the
Northern San Francisco Peninsula (Service 2003). The recovery plan
calls for a three-part strategy in conserving A. montana ssp. ravenii,
as well as additional recommendations for establishment in areas
outside the Presidio at historic and other rock outcrop sites in
conjunction with A. franciscana (Service 2003, pp. 75-77). The strategy
includes: (1) Protecting the existing plant and surrounding habitat;
(2) increasing the number of independent populations throughout
suitable habitat within the Presidio; and (3) restoring the natural
ecological interactions of the species with its habitat, including
allowing gene flow with A. franciscana. As mentioned above, the
recovery plan also identifies establishing additional areas within rock
outcrops throughout suitable habitat along with populations of A.
franciscana. We believe that a recovery strategy for A. franciscana
would have many aspects similar to the recovery plan for A. montana
ssp. ravenii based on the two species being limited to one ``wild''
individual, their co-occurrence in similar habitat within the Presidio
and elsewhere at historical locations, and the seeming dependence of A.
montana ssp. ravenii on A. franciscana to produce viable seed and
maintain gene flow with A. franciscana in the absence of more than the
single individual or clones of A. montana ssp. ravenii. In order to
accomplish portions of this strategy, we have identified areas we
believe are essential to the conservation of A. franciscana through the
following criteria:
(1) Determine, in accordance with section 3(5)(A)(i) of the Act and
regulations at 50 CFR 424.12, the physical or biological habitat
features essential to the conservation of the species and which may
require special management considerations or protection, as explained
in the previous section.
(2) Identify multiple independent sites for A. franciscana. These
sites should be throughout the historic range of the species (generally
on the San Francisco peninsula north of Mount Davidson) within or near
rock outcrops of various origins but especially on ridges or slopes
within serpentine or greenstone formations along the Franciscan fault
zone between Potrero Hills and the Golden Gate (see Figure 1, above).
(3) In accordance with section 2(b) of the Act, select areas which
will conserve the ecosystem upon which the species depends. This
includes areas that contain the natural ecological interactions of the
species with its habitat or areas with additional management that may
be enhanced. The conservation of A. franciscana is dependent on several
factors including, but not limited to, selection of areas of sufficient
size and configuration to sustain natural ecosystem components,
functions, and processes (such as full sun exposure, summer fog,
natural fire and hydrologic regimes, intact mycorrhizal or edaphic
interactions); protection of existing substrate continuity and
structure; connectivity among groups of plants of this species within
geographic proximity to facilitate gene flow among the sites through
pollinator activity and seed dispersal; and sufficient adjacent
suitable habitat for vegetative reproduction and population expansion.
(4) In selecting areas to designate as critical habitat, consider
factors such as size, connectivity to other habitats, and rangewide
recovery considerations. We rely upon principles of conservation
biology, including: (a) Resistance and resiliency, to ensure sufficient
habitat is protected throughout the range of the species to support
population viability (e.g., demographic parameters); (b) Redundancy, to
ensure multiple viable populations are conserved throughout the
species' range; and (c) representation, to ensure the representative
genetic and life history of A. franciscana are conserved.
Methods
In order to identify the physical or biological features on the
ground based on our criteria outlined above, we used the following
methods to delineate the critical habitat:
(1) We compiled and reviewed all available information on
Arctostaphylos franciscana habitat and distribution from historic
voucher specimens, literature, and reports;
(2) We also compiled and reviewed all available information on A.
montana ssp. ravenii habitat and distribution from similar sources, as
these two species have similar habitat requirements and often occurred
together historically;
(3) We reviewed available information on rock outcrops, bedrock,
and areas identified as serpentine, greenstone, or of Franciscan
formation within the San Francisco peninsula and surrounding areas
south of Mount Davidson and north into Marin County to determine the
extent of these features on the landscape;
(4) We compiled species occurrence information including historic
record locations, the current occupied site within the Presidio, and
information on the ``rediscovery site'' near Doyle Drive;
(5) We then compiled all this information into a GIS database using
ESRI ArcMap 10.0; and
(6) We screen digitized and mapped the specific areas on which are
found those physical or biological features essential to the
conservation of the species or other areas determined to be essential
for the conservation of the species.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack physical or biological features for Arctostaphylos
franciscana. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps for of this final
rule have been excluded by text in the rule and are not designated as
critical habitat. Therefore, a Federal action involving these lands
will not trigger section 7 consultation with respect to critical
habitat and the requirement of no adverse modification unless the
specific action would affect the physical or biological features in the
adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public at http://www.regulations.gov at Docket No. FWS-R8-ES-2012-0067, on our Internet
site at http://www.fws.gov/sacramento/, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT,
above).
We are designating as critical habitat lands that we have
determined are occupied at the time of listing and contain sufficient
physical or biological features to support life-history processes
essential for the conservation of the
[[Page 77305]]
species, and lands outside of the geographical area occupied at the
time of listing that we have determined are essential for the
conservation of Arctostaphylos franciscana.
Units are designated based on sufficient elements of physical or
biological features being present to support Arctostaphylos
franciscana's life processes. Some units contain all of the identified
elements of physical or biological features and support multiple life
processes. Some segments contain only some elements of the physical or
biological features necessary to support A. franciscana's particular
use of that habitat.
