2000 Federal Register, 61217; Centralized Library: U. S. Fish and Wildlife Service

[Federal Register: October 16, 2000 (Volume 65, Number 200)]
[Proposed Rules]
[Page 61217-61244]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16oc00-41]

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Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Proposed Designation of
Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha
bayensis); Proposed Rule

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH61

Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Bay Checkerspot Butterfly
(Euphydryas editha bayensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat pursuant to the Endangered Species Act of
1973, as amended (Act), for the bay checkerspot butterfly (Euphydryas
editha bayensis) (bay checkerspot). A total of approximately 10,597
hectares (26,182 acres) of land falls within the boundaries of the
proposed critical habitat designation. Proposed critical habitat is
located in San Mateo and Santa Clara Counties, California. If this
proposal is made final, section 7 of the Act requires Federal agencies
to insure that any activity they fund, authorize, or carry out does not
result in the destruction or adverse modification of critical habitat.
Section 4 of the Act requires us to consider economic and other impacts
of specifying any particular area as critical habitat. We solicit data
and comments from the public on all aspects of this proposal, including
data on the economic and other impacts of the designation. We may
revise this proposal to incorporate or address new information received
during the comment period.

DATES: We will accept comments until December 15, 2000. We will hold a
public hearing in Newark, California, on October 30, 2000, from 1:00
p.m. to 3:00 p.m. and from 6:00 p.m. to 8:00 p.m.

ADDRESSES: Comment Submission: If you wish to comment, you may submit
your comments and materials concerning this proposal by any one of
several methods.
(1) You may mail written comments to the Field Supervisor,
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service,
2800 Cottage Way, Suite W 2605, Sacramento, California 95825.
(2) You may send comments by electronic mail (e-mail) to
fw1baycheckerspot@fws.gov. See the Public Comments Solicited section
below for file format and other information about electronic filing.
(3) You may hand-deliver comments to our Sacramento Fish and
Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way,
Suite W 2605, Sacramento, California 95825.
Public Hearing: We will hold the Newark hearing at the Hilton
Newark/Fremont, 39900 Balentine Drive, Newark, California.
Document Availability: Comments and materials received, as well as
supporting documentation used in the preparation of this proposed rule,
will be available for public inspection, by appointment, during normal
business hours at the address listed under (3) above.

FOR FURTHER INFORMATION CONTACT: David Wright or Ken Sanchez at
telephone 916/414-6600.

SUPPLEMENTARY INFORMATION:

