[Federal Register: February 8, 1999 (Volume 64, Number 25)]

[Rules and Regulations]               

[Page 5957-5963]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]





Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC88


Endangered and Threatened Wildlife and Plants; Determination of 

Whether Designation of Critical Habitat for the Coastal California 

Gnatcatcher is Prudent

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of determination.


SUMMARY: We, the U.S. Fish and Wildlife Service, have reconsidered our 

prudency finding for designating critical habitat for the coastal 

California gnatcatcher (Polioptila californica californica). We listed 

the coastal California gnatcatcher as a threatened species under the 

Endangered Species Act of 1973, as amended (Act) on March 30, 1993. At 

that time, we determined that designation of critical habitat was not 

prudent because designation would not benefit the coastal California 

gnatcatcher and would increase the degree of threat to the species. On 

May 21, 1997, the United States Court of Appeals for the Ninth Circuit 

issued an opinion that required us to issue a new decision regarding 

the prudency of designating critical habitat for the coastal California 

gnatcatcher. This notice of determination responds to that court order.

DATES: We made the finding announced in this document on January 21, 


ADDRESSES: The complete file for this prudency reconsideration is 

available for inspection, by appointment, during normal business hours 

at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife 

Office, 2730 Loker Avenue West, Carlsbad, California 92008.

FOR FURTHER INFORMATION CONTACT: Ken S. Berg, Field Supervisor, at the 

above address (telephone: 760/431-9440; facsimile 760/431-9624).



    We listed the coastal California gnatcatcher (Polioptila 

californica californica) (gnatcatcher) as a threatened species under 

the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 

seq.) on March 30, 1993 (58 FR 16742). This small, insectivorous 

songbird typically occurs in several distinctive subassociations of the 

coastal sage scrub plant community. Coastal sage scrub vegetation is 

composed of relatively low-growing, dry-season deciduous, and succulent 

plants. Characteristic plants of this community include coastal 

sagebrush (Artemisia californica), various species of sage (Salvia 

spp.), California buckwheat (Eriogonum fasciculatum), lemonadeberry 

(Rhus integrifolia), California encelia (Encelia californica), prickly 

pear and cholla cactus (Opuntia spp.), and various species of 

Haplopappus. The gnatcatcher exhibits a strong affinity to coastal sage 

scrub vegetation dominated by coastal sagebrush, although in some 

portions of its range (e.g., western Riverside County) other plant 

species may be more abundant. The species occurs below about 912 meters 

(m) (3,000 feet (ft)) in elevation. The species remains

[[Page 5958]]

threatened by habitat loss and fragmentation resulting from urban and 

agricultural development, and the synergistic effects of cowbird 

parasitism and predation (58 FR 16742).

    The precarious status of the gnatcatcher and the importance of 

habitat protection are well known to the general public and to land 

planning agencies. We are working with Federal, State, and local 

agencies and private landowners throughout the historic range of the 

gnatcatcher to implement or develop conservation plans for this species 

and the large array of other listed or sensitive species also found in 

its coastal sage scrub habitats.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 

specific areas within the geographical area occupied by a species, at 

the time it is listed in accordance with the Act, on which are found 

those physical or biological features (I) essential to the conservation 

of the species and (II) that may require special management 

considerations or protection; and, (ii) specific areas outside the 

geographical area occupied by a species at the time it was listed, upon 

a determination that such areas are essential for the conservation of 

the species. ``Conservation'' means the use of all methods and 

procedures needed to bring the species to the point at which listing 

under the Act is no longer necessary.

    Section 4(a)(3) of the Act, as amended, and its implementing 

regulations (50 CFR 424.12) require that, to the maximum extent prudent 

and determinable, the Secretary designate critical habitat at the time 

a species is determined to be endangered or threatened. According to 

our regulations (50 CFR 424.12(a)(1)), designation of critical habitat 

is not prudent when one or both of the following situations exist--(1) 

The species is threatened by taking or other human activity, and 

identification of critical habitat can be expected to increase the 

degree of threat to the species, or (2) such designation of critical 

habitat would not be beneficial to the species.