Final Critical Habitat Designation
We are designating 12 units as critical habitat for Arctostaphylos
franciscana. The critical habitat areas described below constitute our
best assessment at this time of areas that meet the definition of
critical habitat. Those 12 units are: (1) Fort Point Unit, (2) Fort
Point Rock Unit, (3) World War II Memorial Unit, (4) Immigrant Point
Unit, (5) Inspiration Point Unit, (6) Corona Heights Unit, (7) Twin
Peaks Unit, (8) Mount Davidson Unit, (9) Diamond Heights Unit, (11)
Bayview Park Unit, (12) McLaren Park East Unit, and (13) McLaren Park
West Unit. Table 1 shows the occupancy status of each unit. The
approximate area of each critical habitat unit is shown in Table 2.
Table 1--Occupancy of Arctostaphylos franciscana by Designated Critical
Habitat Units
------------------------------------------------------------------------
Occupied at time Currently
Unit of listing? occupied?
------------------------------------------------------------------------
1. Fort Point................... No No.
2. Fort Point Rock.............. No Yes.
3. World War II Memorial........ No No.
4. Immigrant Point.............. No No.
5. Inspiration Point............ Yes Yes.
6. Corona Heights............... No No.
7. Twin Peaks................... No No.
8. Mount Davidson............... No No.
9. Diamond Heights.............. No No.
11. Bayview Park................ No No.
12. McLaren Park East........... No No.
13. McLaren Park West........... No No.
------------------------------------------------------------------------
Table 2--Designated Critical Habitat Units for Arctostaphylos
franciscana
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Land ownership
Critical habitat unit by type Acres (hectares)
------------------------------------------------------------------------
1. Fort Point................... Federal.......... 7.7 (3.1)
State............ 0
Local............ 0
Private.......... 0
2. Fort Point Rock.............. Federal.......... 21.6 (8.7)
State............ 0
Local............ 0
Private.......... 0
3A. World War II Memorial....... Federal.......... 0.8 (0.3)
State............ 0
Local............ 0
Private.......... 0
3B. World War II Memorial....... Federal.......... 1.1 (0.5)
State............ 0
Local............ 0
Private.......... 0
4A. Immigrant Point............. Federal.......... 0.4 (0.2)
State............ 0
Local............ 0
Private.......... 0
4B. Immigrant Point............. Federal.......... 1.1 (0.4)
State............ 0
Local............ 0
Private.......... 0
5A. Inspiration Point........... Federal.......... 11.8 (4.8)
State............ 0
Local............ 0
Private.......... 0
5B. Inspiration Point........... Federal.......... 2.1 (0.9)
State............ 0
Local............ 0
Private.......... 0
6. Corona Heights............... Federal.......... 0
State............ 0
Local............ 5.2 (2.1)
Private.......... 0
7. Twin Peaks................... Federal.......... 0
State............ 0
Local............ 42.2 (17.1)
Private.......... 1.6 (0.6)
8. Mount Davidson............... Federal.......... 0
State............ 0
Local............ 6.5 (2.6)
Private.......... 0.6 (0.3)
9A. Diamond Heights............. Federal.......... 0 (0)
State............ 0 (0)
Local............ 19.1 (7.7)
Private.......... 0
9B. Diamond Heights............. Federal.......... 0 (0)
State............ 0 (0)
Local............ 3.9 (1.6)
Private.......... 0 (0)
9C. Diamond Heights............. Federal.......... 0 (0)
State............ 0 (0)
Local............ 10.5 (4.3)
Private.......... 0.8 (0.3)
11. Bayview Park................ Federal.......... 0
State............ 0
Local............ 34.7 (14.0)
Private.......... 7.8 (3.1)
12A. McLaren Park East.......... Federal.......... 0 (0)
State............ 0 (0)
Local............ 13.4 (5.4)
Private.......... 0 (0)
12B. McLaren Park East.......... Federal.......... 0 (0)
State............ 0 (0)
Local............ 11.6 (4.7)
Private.......... 0 (0)
13. McLaren Park West........... Federal.......... 0 (0)
State............ 0 (0)
Local............ 25.7 (10.4)
Private.......... *0 (0)
---------------------------------------
Total....................... Federal.......... 46.6 (18.9)
State............ 0
Local............ 172.8 (69.9)
Private.......... 10.8 (4.3)
Total............ 230.2 (93.1)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
* Acreages are carried out to one decimal place to show small units.
Areas less than 0.1 ac (0.04 ha) are denoted as 0.
We present brief descriptions of the designated critical habitat
units for Arctostaphylos franciscana and the reasons why they meet the
definition of critical habitat, below. Acreage or hectare totals may
not sum due to rounding.
Unit 1: Fort Point
Unit 1 consists of 7.7 ac (3.1 ha) and is located within the
Presidio east of the Golden Gate Bridge and north of Doyle Dr. along
Long Ave. and Marine Dr. This unit is currently unoccupied. The unit is
within an area that experiences summer fog, and contains serpentine and
Franciscan Complex bedrock outcrops, soils derived from these
formations, and native maritime chaparral habitat. The unit represents
one of the northern-most areas identified for the species. We have
determined that the area is essential for the conservation of the
species, because it provides one of multiple independent sites for
Arctostaphylos franciscana and contains some of the last remaining
appropriate habitat within the area.