Background

The bay checkerspot is a medium-sized butterfly with a wingspan of
about 5 centimeters (2 inches). The forewings have black bands along
all the veins on the upper wing surface, contrasting sharply with
bright red, yellow, and white spots. The bay checkerspot differs from
LuEsther's checkerspot (Euphydryas editha luestherae) (a later-flying,
Pedicularis-feeding subspecies of Inner Coast Range chaparral in
central California) by being darker, and by lacking a relatively
uninterrupted red band demarcating the outer wing third. The black
banding on the forewings of the bay checkerspot gives a more checkered
appearance than in other subspecies, such as the smaller Quino
checkerspot (Euphydryas editha quino) of southern California, or the
montane subspecies (for example, the Mono checkerspot, Euphydryas
editha monoensis) (Service 1998).
Recent publications have advocated renaming the bay checkerspot,
Euphydryas editha bayensis, as Euphydryas editha editha for reasons of
historical precedence (Mattoni et al. 1997; Emmel et al. 1998). Mattoni
and co-authors (1997) have also suggested that Euphydryas editha editha
ranges from the San Francisco Bay area south to Santa Barbara County in
California, and includes both the populations commonly known as the bay
checkerspot and several populations south of Santa Clara County whose
subspecific status has been uncertain. If this expanded subspecific
assignment is accepted by the scientific community, it would represent
a range extension for the bay checkerspot. Until such time as we make
any new or revised determination on the taxonomy, and in this proposed
rule, we treat the threatened bay checkerspot as occurring in San
Francisco Bay area counties, notably the Counties of San Mateo and
Santa Clara.
The bay checkerspot formerly occurred around San Francisco Bay,
from Twin Peaks and San Bruno Mountain (west of the Bay) and Contra
Costa County (east of the Bay) south through Santa Clara County. Before
the introduction of invasive Eurasian grasses and other weeds in the
1700s, its distribution may have been wider (Service 1998). In the
decades preceding listing, the decline of the bay checkerspot was
primarily attributed to loss of habitat and fragmentation of habitat
due to increasing urbanization. Drought and other extremes of weather
have also been implicated in bay checkerspot population declines
(Service 1998). Recent research has tentatively identified excess
nitrogen deposition from polluted air as a threat to bay checkerspot
habitats, due to its fertilizing effect enhancing the growth of
invasive nonnative plants even in serpentine soil areas (Weiss 1999).
The known range of the bay checkerspot is now reduced to Santa
Clara and San Mateo Counties, and the butterfly is patchily distributed
in these locales. Studies of the bay checkerspot have described its
distribution as an example of a metapopulation (see literature cited in
Service 1998). A metapopulation is a group of spatially separated
populations that can occasionally exchange dispersing individuals. The
populations in a metapopulation are usually thought of as undergoing
interdependent extinction and colonization, where individual
populations may go extinct, but later recolonize from another
population. Bay checkerspot populations may also exhibit ``pseudo-
extinction,'' where the species is not found, but nonetheless continues
to inhabit a site and reappears in a subsequent year. Larvae that
diapause (spend a period of dormancy as larvae (caterpillars)), under
rocks and deep in soil cracks for more than 1 year may be responsible
for pseudo-extinctions, since dormant larvae are essentially
undetectable in surveys. Because of pseudo-extinction and
metapopulation dynamics, even sites that in some years apparently lack
the bay checkerspot can be important to the survival and recovery of
the species.
Bay checkerspot butterfly populations vary greatly from year to
year. Many or most individuals of the species live only a single year,
and with high fecundity (fertility), high mortality, and sensitivity to
weather and perhaps other ecological conditions, large population
swings are

[[Page 61219]]

common for the bay checkerspot. Fluctuations of more than 100-fold have
been observed. These fluctuations are not always in synchrony among
populations at different sites.
Habitat of the bay checkerspot exists on shallow, serpentine-
derived or similarly droughty or infertile soils, which support the
butterfly's larval food plants as well as nectar sources for adults.
Serpentine soils are high in magnesium and low in calcium, and are a
strong indicator of habitat value for the butterfly. The primary larval
host plant of the bay checkerspot is Plantago erecta (dwarf plantain),
an annual, native plantain. The butterfly usually is found associated
with Plantago erecta in grasslands on serpentine soils, such as soils
in the Montara series. In Santa Clara County, the Inks and Climara soil
series are related soils and often have inclusions of Montara (U.S.
Soil Conservation Service 1974). Henneke and other serpentine soils
also occur within the range of the butterfly. Populations of the bay
checkerspot formerly occurred on San Bruno Mountain and other locations
with soils that are not serpentine. We believe this indicates that,
with otherwise suitable habitat conditions, the bay checkerspot is
capable of living in nonserpentine soil areas.
In many years, bay checkerspot larvae may use a secondary host
plant species, for instance, when dwarf plantain dries up while
prediapause larvae are still feeding. Castilleja (Orthocarpus)
densiflora (purple owl's-clover) and Castilleja exserta (Orthocarpus
purpurascens) (exserted paintbrush) are known secondary host plants
that often remain edible later in the season than dwarf plantain. Bay
checkerspot adults also visit flowers for nectar. Nectar plants
commonly visited include Lomatium spp. (desert parsley), Lasthenia
californica (= chrysostoma) (California goldfields), Layia platyglossa
(tidy-tips), Muilla maritima, and others. Moderate grazing is normally
compatible with habitat for the bay checkerspot, since grazing can
reduce the density and height of nonnative plants that compete with the
native plants supporting the butterfly.
Adult bay checkerspots are capable of dispersing over long
distances. Movements of more than 5.6 kilometers (km) (3.5 miles (mi))
have been documented (Harrison 1989; Service 1998). In all dispersal
observations and experiments, long-distance movements are hard to
detect, and thus their frequency and importance are difficult to
quantify. Long-distance dispersal, especially by fertilized females
carrying eggs, is likely to be important to the natural reestablishment
of bay checkerspot populations that have disappeared. Qualitative
observations suggest that bay checkerspots move readily over suitable
grassland habitat, but are more reluctant to cross scrub, woodland, or
other unsuitable habitat. Roads, especially those traveled more heavily
and at higher speeds, present a risk of death or injury to dispersing
bay checkerspots. Where corridors that facilitate dispersal exist, they
may support the persistence of bay checkerspot populations.
The bay checkerspot's life cycle is closely tied to host plant
biology. Host plants germinate anytime from early October to late
December, and senesce (dry up and die) from early April to mid May.
Most of the active parts of the bay checkerspot life cycle also occur
during this period. Adults emerge from pupae (a transitional stage
between caterpillar and adult butterfly) in early spring, and feed on
nectar, mate, and lay eggs during a flight season that typically lasts
for 4 to 6 weeks in the period between late February to early May. The
eggs hatch and the tiny larvae feed for about 2 to 3 weeks before
entering diapause (a temporary cessation of development) in mid to late
spring. The postdiapause larvae emerge after winter rains stimulate
germination of Plantago, and feed and bask until they are large enough
to pupate and emerge as adults (Service 1998).