    In general, critical habitat designation contributes to species 

conservation primarily by highlighting habitat areas in need of special 

management considerations or protection, and by describing the features 

within those areas that are essential to the conservation of the 

species. Critical habitat designation may provide additional protection 

under section 7 of the Act with regard to activities that are funded, 

authorized, or carried out by a Federal agency on either Federal or 

non-Federal land. Section 7(a)(2) of the Act requires Federal agencies, 

in consultation with us, to ensure that any action they carry out, 

fund, or authorize does not jeopardize the continued existence of a 

federally listed species or result in the destruction or adverse 

modification of designated critical habitat. This requirement of 

Federal agencies is the only mandatory legal consequence of a critical 

habitat designation. We refer to areas where a Federal agency may be 

involved as having a ``Federal nexus.''

    Regulations in 50 CFR part 402 define ``jeopardize the continued 

existence of'' and ``destruction or adverse modification of'' in 

similar terms. To jeopardize the continued existence of a species means 

to engage in an action ``that reasonably would be expected to reduce 

appreciably the likelihood of both the survival and recovery of a 

listed species.'' Destruction or adverse modification of habitat means 

an ``alteration that appreciably diminishes the value of critical 

habitat for both the survival and recovery of a listed species.'' 

Common to both definitions is an appreciable detrimental effect on both 

the survival and recovery of a listed species. Thus, actions that would 

adversely modify critical habitat generally also jeopardize the 

continued existence of the species.

    At the time of the listing, we concluded that designation of 

critical habitat for the gnatcatcher was not prudent because such 

designation would not benefit the species and would make the species 

more vulnerable to activities prohibited under section 9 of the Act. We 

were aware of several instances of apparently intentional habitat 

destruction that had occurred during the listing process. In addition, 

most land occupied by the gnatcatcher was in private ownership and a 

designation of critical habitat was not believed to be of benefit 

because of a lack of a Federal nexus.

    On May 21, 1997, the United States Court of Appeals for the Ninth 

Circuit (Court), issued an opinion (No. 95-56075; D.C. No. CV-93-999-

LHM) that required us to issue a new decision regarding the prudency of 

determining critical habitat for the gnatcatcher. In this opinion, the 

Court held that the ``increased threat'' criterion in the regulations 

may justify a not prudent finding only when we have weighed the 

benefits of designation against the risks of designation. Secondly, 

with respect to the ``not beneficial'' criterion explicit in the 

regulations, the Court ruled that our conclusion that designation of 

critical habitat was not prudent because it would fail to control the 

majority of land-use activities within critical habitat was 

inconsistent with Congressional intent that the imprudence exception to 

designation should apply ``only in rare circumstances.'' The Court 

noted that a substantial portion of gnatcatcher habitat would be 

subject to a future nexus sufficient to trigger section 7 consultation 

requirements regarding critical habitat. Third, the Court determined 

that our conclusion that designation of critical habitat would be less 

beneficial to the species than another type of protection (i.e., State 

of California Natural Community Conservation Planning efforts) did not 

absolve us from the requirement to designate critical habitat. The 

Court was also critical of our lack of specificity in our analysis.

Prudency Redetermination Process

    We have reevaluated our previous not prudent finding regarding 

critical habitat designation for the gnatcatcher as instructed by the 

Court. Initially, we inventoried all lands within the known range of 

the gnatcatcher containing coastal sage scrub habitats. These lands 

included coastal and inland areas--(1) that may support sage scrub or 

similar habitat within San Diego, Orange, Los Angeles, Riverside, San 

Bernardino, and Ventura counties, California, and (2) that are below 

912 m (3,000 ft) in elevation (the approximate maximum elevation 

occupied by gnatcatchers). Once we defined the study area, we 

categorized lands by ownership within each County using Geographic 

Information System (GIS) theme coverages, and estimated approximate 

acreages for each category. We used Federal and non-Federal (i.e., 

Tribal, local/State jurisdiction, and private) land ownership 

categories for the purposes of this prudency determination. We also 

considered the likelihood of a Federal nexus through land ownership, 

project funding or activity jurisdiction (Table 1).

    We considered all Federal and Tribal trust lands to have a Federal 

nexus. Because of its Tribal trust responsibilities, the Bureau of 

Indian Affairs (BIA) represents the Federal nexus on Tribal trust 

lands; the BIA does not represent a Federal nexus on Tribal fee-owned 

land. We evaluated State, local government, and private lands that 

contain gnatcatcher habitat for a potential Federal nexus. We expect 

some projects on State, local government, or private lands in Orange, 

San Diego and Ventura counties to have a Federal nexus.