Unit 2: Fort Point Rock
Unit 2 consists of 21.6 ac (8.7 ha) and is located within the
Presidio west of the Golden Gate Bridge and west of Lincoln Blvd. The
unit extends from the Toll Plaza south to Kobbe Ave. This unit is
currently occupied, although it was not occupied at the time of
listing. The unit is within an area that experiences summer fog, and
contains serpentine and Franciscan Complex bedrock outcrops, soils
derived from these formations, and native maritime chaparral habitat
along the coastal
[[Page 77306]]
bluffs. The unit represents one of the northern-most areas identified
for the species. We have determined that the area is essential for the
conservation of the species, because it provides one of multiple
independent sites for Arctostaphylos franciscana and contains some of
the last remaining appropriate habitat within the area.
Unit 3: World War II Memorial
Unit 3 consists of a total of 1.9 ac (0.8 ha). The unit is located
within the Presidio at the intersection of Lincoln Blvd. and Kobbe Ave.
The unit is comprised of two subunits. Subunit 3A (0.8 ac (0.3 ha)) is
located west of Lincoln Blvd., and subunit 3B (1.1 ac (0.5 ha)) is
located east of Lincoln Blvd. This unit is currently unoccupied. The
unit is along the coastal bluffs within an area that experiences summer
fog, and contains serpentine and Franciscan Complex bedrock outcrops,
soils derived from these formations, and native maritime chaparral
habitat. We have determined that the area is essential for the
conservation of the species, because it provides for one of multiple
independent sites for Arctostaphylos franciscana and contains some of
the last remaining appropriate habitat within the area.
Unit 4: Immigrant Point
Unit 4 consists of a total of 1.5 ac (0.6 ha). The unit is located
within the Presidio along Washington Blvd. east of Lincoln Blvd. and
north of Compton Rd. The unit is comprised of two subunits. Subunit 4A
(0.4 ac (0.2 ha)) is located west of Washington Blvd., and subunit 4B
(1.1 ac (0.4 ha)) is located east of Washington Blvd. This unit is
currently unoccupied. The unit is located along the coastal bluffs
within an area that experiences summer fog, and contains serpentine and
Franciscan Complex bedrock outcrops, soils derived from these
formations, and native maritime chaparral habitat. We have determined
that the area is essential for the conservation of the species, because
it provides for one of multiple independent sites for Arctostaphylos
franciscana and contains some of the last remaining appropriate habitat
within the area.
Unit 5: Inspiration Point
Unit 5 consists of a total of 13.9 ac (5.7 ha). The unit is within
the Presidio and is located north of Pacific Ave. and east of Arguello
Blvd. The unit is comprised of two subunits, which are adjacent to each
other. Subunit 5A (11.8 ac (4.8 ha)) and subunit 5B (2.1 ac (0.9 ha))
are located east of Arguello Blvd., but the two areas are separated by
an access road. This unit is currently occupied and was occupied at the
time of listing. The unit contains the physical or biological features
essential to the conservation of the species. The unit is within an
area that experiences summer fog, and is located on sloping terrain
containing serpentine and Franciscan Complex bedrock outcrops, soils
derived from these formations, and native maritime chaparral habitat.
The physical and biological features essential to the conservation
of the species in this unit may require special management
considerations or protection to address threats from habitat loss,
degradation, or alteration due to development or other human
activities; competition from nonnative plants; small population size
and curtailment of the species' range; and various other human-induced
factors such as soil compaction, potential overutilization, disease, or
vandalism from visitor use. Please see the Special Management
Considerations or Protection section of this final rule for a
discussion of the threats to Arctostaphylos franciscana habitat and
potential management considerations.
Unit 6: Corona Heights
Unit 6 consists of 5.2 ac (2.1 ha) and is located northwest of
Castro and 17th Streets adjacent to Roosevelt and Museum Way. This unit
is currently unoccupied. The unit is within an area that experiences
summer fog, and is located on sloping terrain that contains Franciscan
Complex (greenstone) bedrock outcrops of chert or volcanic materials,
soils derived from these formations, and open grassland habitat. The
unit represents one of several areas identified for the species within
the Mount Davidson area. The units in this area would assist in
establishing populations of Arctostaphylos franciscana outside the
Presidio. As a result, we have determined that the area is essential
for the conservation of the species, because it provides for one of
multiple independent sites for A. franciscana and contains some of the
last remaining appropriate habitat within the area.
Unit 7: Twin Peaks
Unit 7 consists of 43.8 ac (17.7 ha) along the hilltop of Twin
Peaks along Twin Peaks Blvd. west of Market St. This unit is currently
unoccupied. The unit is within an area that experiences summer fog; is
located on sloping terrain; and contains Franciscan Complex
(greenstone) bedrock outcrops of chert or volcanic materials, soils
derived from these formations, and open grassland habitat. The unit
represents one of several areas identified for the species within the
Mount Davidson area. The units in this area would assist in
establishing populations of Arctostaphylos franciscana outside the
Presidio. As a result, we have determined that the area is essential
for the conservation of the species, because it provides for one of
multiple independent sites for A. franciscana and contains some of the
last remaining appropriate habitat within the area.