Previous Federal Action

On October 21, 1980, we were petitioned by Dr. Bruce O. Wilcox,
Dennis D. Murphy, and Dr. Paul R. Ehrlich to list the bay checkerspot
as an endangered species. We published a Notice of Status Review on
February 13, 1981 (46 FR 12214). Following our status review, we found
that listing the bay checkerspot was warranted but precluded by other
pending listing actions (49 FR 2485). We proposed the bay checkerspot
for listing as endangered with critical habitat on September 11, 1984
(49 FR 35665), and listed the species as threatened on September 18,
1987 (52 FR 35366). At the time of listing, because of difficulty in
resolving the value of specific habitats to the species and assessing
the activities being conducted in those areas, we concluded that
critical habitat was not determinable. We published a Recovery Plan for
Serpentine Soil Species of the San Francisco Bay Area (Recovery Plan)
in September 1998 that includes the bay checkerspot (Service 1998), as
required under section 4(f) of the Endangered Species Act of 1973, as
amended (Act) (16 U.S. C. 1531 et seq.).
On June 30, 1999, the Center for Biological Diversity filed a
complaint against us challenging our critical habitat findings for
seven species, including the bay checkerspot. On August 30, 2000, the
United States District Court for the Northern District of California
(Southwest Center for Biological Diversity v. Bruce Babbitt, et al.,
CIV 99-3202 SC) ruled on several of the species involved, including the
bay checkerspot. The court ordered us to propose critical habitat
within 60 days of the ruling and to finalize the designation within 120
days of the proposed designation.

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) which may require special management
consideration or protection, and (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon
determination that such areas are essential for the conservation of the
species. ``Conservation'' means the use of all methods and procedures
that are necessary to bring an endangered species or a threatened
species to the point at which listing under the Act is no longer
necessary.
Section 4(b)(2) of the Act requires that we base critical habitat
proposals upon the best scientific and commercial data available, after
taking into consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat. We may
exclude areas from critical habitat designation when the benefits of
exclusion outweigh the benefits of including the areas within critical
habitat, provided the exclusion will not result in the extinction of
the species (section 4(b)(2) of the Act).
Designation of critical habitat can help focus conservation
activities for a listed species by identifying areas that contain the
physical and biological features essential for the conservation of that
species. Designation of critical habitat alerts the public as well as
land-managing agencies to the importance of these areas.
Critical habitat also identifies areas that may require special
management considerations or protection, and may provide protection to
areas where significant threats to the species have been identified.
Critical habitat receives protection from destruction or adverse