[[Page 5959]]

   Table 1.--Geographic Distribution, Ownership, and Size of Areas Evaluated in the Critical Habitat Prudency Redetermination for the Coastal California



                                                                                                                                     Gnatcatcher habitat

                                                                                                                                        with a Federal

                                                                    Total area within                           Gnatcatcher habitat      nexus where

                   Land ownership and county                      gnatcatcher study area  Gnatcatcher habitat   with federal nexus   critical habitat is

                                                                     hectares (acres)       hectares (acres)   hectares (acres) <SUP>(b)    determined to be

                                                                                                  <SUP>(a)                                  prudent hectares




  Los Angeles..................................................         186,004(459,625)       11,470(28,343)        11,470(28,343)       11,470(28,343)

  Orange.......................................................           26,948(66,590)           991(2,448)            991(2,448)           991(2,448)

  Riverside....................................................          88,072(217,631)        5,616(13,877)         5,616(13,877)        5,616(13,877)

  San Bernardino...............................................           22,890(56,562)         1,256(3,104)          1,256(3,104)         1,256(3,104)

  San Diego....................................................         178,285(440,550)       24,650(60,911)        24,650(60,911)       24,650(60,911)

  Ventura......................................................          77,287(190,980)        4,381(10,825)         4,381(10,825)        4,381(10,825)


      Total Federal............................................       579,486(1,431,938)      48,364(119,508)       48,364(119,508)      48,364(119,508)


  Los Angeles..................................................       466,149(1,151,873)      53,058(131,108)               54(133)                    0

  Orange.......................................................         178,040(439,944)       23,572(58,247)      <SUP>(d)8,428(20,826)           473(1,169)

  Riverside....................................................         380,789(940,946)      62,248(153,817)         <SUP>(d)750(1,854)              83(205)

  San Bernardino...............................................         128,953(318,649)       15,697(38,789)                  <SUP>(c)0                    0

  San Diego....................................................       510,191(1,260,706)     673,684(167,250)     <SUP>(d)32,627(80,622)         1,095(2,706)

  Ventura......................................................         221,167(546,514)      79,070(195,385)           <SUP>(d)243(600)             243(600)


      Total Non-Federal........................................     1,885,289(4,658,632)     301,328(744,596)       42,102(104,035)         1,894(4,680)


      Grand Totals.............................................     2,464,775(6,090,570)     349,691(864,104)       90,465(223,543)      50,257(124,188)


<SUP>(a)Total amount of coastal sage scrub habitats within designated category.

<SUP>(b)Extent of habitat where a Federal nexus exists.

<SUP>(c)There are no known proposed projects or likely future activities with an established Federal nexus on lands within category.

<SUP>(d)See text for individual Federal project action areas contributing to totals; action areas in these categories may include small amounts of State and

  local lands.

    Of the approximately 2,464,775 hectares (ha) (6,090,570 acres (ac)) 

of land within the study area, 77 percent is non-Federal land and 23 

percent is Federal (Table 1). The GIS-based analysis of the study area 

landscape further revealed that only about 349,691 ha (864,104 ac) or 

14 percent of these lands support sage scrub habitat, with the majority 

of the habitat occurring on privately or federally owned lands (Table 

1). This estimate of habitat availability is more precise than our 

previous efforts and may differ with some published estimates.

    We followed existing statutes and regulations, the Court order, and 

our policy, to identify those lands for which a designation of critical 

habitat might be prudent. In general, we carried out the analytical 

steps for determining prudency sequentially--(1) we determined whether 

Federal lands were involved, (2) if lands were non-Federal, we 

determined whether a Federal nexus existed, (3) we determined whether 

any threats associated with designation as critical habitat of Federal 

lands and those non-Federal lands having a Federal nexus outweigh the 

benefits of such designation, and (4) we determined whether any threats 

associated with designation of non-Federal lands that lack a Federal 

nexus outweigh the benefits of such designation.

    The potential threats associated with designation include an 

increased likelihood of intentional acts of vandalism due to widespread 

public misunderstanding of critical habitat. The benefits of 

designating critical habitat include the section 7 consultation benefit 

and the benefit of highlighting areas needing special management 

considerations or protections. We describe several instances of 

vandalism and intentional destruction of endangered species habitat in 

the ``Prudency Finding'' section of this notice.