Unit 8: Mount Davidson
Unit 8 consists of 7.1 ac (2.9 ha) and is located on the eastern
slope of Mount Davidson near Myra Way and Molimo Dr. This unit is
currently unoccupied. The unit is within an area that experiences
summer fog, and is located on sloping terrain containing Franciscan
Complex (greenstone) bedrock outcrops of chert and sedimentary
materials, soils derived from these formations, and open grassland
habitat. Mount Davidson is the only known site still remaining that was
previously occupied by the species. The reestablishment of populations
of Arctostaphylos franciscana at this and surrounding units would
assist in establishing multiple populations of A. franciscana outside
the Presidio. As a result, we have determined that the area is
essential for the conservation of the species, because it provides for
one of multiple independent sites for A. franciscana and contains the
last remaining historic occurrence for the species.
Unit 9: Diamond Heights
Unit 9 consists of a total of 34.3 ac (13.9 ha) and is located near
Diamond Heights Blvd. south of Turquoise Way, and O'Shaughnessy Blvd.
This unit is comprised of three subunits. Subunit 9A (19.1 ac (7.7 ha))
is located near Diamond Heights Blvd. south of Turquoise Way. Subunit
9B (3.9 ac (1.6 ha)) is located east of O'Shaughnessy Blvd., and
subunit 9C (11.3 ac (4.6 ha)) is located west of O'Shaughnessy Blvd.
Unit 9 is currently unoccupied. The unit is within an area that
experiences summer fog; is located on sloping terrain; and contains
Franciscan Complex (greenstone) bedrock outcrops of chert, volcanic,
and sedimentary materials, as well as soils derived from these
formations and open grassland habitat. The unit represents one of
several areas identified for the species within the Mount Davidson
area. Mount Davidson is the only site still remaining that was known to
be previously occupied by the species. The units in this area would
assist in establishing populations of Arctostaphylos franciscana
outside the Presidio. The
[[Page 77307]]
additional subunits provide additional rock outcrop areas within the
matrix of natural land. As a result, we have determined that the area
is essential for the conservation of the species, because it provides
for one of multiple independent sites for A. franciscana and contains
some of the last remaining appropriate habitat within the area.
Unit 10: Bernal Heights
We have determined that the area we proposed at Bernal Heights
(14.9 ac (6.0 ha)), which is not occupied at the time of listing, is
highly degraded and does not meet our criteria for designating areas as
critical habitat. As a result, we have determined that this unit is not
essential for the conservation of the species, and we are not including
Unit 10 in the critical habitat designation.
Unit 11: Bayview Park
Unit 11 consists of 42.5 ac (17.1 ha) and is located at Bayview
Park west of Candlestick Park and east of U.S. Highway 101. This unit
is currently unoccupied. This unit is considered outside the range of
the species but still within the same Franciscan fault zone as historic
populations. The unit is within an area that experiences summer fog; is
located on sloping terrain; and contains Franciscan Complex
(greenstone) bedrock outcrops of chert, volcanic, and sedimentary
materials, as well as soils derived from these formations and open
grassland habitat. The unit represents one site identified for the
species outside the Presidio and Mount Davidson area. Due to the rapid
development of the San Francisco peninsula and limited historical
information on plant location and distribution, it is difficult to
determine the exact range of the species. Given the amount of remaining
habitat available with the appropriate characteristics, we looked at
all areas within San Francisco that met our criteria as potential
habitat. Including this unit would assist in establishing an additional
population of Arctostaphylos franciscana outside the Presidio and Mount
Davidson areas. As a result, we have determined that the area is
essential for the conservation of the species, because it provides for
one of multiple independent sites for A. franciscana and contains some
of the last remaining appropriate habitat for the species within the
area.
Unit 12: McLaren Park East
Unit 12 consists of a total of 25.0 ac (10.1 ha) and is located at
McLaren Park south of Mansell St. near Visitacion Ave. This unit is
comprised of two subunits. Subunit 12A (13.4 ac (5.4 ha)) is located
south of Mansell St. and west of Visitacion Ave. Subunit 12B (11.6 ac
(4.7 ha)) is located south of Mansell St. and east of Visitacion Ave.
This unit is currently unoccupied. The unit is within an area that
experiences summer fog and is located on sloping terrain. It contains
Franciscan Complex (greenstone) bedrock and serpentine outcrops, soils
derived from these formations, and open grassland habitat. This unit
will assist in establishing an additional population of Arctostaphylos
franciscana outside the Presidio and Mount Davidson areas. This unit
and Unit 13 (McLaren Park West) are located roughly midway between the
remaining appropriate habitat at Diamond Heights and Bayview Park and
thereby provide increased connectivity between these units. As a
result, we have determined that the area is essential for the
conservation of the species, because it provides for one of multiple
independent sites for A. franciscana, contains some of the last
remaining appropriate habitat within the area, and provides
connectivity between Unit 9 (Diamond Heights) and Unit 11 (Bayview
Park).