[[Page 61220]]

modification through required consultation under section 7 of the Act
with regard to actions carried out, funded, or authorized by a Federal
agency. Section 7 also requires conferences on Federal actions that are
likely to result in the adverse modification or destruction of proposed
critical habitat. Aside from the protection that may be provided under
section 7, the Act does not provide other forms of protection to lands
designated as critical habitat.
Section 7(a)(2) of the Act requires Federal agencies to consult
with us to ensure that any action they authorize, fund, or carry out is
not likely to jeopardize the continued existence of a threatened or
endangered species, or result in the destruction or adverse
modification of critical habitat. In 50 CFR 402.02, ``jeopardize the
continued existence'' (of a species) is defined as engaging in an
activity likely to result in an appreciable reduction in the likelihood
of survival and recovery of a listed species. ``Destruction or adverse
modification'' (of critical habitat) is defined as a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for the survival and recovery of the listed species for which critical
habitat was designated. Thus, the definitions of ``jeopardy'' to the
species and ``adverse modification'' of critical habitat are nearly
identical.
Critical habitat identifies specific areas that have features that
are essential to the conservation of a listed species and that may
require special management considerations or protection. The proposed
critical habitat areas are considered essential to the conservation of
the bay checkerspot butterfly as described in the Recovery Plan
(Service 1998). However, designating critical habitat does not, in
itself, lead to recovery of a listed species. Designation does not
create a management plan, establish numerical population goals, or
prescribe specific management actions (inside or outside of critical
habitat). Specific management recommendations for areas designated as
critical habitat are most appropriately addressed in recovery,
conservation, and management plans, and through section 7 consultations
and section 10 permits.

Methods

In determining areas that are essential to conserve the bay
checkerspot, we used the best scientific information available to us.
This information included habitat suitability and site-specific species
information. We have emphasized areas of current and historical bay
checkerspot occurrences, especially larger sites in proximity to known
occurrences. To maintain genetic and demographic interchange that will
help maintain the viability of a regional metapopulation, we included
corridor areas that allow movement between populations. Dispersal is a
crucial function for a species with metapopulation dynamics like the
bay checkerspot.
We used data on known and historic locations and maps of serpentine
soils to identify potentially important areas. Then, through the use of
1990s digital orthophotos available through the Bay Area Digital
GeoResource (BADGER) website (http://badger.parl.com), and limited
ground checking, we estimated the current extent of suitable breeding
habitat. We included in critical habitat both suitable habitat and
areas that link suitable breeding habitat, since these links facilitate
movement of individuals between habitat areas, and are important for
dispersal and gene flow and thus to the conservation of the species.
Our 1984 proposal to list the bay checkerspot butterfly with
critical habitat (49 FR 35665) proposed five critical habitat zones.
Four of the five are included in this proposal, with modifications
based on improved knowledge of the biology and habitat of the species.
Since the original proposal, the fifth zone (Woodside Zone) has been
mostly converted to housing, so we are no longer proposing it for
designation as critical habitat. Since 1984, a great deal of literature
on the bay checkerspot butterfly, both published and unpublished, has
added to our understanding of the species (see literature cited in
Service 1998; Weiss 1999; Weiss and Launer 2000). Based on this
expanded information, we have been able to identify habitats and
populations that were poorly documented before the mid-1980s, and
assess their significance. Besides the four previously identified
critical habitat zones, this critical habitat proposal identifies 11
additional habitat units essential to the conservation of the bay
checkerspot, for a total of 15 critical habitat units.