    In addition to determining whether designation of an area as 

critical habitat is prudent, we must also evaluate, in accordance with 

section 3(5)(A) of the Act, whether the area is essential to the 

conservation of the species and whether the area may require special 

management considerations or protection before designating the area as 

critical habitat. Section 4(b)(2) of the Act requires us to evaluate 

economic and other impacts, and exclude any area from the designation 

if the benefits of excluding the area outweigh the benefits of 

including the area. However, we can not exclude an area if the 

exclusion would result in the extinction of the species. These 

additional evaluations required to designate critical habitat are not a 

part of the prudency determination ordered by the Court, and, for the 

most part, have been deferred consistent with the current listing 

priority guidance published on May 8, 1998 (63 FR 10931).

Prudency Finding

    The only regulatory impact of a critical habitat designation is 

through the consultation provisions of section 7. Section 7 applies 

only to activities having a Federal nexus, not to activities that are 

exclusively State or private. Thus, the existence or lack of a Federal 

nexus is a key consideration in determining whether designating 

critical habitat is prudent. A Federal nexus exists when a Federal 

agency carries out, funds, or authorizes an activity or project on 

Federal or non-Federal lands. As we previously stated, the designation 

of non-Federal lands that lack a Federal nexus may not be prudent 

because the limited benefit may be outweighed by the threat of 

destruction of these areas. On the other hand, the designation of non-

Federal lands where a Federal nexus exists or may exist in the future 

could prove to be beneficial to the species. However, even for non-

Federal lands where there may be a future Federal nexus, we must weigh 

the benefits of designation as

[[Page 5960]]

critical habitat against any threat associated with designation. We 

discuss our prudency findings, arranged by land ownership, below.

    Tribal Lands. Tribal lands include Tribal fee-owned and Tribal 

trust lands. Tribal fee-owned lands are treated as private lands and 

thus have no inherent Federal nexus. However, activities on such lands 

are subject to section 7 consultation if a Federal action is involved. 

Tribal trust lands have a Federal nexus in light of the trust 

responsibility of the BIA. However, given the extremely small 

proportion of coastal sage scrub habitat on Tribal lands (2 percent of 

the 349,691 ha (864,104 ac) of total existing habitat) (Table 1), and 

because no significant gnatcatcher populations are known to occur on 

Tribal lands, we conclude that such lands are not essential to the 

conservation of the species and do not meet the definition of critical 


    Federal Lands. Federal lands are generally those administered by 

the Department of Defense (DOD) (including the Army Corps of Engineers 

(COE), Department of Navy, Marine Corps, and Air Force), Bureau of Land 

Management (BLM), Federal Aviation Administration (FAA), Forest 

Service, National Park Service, Fish and Wildlife Service, and Bureau 

of Reclamation. For convenience, we included Tribal trust lands in the 

Federal lands category in Table 1 due to the inherent BIA nexus; 

however, for the reasons stated above in the discussion under ``Tribal 

Lands,'' we conclude that Tribal trust lands are not essential to the 

conservation of the species and do not meet the definition of critical 

habitat. Approximately 579,486 ha (1,431,938 ac) of land within the 

study area are in this Federal land category. Of this total, an 

estimated 48,363 ha (119,508 ac), or 8 percent, support sage scrub 

habitat (Table 1). We have determined that it is prudent to designate 

critical habitat for the gnatcatcher on all Federal lands (not 

including Tribal trust lands) containing coastal sage scrub within the 

defined study area. We will further evaluate these lands during our 

development of a proposed critical habitat rule. That evaluation may 

indicate that not all of such habitat is essential for the conservation 

of the species or requires special management. We may also exclude some 

of these areas from designation as critical habitat because of economic 

impacts of such designation.

    Non-Federal Lands. Non-Federal lands include lands owned by local 

and State jurisdictions and private entities. This category includes 

Tribal fee-owned lands. A Federal nexus exists on non-Federal lands 

when there is Federal authorization or funding of, or participation in, 

a project or activity. In such cases, a Federal action agency is 

required to consult with us under section 7(a)(2) of the Act if the 

proposed activity or project may affect a listed species or any 

designated critical habitat.

    Several types of activities on non-Federal lands supporting sage 

scrub habitat could potentially involve a Federal nexus. We have 

evaluated all habitat within the range of the gnatcatcher and all types 

of projects for a potential Federal nexus. For each Federal agency, we 

describe below the agency's potential involvement in activities on non-

Federal lands and identify those areas for which designation of 

critical habitat is prudent.