Unit 13: McLaren Park West
Unit 13 consists of 25.7 ac (10.4 ha) and is located at McLaren
Park between Geneva Ave. and Sunnydale Ave. This unit is currently
unoccupied. The unit is within an area that experiences summer fog; is
located on sloping terrain; and contains Franciscan Complex
(greenstone) bedrock outcrops of volcanic materials, soils derived from
these formations, and open grassland habitat. This unit will assist in
establishing additional populations of Arctostaphylos franciscana
outside the Presidio and Mount Davidson areas. This unit and Unit 12
(McLaren Park East) are located roughly midway between remaining
appropriate habitat at Diamond Heights and Bayview Park. As a result,
we have determined that the area is essential for the conservation of
the species, because it provides for one of multiple independent sites
for A. franciscana, contains some of the last remaining appropriate
habitat within the area, and provides connectivity between Unit 9
(Diamond Heights) and Unit 11 (Bayview Park).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory 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, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on Federal, State, tribal,
local, or private lands that require 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 of the Act) or that involve some other Federal action (such
as funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a
[[Page 77308]]
listed species and/or destroy or adversely modify critical habitat, we
provide reasonable and prudent alternatives to the project, if any are
identifiable, that would avoid the likelihood of jeopardy and/or
destruction or adverse modification of critical habitat. 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 the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Arctostaphylos franciscana.
As discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
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 may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for Arctostaphylos franciscana. These activities include,
but are not limited to:
(1) Actions that result in ground disturbance. Such activities
could include (but are not limited to) residential or commercial
development, off-highway vehicle activity, pipeline construction, new
road construction or widening, and existing road maintenance. These
activities potentially impact the habitat and PCEs of A. franciscana by
damaging, disturbing, and altering soil composition through direct
impacts, increased erosion, and increased nutrient content from
nitrogen deposition in urban areas (primarily from cars and trucks).
Additionally, changes in soil composition may lead to changes in the
vegetation composition, thereby changing the overall habitat type.
Actions that result in ground disturbance may also have a high risk for
introducing soilborne Phytophthora spp., especially through the
movement of infested soil brought in as fill or on vehicle tires.
(2) Actions that result in alteration of the hydrological regimes
typically associated with A. franciscana habitat. Such activities could
include residential or commercial development, which may increase
summer watering. These activities could alter natural plant populations
adapted to summer drought, disrupt mycorrhizal interactions, increase
disease, and promote establishment of nonnative vegetation.
(3) Actions that increase nutrient deposition to the point at which
nutrient-loving plants not adapted to serpentine or rocky outcrops
become established and compete with A. franciscana and adjacent
vegetation communities. Such activities could include (but are not
limited to) use of chemical fertilizers within the areas, increased
nitrogen deposition from atmospheric sources (vehicles, industry), and
unauthorized dumping.
(4) Actions that increase the likelihood of spread of disease from
Phytophthora spp. such activities include (but are not limited to) the
planting of Phytophthora-infested plant material on or adjacent to
critical habitat. This may include landscaping installed beyond
critical habitat units, especially uphill, or nursery stock plantings
within the critical habitat (potentially including A. franciscana
seedlings used for restoration plantings).
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed INRMP
within the critical habitat designation for Arctostaphylos franciscana.
Therefore, we are not exempting lands from this
[[Page 77309]]
final designation of critical habitat for Arctostaphylos franciscana
pursuant to section 4(a)(3)(B)(i) of the Act.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to 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. The statute on its face, as well as the legislative history,
are clear that the Secretary has broad discretion regarding which
factor(s) to use and how much weight to give to any factor in making
that determination.
Under section 4(b)(2) of the Act, the Secretary may exclude an area
from designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared DEA of the proposed critical
habitat designation and related factors (RTI International 2013a). The
DEA, dated March 2013, was made available for public review from June
28, 2013, through July 29, 2013 (78 FR 38897). Following the close of
the comment period, a FEA (November 2013) of the potential economic
effects of the designation was developed, taking into consideration the
public comments and any new information (RTI International 2013b).
The intent of the FEA is to quantify the economic impacts of all
potential conservation efforts for Arctostaphylos franciscana; some of
these costs will likely be incurred regardless of whether we designate
critical habitat (baseline). The economic impact of the final critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (e.g., under
the Federal listing and other Federal, State, and local regulations).
The baseline, therefore, represents the costs incurred regardless of
whether or not critical habitat is designated. The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental impacts and associated conservation efforts are those
not expected to occur absent the designation of critical habitat for
the species. In other words, the incremental costs are those
attributable solely to the designation of critical habitat above and
beyond the baseline costs; these are the costs we consider in the final
designation of critical habitat. The analysis looks retrospectively at
baseline impacts incurred since the species was listed, and forecasts
both baseline and incremental impacts likely to occur with the
designation of critical habitat.
The FEA 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 FEA 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. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks retrospectively at costs
that have been incurred since 2012 (year of the species' listing) (77
FR 54434), and considers those costs that may occur in the 20 years
following the designation of critical habitat, which was determined to
be the appropriate period for analysis because limited planning
information was available for most activities to forecast activity
levels for projects beyond a 20-year timeframe. The FEA quantifies
economic impacts of Arctostaphylos franciscana conservation efforts
associated with the following categories of activity: National Park and
Presidio Trust management and habitat restoration activities; road
maintenance and construction; broadcast facility maintenance and
construction; trail maintenance; and species reintroduction.