Primary Constituent Elements

In accordance with section 3(5)(A)(I) of the Act and regulations at
50 CFR 424.12(b), in determining which areas to propose as critical
habitat, we must consider those physical and biological features
(primary constituent elements) that are essential to the conservation
of the species. These include, but are not limited to space for
individual and population growth and for normal behavior; food, water,
or other nutritional or physiological requirements; cover or shelter;
sites for breeding, reproduction, or rearing of offspring; and habitats
that are protected from disturbance or are representative of the
historic geographical and ecological distributions of a species.
The primary constituent elements of critical habitat for the bay
checkerspot are those habitat components that are essential for the
primary biological needs of foraging, sheltering, breeding, maturation,
and dispersal. The areas we propose to designate as critical habitat
provide some or all of the known primary constituent elements for the
species, which include: areas of open grassland; stands of Plantago
erecta, Castilleja exserta, or Castilleja densiflora; spring flowers
providing nectar; pollinators of the bay checkerspot's food and nectar
plants; soils derived from serpentinic rock; stable holes or cracks in
the soil and surface rocks or rock outcrops; wetlands providing
moisture during times of spring drought; and space for dispersal
between habitable areas. In addition, topography with varied slopes and
aspects is a primary constituent element to be conserved when it is
present in combination with one or more of the primary constituent
elements above.
Appropriate grassland vegetation provides cover for larvae, pupae
and adults, egg-laying stimuli and sites for females, and adequate open
ground for larvae to be able to crawl efficiently in search of
foraging, basking, diapause, or pupation sites (Service 1998). Stands
of food plants, including nectar plants, are important in the
butterfly's life cycle. The bay checkerspot's primary larval food plant
is Plantago erecta, an annual, native plantain. The larvae also often
use a secondary food plant species, usually either Castilleja
(Orthocarpus) densiflora (purple owl's-clover) or Castilleja exserta
(Orthocarpus purpurascens) (exserted paintbrush). These secondary food
plants tend to remain edible later in the season than the plantain. Bay
checkerspot adults benefit from visiting flowers for nectar. Nectar
plants commonly visited include Lomatium spp. (desertparsley),
Lasthenia californica (= chrysostoma) (California goldfields), Layia
platyglossa (tidy-tips), Muilla maritima, and others.
Adequate native pollinators to sustain populations of Castilleja
and nectar species, including but not limited to such groups as
bumblebees and solitary bees, are important to the value of critical
habitat because these plants are dependent on pollinators to reproduce
and perpetuate their populations in the area. Plantago erecta is
thought to be self-pollinating.

[[Page 61221]]

The butterfly usually is found associated with grasslands on
serpentine soils, such as the Montara soil series. In Santa Clara
County, the Inks and Climara soil series are related soils and often
have inclusions of Montara (U.S. Soil Conservation Service 1974).
Henneke and other serpentine soils also occur within the range of the
butterfly. Serpentine soils often support other primary constituent
elements, but they are not limited to serpentine soils. Soil structure
with stable holes or cracks and surface rocks or rock outcrops provide
cover and shelter for bay checkerspot larvae seeking diapause sites and
basking sites.
Bay checkerspot adults have been observed to fly considerable
distances during drought conditions to draw water or solutes from moist
soils around wetlands (``puddling,'' Launer et al. 1993). Triggering of
the puddling behavior by drought conditions suggests it is a directed,
adaptive behavior, and that the butterflies are seeking out moist areas
during times of water or heat stress to obtain essential nutrients or
water.
Adult bay checkerspots are capable of dispersing over long
distances. Movements of more than 5.6 kilometers (km) (3.5 miles (mi))
have been documented (see Service 1998), and longer movements are
possible. Adult dispersal, especially by fertilized females carrying
eggs, is vital to the maintenance of natural bay checkerspot
metapopulation structure, which requires reestablishment or
replenishment of populations that are at or near local extinction.
Roads, especially those traveled more heavily and at higher speeds,
present a risk of death or injury to dispersing bay checkerspots. Where
open spaces exist that facilitate dispersal, they may support the
persistence of bay checkerspot populations and metapopulations. Some
habitats or land uses are thought to be more suitable for dispersal
than others; for example, grassland may be more readily crossed than
woodland or landscaped areas. But documented long-distance movements
demonstrate that the butterfly is sometimes capable of crossing a
variety of substrates (Service 1998).
Topographic diversity provides opportunities for early season
warmth as well as cool north- and east-facing slopes that are a refuge
for the species during droughts. Bay checkerspot larvae develop more
rapidly when they can bask in sunlight that penetrates short-statured
grassland vegetation. Adults also use warm exposures for basking, and
find early season nectar plants on warm south- and west-facing slopes.