    <bullet> The BIA may provide funding, logistical support, and 

technical assistance to Indian Tribes for activities that may involve 

Tribal fee-owned lands. In some cases these actions require the BIA to 

consult with us pursuant to section 7 of the Act. However, for the 

reasons stated above in the discussion under ``Tribal Lands,'' we 

conclude that Tribal fee-owned lands, as well as Tribal trust lands, 

are not essential to the conservation of the species and do not meet 

the definition of critical habitat.

    <bullet> The Federal Highway Administration (FHWA) provides funding 

for transportation projects and approves linkages with the Federal 

highway system. These activities require section 7 consultation. Two 

regional transportation plans identify potential transportation 

alignments and alternatives with potential FHWA involvement in southern 

California. The 1998 Regional Transportation Plan authored by the 

Southern California Association of Governments addresses Los Angeles, 

Orange, Riverside, San Bernardino, and Ventura counties, while the 

Regional Transportation Plan 1996-2020 authored by the San Diego 

Association of Governments covers San Diego County. We have identified 

several projects having a Federal nexus through FHWA involvement that 

may affect gnatcatcher habitat. In Orange County, the action area of 

the Foothill Transportation Corridor, which is under the jurisdiction 

of FWHA, contains 461 ha (1,140 ac) of coastal sage scrub, and the 

action area of the State Route 133/Laguna Canyon Road Realignment 

project, which is also under the jurisdiction of FHWA, contains 

approximately 12 ha (29 ac) of habitat. In San Diego County, State 

Route 125 Project contains about 42 ha (105 ac) of habitat; State Route 

905 Project contains about 8 ha (20 ac); State Route 78 Project 

contains about 0.25 ha (0.65 ac) of habitat; and State Route 76 Project 

contains about 7 ha (17 ac). The Moorpark Specific Plan <greek-i>2/

Highway 118 Extension Project, which is a Ventura County project under 

the jurisdiction of the FHWA, contains 243 ha (600 ac) of coastal sage 

scrub habitat. We conclude that designation of critical habitat in 

these areas is prudent.

    <bullet> The Fish and Wildlife Service conducts internal section 7 

consultations when our actions may affect a listed species. Our 

activities on non-Federal lands include issuance of permits for 

incidental take of listed species under section 10 of the Act. Because 

the decision to apply for an incidental take permit, thereby creating a 

Federal nexus for consultation, rests solely with the potential non-

Federal permit applicant, we do not consider the section 10 permit 

process as providing a reliable future Federal nexus for activities on 

non-Federal lands.

    <bullet> The COE and the Environmental Protection Agency (EPA) 

administer the Clean Water Act Section 404 permit program. Under 

Section 404 of the Clean Water Act, a Department of the Army permit is 

required for projects on non-Federal and Federal lands involving a 

discharge of dredged or fill material into waters of the United States, 

including wetlands. The COE and EPA do not generally have jurisdiction 

over upland areas where gnatcatchers are found unless upland 

development is dependent upon an activity requiring a Section 404 

permit. For this reason, Section 404 of the Clean Water Act would not 

ordinarily provide a Federal nexus for activities on non-Federal lands 

where gnatcatchers occur. However, the COE has exercised jurisdiction 

on the SilverHawk project in Riverside County which contains 83 ha (205 

ac) of coastal sage scrub. We conclude that it is prudent to designate 

these 83 ha (205 ac) of coastal sage scrub as critical habitat. We do 

not know of any other projects in gnatcatcher habitat under the 

jurisdiction of the COE.

    By delegation of authority from the Department of Defense through 

the Department of the Army, the COE also has responsibility to address 

all ordnance and explosive wastes concerns and environmental 

restoration activities at former defense sites. As a result, the COE 

has jurisdiction over the East Elliot Ordnance Removal, a project that 

would affect 243 ha (600 ac) of habitat in San Diego County. We 

conclude that it is prudent to designate these 243 ha (600 ac) of 

coastal sage scrub as critical habitat.