The FEA estimates the total incremental impacts over the next 20
years (2013 to 2032) to activities in areas designated as critical
habitat to be approximately $19,617 ($981 annualized) in present-value
terms applying a 7 percent discount rate (RTI International 2013b, p.
ES-2); the total undiscounted incremental costs are approximately
$31,435. The primary incremental economic impacts are administrative
costs associated with section 7 consultations with the National Park
Service (NPS) and the Presidio Trust on their activities within the
three relevant unoccupied critical habitat units (Units 1, 3, and 4).
Administrative costs associated with section 7 consultations on a
variety of NPS and Presidio Trust activities (including NPS and
Presidio Trust management plans, soil remediation, and unspecified
activities) on Federal lands in unoccupied critical habitat Units 1, 3,
and 4 account for most of the forecast incremental impacts (RTI
International 2013b, ES-3). The largest incremental economic impacts
are associated with informal section 7 consultations with NPS and the
Presidio Trust for unspecified activities within Units 1-5; these
unspecified consultations are expected to total $24,248 (undiscounted)
over the 20-year period distributed evenly among all designated units
within the Presidio. Section 7 consultations with NPS and the Presidio
Trust for soil remediation activities within Unit 1 are expected to
total $4,041 over the 20-year period (all soil remediation activities
are anticipated to occur within the first year and, therefore, are not
discounted).
Federally funded trail maintenance on SFRPD lands within unoccupied
critical habitat Units 12 and 13 was conservatively included in the
analysis due to the potential that SFRPD might apply within the next 20
years for Federal grant money to update trails in these units (RTI
International 2013b, p. 3-7). These consultation costs are expected to
total $2,690 (undiscounted) over the next 20 years distributed evenly
between the two units. The SFRPD is estimated to incur undiscounted
costs of approximately $641 from these consultations.
[[Page 77310]]
The smallest incremental economic impact is associated with the
reinitiation of section 7 consultation with NPS and the Presidio Trust
for their management plans within critical habitat Units 1 through 5.
This consultation is expected to total $114 over the 20-year period,
and is distributed evenly among the five units (the reinitiation of
consultation on the NPS and Presidio Trust management plans is
anticipated to occur within the first year and, therefore, is not
discounted).
With regard to other activities on non-Federal lands, the potential
for Federal nexus is very low. Therefore, no consultations were
estimated for miscellaneous activities on non-Federal land within Units
6-9 and 11. Thus, there are no anticipated incremental economic impacts
associated with the designation of critical habitat within Units 6-9
and 11. The only other consultations that may be anticipated on non-
Federal lands include reintroduction of A. franciscana into areas where
other endangered species, such as the mission blue butterfly, are
present. Reintroduction consultations are likely to be intra-Service,
and costs are likely to be minimal and administrative in nature.
Furthermore, the costs would be considered baseline costs.
Regarding road maintenance and construction, the California
Department of Transportation indicated in personal communication that
any projects on the roads adjacent to the units would not likely affect
A. franciscana or its critical habitat; additionally, no projects are
anticipated (RTI International 2013b, pp. 3-1, 3-6). Similarly, no
maintenance and construction projects related to radio and broadcast
towers are expected to affect designated critical habitat (RTI
International 2013b, pp. 3-1, 3-6).
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting her discretion to exclude any areas from this
designation of critical habitat for Arctostaphylos franciscana based on
economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Sacramento Fish and Wildlife Office (see ADDRESSES) or
by downloading from the Internet at http://www.regulations.gov under
Docket No. FWS-R8-ES-2012-0067.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider the impact on
national security of specifying any particular area as critical
habitat. In preparing this final rule, we have determined that the
lands within the designation of critical habitat for Arctostaphylos
franciscana are not owned or managed by the Department of Defense or
Department of Homeland Security, and, therefore, we anticipate no
impact on national security. Consequently, the Secretary is not
exerting her discretion to exclude any areas from this final
designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
We reviewed the Presidio Trust Management Plan and the Vegetation
Management Plan (Presidio Trust 2002, entire; GGNRA and Presidio Trust
2002, entire). Neither of these documents included Arctostaphylos
franciscana as a managed species or management actions for serpentine
chaparral. We also reviewed the conservation plan for A. franciscana
(Chasse et al. 2009, entire). This document provides information on the
transplantation of the mother plant and propagation of cuttings, but it
did not provide information on the physical features or the protection
of habitat. The memorandum of agreement mentions that the agencies
agree to collaborate on and implement the terms of the conservation
plan and any necessary adaptive management changes to the conservation
plan as the primary mechanism to promote the survival of A. franciscana
(Caltrans et al. 2009, entire).
In preparing this final rule, we also examined the Presidio
Environmental Remediation Program (Presidio Trust 2012); the Presidio
Trails and Bikeways Master Plan (NPS and Presidio Trust 2003, entire);
the Final Environmental Impact Statement/Fire Management Plan Golden
Gate National Recreation Area (GGNRA 2006, entire); and the Significant
Natural Resource Areas Management Plan Environmental Impact Report
(SNRAMP) (SFRPD 2006; San Francisco Planning Department 2011). We do
not think they are appropriate for a basis for exclusion for the
following reasons:
(1) The Presidio Trust Environmental Remediation Program cleans up
waste sites from when the Presidio of San Francisco was a U.S. Army
post. The environmental documents do not include Arctostaphylos
franciscana (Presidio Trust 2012).