Criteria Used To Identify Critical Habitat

In an effort to map areas that have the features essential to the
conservation of the species, we used data on known bay checkerspot
locations and conservation planning areas that were identified in the
final recovery plan (Service 1998) as essential for the recovery of the
species.
We also considered the existing status of lands in designating
areas as critical habitat. The bay checkerspot is known to occur on
State, county, and private lands. The range of critical habitat extends
in the south from the San Martin area, in Santa Clara County, north to
San Bruno Mountain in San Mateo County. We could not depend on Federal
lands for critical habitat designation because we are not currently
aware of any Federal lands within the range of the bay checkerspot that
can be inhabited by the butterfly. We are not aware of any Tribal lands
in or near our proposed critical habitat units for the bay checkerspot.
However, should we learn of any Tribal lands in the vicinity of the
critical habitat designation subsequent to this proposal, we will
coordinate with the Tribes before making a final determination as to
whether any Tribal lands should be included as critical habitat for the
bay checkerspot.
Section 10(a) of the Act authorizes us to issue permits to take
listed species incidental to otherwise lawful activities. An incidental
take permit application must be supported by a habitat conservation
plan (HCP) that identifies conservation measures that the permittee
agrees to implement for the species to minimize and mitigate the
impacts of the requested incidental take. One small, short-term HCP
covers the bay checkerspot in about 10 acres of critical habitat
through November 2001. This HCP permits temporary project-related
impacts from electric transmission line work. To date, project
construction anticipated to affect the bay checkerspot is substantially
complete (see the Relationship to Habitat Conservation Plans section
below for additional information on the relationship between HCPs and
critical habitat designation).
In defining critical habitat boundaries, we made an effort to avoid
developed areas, such as towns and other similar lands, that are
unlikely to contribute to bay checkerspot conservation. However, the
minimum mapping unit that we used did not allow us to exclude all
developed areas, such as towns, or housing developments, or other lands
unlikely to contain the primary constituent elements essential for
conservation of the bay checkerspot. Existing features and structures
within the boundaries of the mapped units, such as buildings, roads,
aqueducts, railroads, airports, other paved areas, lawns, and other
urban landscaped areas will not contain one or more of the primary
constituent elements. Federal actions limited to those areas,
therefore, would not trigger a section 7 consultation, unless they
affect the species and/or primary constituent elements in adjacent
critical habitat.

Proposed Critical Habitat Designation

The approximate area encompassing proposed critical habitat by land
ownership is shown in Table 1. Lands proposed are under private and
State and local ownership. The species is not known to occur or to have
historically occurred on Federal lands. Lands proposed as critical
habitat have been divided into 15 Critical Habitat Units. Critical
habitat proposed for the bay checkerspot includes 10,597 hectares (ha)
(26,182 acres (ac)), with 806 ha (1,992 ac) in San Mateo County and
9,791 ha (24,190 ac) in Santa Clara County. Because the bay checkerspot
is nearly confined to island-like patches of habitat, its critical
habitat is easily categorized into separate areas or units (see maps).
We present brief descriptions of each unit, and our reasons for
proposing it as critical habitat, below.
Conserving the butterfly includes the need to reestablish historic
populations of the species to areas within several of the units, in
order to secure the butterfly in representative sites in its former
range, and in a range of habitat and climate conditions. Returning the
butterfly to good representatives of its former diversity of sites and
habitat and climate conditions is necessary to reduce the long-term
risk of range-wide extinction of the species (Service 1998).