[[Page 5961]]

    <bullet> The BLM and Forest Service occasionally exchange their 

lands for non-Federal lands. These land exchanges generally result in 

more manageable landownership configurations for these agencies. These 

agencies mostly try to acquire private inholdings within larger Federal 

holdings in exchange for isolated Federal parcels that are surrounded 

by non-Federal land. The BLM and Forest Service have already completed 

most such land exchanges in southern California, and we do not 

anticipate any future land exchange efforts that would affect the 

gnatcatcher. Occasionally, projects such as roads or utility rights-of-

way will cross both private and Forest Service or BLM property. In 

these instances, both Federal and non-Federal lands will be considered 

during the section 7 consultation process. Because private lands in the 

vicinity of Forest Service or BLM land generally do not contain 

gnatcatcher habitat, the potential of utility projects on Federal land 

also affecting gnatcatcher habitat on private land is speculative and 

likely remote.

    <bullet> The Immigration and Naturalization Service (INS) conducts 

activities along the United States/Mexico border and at immigration 

check stations on major highways north of the border. Current 

anticipated projects along the border include fences and roads to 

increase interdiction of illegal immigrants. These projects are 

generally located within 400 m (0.25 mile) of the international border. 

Within this area, there are approximately 786 ha (1941 ac) of non-

Federal lands containing gnatcatcher habitat that may be affected by 

these projects. We conclude that the designation of critical habitat in 

these areas is prudent.

    <bullet> The Department of Housing and Urban Development (HUD) 

conducts programs to assist private landowners in the purchase, sale, 

and development of their properties. However, these programs generally 

involve rehabilitation or redevelopment of previously disturbed areas 

that do not contain gnatcatcher habitat.

    <bullet> The Federal Emergency Management Agency (FEMA) is involved 

with non-Federal lands following natural disasters and other 

emergencies such as floods, earthquakes, and other natural events. 

FEMA's involvement in the projects typically does not occur during an 

``emergency'' situation, but rather after the disaster has occurred, so 

that any impact to gnatcatcher habitat from such natural disasters 

would also likely have already occurred prior to FEMA involvement. For 

example, actions taken on private lands during a flood event, placing 

riprap for example, do not involve FEMA funds since private landowners 

are taking actions immediately. FEMA may provide financial assistance 

for the repair of culverts, roads, etc. after a disaster. In these 

cases, FEMA consults with us to avoid or minimize impacts to 

gnatcatchers. Additionally under the Hazard Mitigation Grant Program, 

FEMA funds programs, including vegetation management activities to 

reduce the likelihood of wildfires. FEMA is currently consulting with 

us on these actions. The existence of a Federal nexus from future FEMA 

disaster relief or other actions cannot be predicted and is at best 


    <bullet> The Federal Aviation Administration (FAA) oversees 

activities at existing airports and evaluates proposed airport 

expansion and new airport construction. Construction of new airports 

and expansion of existing airports have already been planned in 

southern California, and we considered these projects in the 

development of this determination. The Ramona Airport expansion project 

contains 9 ha (22 ac) of habitat. The designation of critical habitat 

on this parcel is prudent. We do not know of any other FAA projects 

proposed in gnatcatcher habitat.

    As discussed above, FHWA, FAA, INS, and COE may carry out, fund, or 

authorize projects in gnatcatcher habitat on non-Federal lands in San 

Diego, Orange, and Ventura counties. We evaluated these lands to 

determine whether a designation of critical habitat would be prudent. 

We found that a Federal nexus exists for projects covering a total of 

1,894 ha (4,680 ac), and determined that a designation of critical 

habitat would be prudent for these lands.

Approved NCCP Efforts

    Several multi-species planning efforts and habitat conservation 

planning efforts have been undertaken within the southern California 

range of the gnatcatcher to conserve the species and its coastal sage 

scrub habitat. Principal among these are State of California Natural 

Community Conservation Planning (NCCP) efforts in Orange and San Diego 

counties. NCCP plans completed and permitted to date have resulted in 

the conservation of 40,208 ha (99,310 ac) of gnatcatcher habitat.

    In southern San Diego County, the development of the NCCP Multiple 

Species Conservation Program (MSCP) has resulted in our approval of 

three southern County subarea plans under section 10(a)(1)(B) of the 

Act. These three southern subarea plans account for approximately 95 

percent of the gnatcatcher habitat in southern San Diego County. 