(2) The Presidio Trails and Bikeways Master Plan (NPS and Presidio
Trust 2003) does not include Arctostaphylos franciscana as a managed
species. It also does not provide for the conservation of the species.
(3) The Final Environmental Impact Statement/Fire Management Plan
Golden Gate National Recreation Area (GGNRA 2006) does not include
Arctostaphylos franciscana as a managed species. It also does not
provide site-specificity for the conservation of the species.
(4) The SFRPD's Significant Natural Resource Areas Management Plan
Environmental Impact Report has not been finalized. Although the SNRAMP
(SFRPD 2006) discusses the reintroduction of Arctostaphylos franciscana
to Mount Davidson, the Draft Environmental Impact Report (EIR) for the
Significant Natural Resource Areas Management Plan Project does not
include Arctostaphylos franciscana as a managed species (San Francisco
Planning Department 2011).
We have determined that there are currently no habitat conservation
plans for Arctostaphylos franciscana and the final designation does not
include any tribal lands or trust resources. We anticipate no impact on
tribal lands, partnerships, or HCPs from this critical habitat
designation. As noted in the response to comments by the Presidio
Trust, GGNRA, and SFRPD, we do not expect critical habitat designation
to negatively affect management of Presidio lands for other listed
species, nor do we expect designation to negatively impact management
of SFPRD lands under the SNAMP. Accordingly, the Secretary is not
exercising her discretion to exclude any areas from this final
designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and
[[Page 77311]]
Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of an agency certifies the rule will not have a significant
economic impact on a substantial number of small entities. The SBREFA
amended the RFA 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 Arctostaphylos franciscana 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; as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts on these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the critical habitat designation, but the per-entity
economic impact is not significant, the Service may certify. Likewise,
if the per-entity economic impact is likely to be significant, but the
number of affected entities is not substantial, the Service may also
certify.
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the designation of
critical habitat for Arctostaphylos franciscana. The analysis is based
on the estimated impacts associated with the rulemaking as described in
chapters 3 and 4 of the FEA and evaluates the potential for economic
impacts related to: (1) NPS and Presidio Trust management and habitat
restoration activities; (2) NPS and Presidio Trust soil remediation
activities; (3) road maintenance and construction activities; (4)
broadcast facility maintenance and construction activities; and (5)
other activities, such as SFPRD trail maintenance and species
reintroduction. The Presidio Trust, National Park Service, and the
SFRPD are not small businesses. The Presidio Trust and the National
Park Service are required to consult with us for impacts to critical
habitat associated with management and habitat restoration activities;
NPS and Presidio Trust soil remediation activities; road maintenance
and construction activities; broadcast facility maintenance and
construction activities; and reintroduction activities. Because there
is no Federal nexus associated with SFRPD-managed lands, SFRPD is not
required to consult with our office for impacts to critical habitat
associated with their operations, provided they are not receiving
Federal funds or requiring Federal permits. Administrative costs of
consultations on NPS and Presidio Trust management and habitat
restoration activities, and soil remediation, are expected to be borne
by us, the NPS, and the Presidio Trust. Therefore, we expect no
incremental impacts to small entities.
Because the Service, Presidio Trust, National Park Service, and the
SFRPD are the only entities with expected direct compliance costs and
are not considered small entities, this rule will not result in a
significant impact on a substantial number of small entities.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the Executive Orders'
regulatory analysis requirements, can take into consideration impacts
to both directly and indirectly impacted entities, where practicable
and reasonable.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some
[[Page 77312]]
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by critical habitat designation. In areas where
the species is present, Federal agencies are required to consult with
us under section 7 of the Act on activities they authorize, fund, or
carry out that may affect critical habitat. The designation of critical
habitat could trigger the requirement to reinitiate consultation for
ongoing Federal activities and may result in an additional economic
impact to small entities if the ongoing Federal activities were for
small entities that required Federal authorization for some action (see
Application of the ``Adverse Modification'' Standard section).
In summary, we considered whether this designation will result in a
significant economic effect on a substantial number of small entities.
Based on the above reasoning and currently available information, we
concluded that this rule will not result in a significant economic
impact on a substantial number of small entities. Therefore, we are
certifying that the designation of critical habitat for Arctostaphylos
franciscana will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis determined that
Arctostaphylos franciscana critical habitat will have no effect on any
aspect of energy supply or distribution. Therefore, the economic
analysis finds that none of these criteria is relevant to this
analysis. Thus, based on information in the economic analysis, energy-
related impacts associated with A. franciscana conservation activities
within critical habitat are not expected. As such, the designation of
critical habitat is not expected to significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, 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 the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the designation of critical habitat
imposes no obligations on State or local governments. The lands being
designated are either under the jurisdiction of the National Park
Service, the Presidio Trust, or the City and County of San Francisco.
None of these government entities fits the definition of ``small
governmental jurisdiction.'' Therefore, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Arctostaphylos franciscana in a takings
implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. The designation of
critical habitat for A. franciscana includes a total of approximately
10.8 ac (4.3 ha) of private lands. Although private parties that
receive Federal funding, assistance, or require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Based on the best available
information, the takings implications assessment concludes that this
designation of critical habitat for A. franciscana does not pose
significant takings implications.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this 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, this critical habitat designation with
appropriate State resource agencies in
[[Page 77313]]
California. We did not receive comments from State agencies.
From a Federalism perspective, the designation of critical habitat
directly affects only the responsibilities of Federal agencies. The Act
imposes no other duties with respect to critical habitat, either for
States and local governments, or for anyone else. As a result, the rule
does not have substantial direct effects either on the States, or on
the relationship between the national government and the States, or on
the distribution of powers and responsibilities among the various
levels of government. The designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical and biological features of the habitat necessary to the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist these local governments in
long-range planning (because these local governments no longer have to
wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) will be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 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 applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the rule identifies the elements of physical or biological
features essential to the conservation of Arctostaphylos franciscana.
The designated areas of critical habitat are presented on maps, and the
rule provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (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 position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands in this critical habitat designation. Therefore, we have not been
involved in any government-to-government communications with tribal
entities regarding critical habitat for Arctostaphylos franciscana.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov, at Docket No. FWS-R8-ES-2012-
0067, and upon request from the Sacramento Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Sacramento Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
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; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.12(h) by revising the entry for ``Arctostaphylos
franciscana'' under FLOWERING PLANTS in the List of Endangered and
Threatened Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
[[Page 77314]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Arctostaphylos franciscana....... Franciscan manzanita U.S.A. (CA)........ Ericaceae.......... E 809 17.96(a) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96(a) by adding the family Ericaceae and an entry for
``Arctostaphylos franciscana (Franciscan manzanita)'' in alphabetical
order to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Ericaceae: Arctostaphylos franciscana (Franciscan manzanita)
(1) Critical habitat units are depicted for San Francisco County,
California, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
Arctostaphylos franciscana consist of four components:
(i) Areas on or near bedrock outcrops often associated with ridges
of serpentine or greenstone, mixed Franciscan rocks, or soils derived
from these parent materials.
(ii) Areas having soils originating from parent materials
identified in paragraph (2)(i) of this entry that are thin, have
limited nutrient content or availability, or have large concentrations
of heavy metals.
(iii) Areas within a vegetation community consisting of a mosaic of
coastal scrub, serpentine maritime chaparral, or serpentine grassland
as characterized as having a vegetation structure that is open, barren,
or sparse with minimal overstory or understory of trees, shrubs, or
plants, and that contain and exhibit a healthy fungal mycorrhizae
component.
(iv) Areas that are influenced by summer fog, which limits daily
and seasonal temperature ranges, provides moisture to limit drought
stress, and increases humidity.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
January 21, 2014.
(4) Critical habitat map units. Data layers defining map units were
created on a base of the Natural Resource Conservation Service National
Agriculture Imagery Program (NAIP 2010), and critical habitat was then
mapped using North American Datum (NAD) 83, Universal Transverse
Mercator Zone 10N coordinates. The maps in this entry, as modified by
any accompanying regulatory text, establish the boundaries of the
critical habitat designation.
(5) The coordinates for these maps are available on the Internet at
http://www.regulations.gov at Docket No. FWS-R8-ES-2012-0067, at http://www.fws.gov/sacramento/, or at the Sacramento Fish and Wildlife
Office. Field office location information may be obtained at the
Service regional offices, the addresses of which are at 50 CFR 2.2.
[[Page 77315]]
(6) The index map of critical habitat units for Arctostaphylos
franciscana (Franciscan manzanita) in San Francisco County, California,
follows:
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[GRAPHIC] [TIFF OMITTED] TR20DE13.007
[[Page 77316]]
(7) Unit 1: Fort Point, San Francisco County, California. Map of
Unit 1 and Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.008
[[Page 77317]]
(8) Unit 2: Fort Point Rock, San Francisco County, California. Map
of Unit 2 is provided at paragraph (7) of this entry.
(9) Unit 3: World War II Memorial, San Francisco, California. Map
of Unit 3 and Unit 4 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.009
[[Page 77318]]
(10) Unit 4: Immigrant Point, San Francisco County, California. Map
of Unit 4 is provided at paragraph (9) of this entry.
(11) Unit 5: Inspiration Point, San Francisco, California. Map of
Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.010
[[Page 77319]]
(12) Unit 6: Corona Heights, San Francisco County, California. Map
of Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.011
[[Page 77320]]
(13) Unit 7: Twin Peaks, San Francisco, California. Map of Unit 7
follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.012
[[Page 77321]]
(14) Unit 8: Mount Davidson, San Francisco County, California. Map
of Unit 8 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.013
[[Page 77322]]
(15) Unit 9: Diamond Heights, San Francisco, California. Map of
Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.014
[[Page 77323]]
(16) Unit 11: Bayview Park, San Francisco County, California. Map
of Unit 11 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.015
[[Page 77324]]
(17) Unit 12: McLaren Park East, San Francisco County, California.
Map of Unit 12 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.016
[[Page 77325]]
(18) Unit 13: McLaren Park West, San Francisco County, California.
Map of Unit 13 follows:
[GRAPHIC] [TIFF OMITTED] TR20DE13.017
* * * * *
Dated: December 12, 2013.
Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-30165 Filed 12-19-13; 8:45 am]
BILLING CODE 4310-55-C