Approval is pending for four other subarea plans within southern San 

Diego County's MSCP. This planning effort has resulted in the 

establishment of conservation areas that collectively contain 28,844 ha 

(71,274 ac) of coastal scrub habitat within a 69,573-ha (171,917-ac) 

preserve area.

    In addition, we have approved the Orange County NCCP Central/

Coastal Plan and issued an incidental take permit under section 

10(a)(1)(B) of the Act. This planning effort has resulted in the 

conservation of 15,677 ha (38,738 ac) of reserve lands, which contain 

7,621 ha (18,831 ac) of coastal sage scrub habitat.

    We have also approved several smaller multiple species habitat 

conservation plans (HCPs) in San Diego Riverside, Los Angeles, and 

Orange counties. These include, Bennett Property, Meadowlark Estates, 

Fieldstone, and Poway Subarea Plan in San Diego County; Coyote Hills 

East and Shell Oil in Orange County; Ocean Trails in Los Angeles 

County; and Lake Mathews in Riverside County. These efforts have 

resulted in the protection of 3,743 (9,250 ac) of gnatcatcher habitat.

    The gnatcatcher habitat in the approved NCCPs in San Diego and 

Orange counties was selected for permanent preservation and 

configuration into a biologically viable interlocking system of 

reserves by the local jurisdictions with our technical assistance and 

that of the California Department of Fish and Game. The reserve system 

established under the approved NCCP plans includes the coastal sage 

scrub habitat subject to the jurisdiction of those plans that we 

consider essential to the long-term survival and recovery of the 

gnatcatcher. In addition, the plans provide for management of the 

reserve lands to protect, restore, and enhance their value as 

gnatcatcher habitat. Because the essential gnatcatcher habitat that is 

subject to the jurisdiction of the approved plans is permanently 

protected in the habitat reserves, no additional private lands covered 

by the plans warrant designation as critical habitat. In addition, 

because the gnatcatcher habitat preserved in the plan is managed for 

the benefit of the gnatcatcher as required under the plans, there are 

no ``additional management considerations or protections'' within the 

meaning of ``critical habitat'' under section 3(5)(A)(ii) of the Act 

required for those lands. Therefore, we have determined that private 

lands subject to the approved NCCPs do not meet the

[[Page 5962]]

definition of critical habitat in the Act and that designation of such 

lands would not benefit the gnatcatcher.

Private Lands Without a Federal Nexus

    We conclude that the designation of critical habitat on the 259,226 

ha (640,560 ac) of coastal sage scrub on non-Federal lands that either 

lack a Federal nexus or are covered by approved HCPs under the NCCP 

program is not prudent. Threats and acts of vandalism toward coastal 

sage scrub habitats were most acute at the time of the publication of 

the final listing for the gnatcatcher in 1993 (58 FR 16742). The 

destruction of coastal scrub habitat in apparent attempts to circumvent 

potential land use restrictions resulting from Endangered Species Act 

prohibitions continues. Our Law Enforcement Division has received 

information on six incidents of land clearing that cumulatively 

resulted in the destruction of about 243 ha (600 ac) of coastal sage 

habitat and the possible take of up to eight pairs of gnatcatchers. 

These actions involved clearing of coastal sage scrub, in some 

instances without County grading permits, in San Diego, Riverside and 

San Bernardino counties. We also have recently initiated investigation 

into activities that apparently affected two endangered species, the 

Quino checkerspot butterfly and the Delhi Sands flower-loving fly.

    As has been documented by a series of recent newspaper articles, 

some members of the public believe that--(1) critical habitat can be 

``* * *put off limits for development* * *'' (San Diego Union Tribune, 

May 22, 1997), and (2) the presence of listed species on a land parcel 

can create ``* * *a lot of uncertainty among developers* * *'' and 

complicate land sales (Riverside Press-Enterprise, January 7, 1998).

    The vast majority of private lands lack a Federal nexus that would 

invoke the section 7 prohibition against adverse modification of 

critical habitat. Also, considering the common misunderstandings about 

the effects of designation, we believe that designating such lands as 

critical habitat would increase the instances of habitat destruction 

and exacerbate threats to the gnatcatcher. Therefore, we conclude that 

the threats that would result from designating these lands as critical 

habitat outweigh the benefit that would be provided.

    We will continue to investigate all instances of coastal sage scrub 

clearing that may result in an unauthorized ``take'' of gnatcatchers in 

violation of section 9 of the Act. Also, we are continuing extensive 

outreach efforts to address public misunderstandings about the 

gnatcatcher and its habitat. We are continuing to encourage local 

jurisdictions to pursue comprehensive multi-species conservation plans 

(e.g., NCCP plans) to conserve the gnatcatcher and other sensitive 

species. Our cooperative approach is intended to ameliorate the 

circumstances that may have led private landowners to destroy coastal 

sage scrub habitat and to correct the misinformation presented by some 

media accounts.

    We acknowledge that in some cases a designation of critical habitat 

on private lands may provide some benefit to a species by highlighting 

areas where the species may occur or areas that are important to the 

species' recovery. However, as discussed above, the status of the 

gnatcatcher, its coastal sage scrub habitat requirements, and the 

location of that habitat are already well known, and this information 

is readily available. County planning agencies inform members of the 

public about sensitive resources, including the gnatcatcher and its 

habitat, that may potentially occur on their lands. For example, the 

County of San Diego informs applicants for grading permits of the 

status of gnatcatchers and may require them to survey for the birds 

prior to receiving a permit. Numerous newspaper articles have also 

appeared describing the gnatcatcher and its habitat. The plight of this 

species and coastal sage scrub habitat is well known to the public, and 

a designation of critical habitat on private lands will not appreciably 

increase landowners' knowledge of areas important for gnatcatcher 


    We, therefore, conclude that no benefit would arise from 

designating critical habitat on private lands that do not have a 

Federal nexus. To the contrary, we believe it is likely that a 

designation of critical habitat on private lands may incite some 

members of the public and increase incidences of habitat destruction 

through acts of vandalism above current levels. Because, in this case, 

no benefit can be identified, and because of increased threats to the 

gnatcatcher and its habitat likely to result from designation, we 

conclude that designation of critical habitat on private lands that 

lack a Federal nexus is not prudent.

Summary and Conclusion

    We conclude that designation of critical habitat totaling 50,257 ha 

(124,188 ac) on lands within the United States portion of the range of 

the gnatcatcher is prudent (Table 1). This total includes all Federal 

lands within the range of the gnatcatcher (48,364 ha (119,508 ac)) and 

1,894 ha (4,680 ac) of non-Federal lands where a Federal nexus exists.

    In addition to determining whether designation of an area as 

critical habitat is prudent, we must also evaluate, in accordance with 

section 3(5)(A) of the Act, whether the area is essential to the 

conservation of the species and whether the area may require special 

management considerations or protection before designating the area as 

critical habitat. Also, section 4(b)(2) of the Act requires us to 

evaluate economic and other impacts, and exclude any area from the 

designation if the benefits of excluding the area outweigh the benefits 

of including the area, unless the exclusion would result in the 

extinction of the species. These additional determinations required to 

designate critical habitat are not a part of the prudency determination 

ordered by the Court. We are deferring these additional determinations 

consistent with the current listing priority guidance published (63 FR 

10931) described below.

Listing Priority Guidance

    We published Listing Priority Guidance for Fiscal Years 1998 and 

1999 on May 8, 1998 (63 FR 25502). The guidance clarifies the order in 

which we will process rulemakings, giving highest priority (Tier 1) to 

processing emergency rules to add species to the Lists of Endangered 

and Threatened Wildlife and Plants; second priority (Tier 2) to 

processing final determinations on proposals to add species to the 

lists, processing new listing proposals, processing administrative 

findings on petitions (to add species to the lists, delist species, or 

reclassify listed species), and processing a limited number of proposed 

and final rules to delist or reclassify species; and third priority 

(Tier 3) to processing proposed and final rules designating critical 

habitat. Upon completion of higher priority listing actions in 

accordance with the listing priority guidance, we intend to go forward 

with the critical habitat designation process for the gnatcatcher.

References Cited

Riverside Press-Enterprise. January 7, 1998. Rats! Irked developers 

frustrated by butterfly. Page 22.

San Diego Union Tribune. May 22, 1997. Court says gnatcatcher must 

have safe habitat. Page A-3.


    The primary authors of this document are Loren R. Hays, Doug 

Krofta, Art Davenport, Clark Roberts, and Jim

[[Page 5963]]

Bartel, Carlsbad Fish and Wildlife Office (see ADDRESSES section).


    The authority for this action is the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 21, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-2866 Filed 2-5-99; 8:45 am]