[[Page 61222]]

Table 1.--Approximate Critical Habitat in Hectares (ha) and Acres (ac) by County and Land Ownership
[Area estimates reflect critical habitat unit boundaries; however, not all the areas within those broad
boundaries, such as cities, towns, or other developments, contain habitat features considered essential to the
survival of the bay checkerspot butterfly]
----------------------------------------------------------------------------------------------------------------
County Federal Local/State Private Total
----------------------------------------------------------------------------------------------------------------
San Mateo................................... 0 519 ha 287 ha 806 ha
(1,283 ac) (709 ac) (1,992 ac)
Santa Clara................................. 0 1,704 ha 8,087 ha 9,791 ha
(4,210 ac) (19,980 ac) (24,190 ac)
Total....................................... 0 2,223 ha 8,374 ha 10,597 ha
(5,493 ac) (20,689 ac) (26,182 ac)
----------------------------------------------------------------------------------------------------------------

Unit 1. Edgewood Park/Triangle Unit

Occurring in San Mateo County, this unit comprises 217 ha (535 ac)
in T.5 S., R.4 W. (Mount Diablo meridian/base line). Included is most
of Edgewood Natural Preserve, a county park southeast of the junction
of Edgewood Road and I-280, and watershed lands of the San Francisco
Water Department within the triangle formed by I-280, Edgewood Road,
and Canada Road, as well as a small additional area of serpentine soil
on the west side of Canada Road. Much of this area also falls within
the San Francisco State Fish and Game Refuge. The area supports the
Edgewood population of the butterfly discussed in the species' recovery
plan, which is the main population of the San Mateo metapopulation of
the bay checkerspot (Service 1998). Without the Edgewood population the
San Mateo metapopulation would almost certainly go extinct, resulting
in the loss of one of only two metapopulations of the bay checkerspot
and a significant range reduction for the species. This population is
also the northernmost remaining population of the species. The unit
contains considerable areas of good habitat, although additional
management attention may be needed for the butterfly to thrive here.

Unit 2. Jasper Ridge Unit

Occurring within San Mateo County, the unit covers 287 ha (709 ac)
in Stanford University's Jasper Ridge Biological Preserve, in T.6 S.,
R.3 W. (Mount Diablo meridian/base line). There are decades of data and
dozens of published scientific papers about the Jasper Ridge population
of the bay checkerspot. The population has declined severely in recent
years, and may now be extirpated. However, we are confident that a
stable population of the species can be restored to Jasper Ridge. The
Jasper Ridge population is essential as a supporting element of the San
Mateo metapopulation, and a backup to the Edgewood and prospective San
Bruno Mountain populations.

Unit 3. San Bruno Mountain Unit

This unit also occurs in San Mateo County, with approximately 303
ha (749 ac) in T.3 S., R.5 W. (Mount Diablo meridian/base line), above
the 152 m (500 ft) elevation contour and east of the western Pacific
Gas and Electric transmission corridor on San Bruno Mountain. This unit
is mostly within San Bruno Mountain State and County Park, and is
inside the boundaries of the San Bruno Mountain Area Habitat
Conservation Plan area. The bay checkerspot formerly inhabited this
area, but is believed to have been extirpated around 1986 by a
combination of factors, including over-collection and a fire that
burned its habitat. However, this unit has supported a substantial bay
checkerspot population in the past, and it is reasonable to expect that
the butterfly can be reestablished here.
San Bruno Mountain represents the most northerly part of the
species' former range on the San Francisco peninsula with reasonably
good conditions to support the butterfly. The San Bruno Mountain unit
is essential as a supporting element of the San Mateo metapopulation
and a backup to the Edgewood and Jasper Ridge populations.

Unit 4. Bear Ranch Unit

The Bear Ranch unit, totaling 250 ha (618 ac), lies west of Coyote
Lake (Coyote Reservoir) in the eastern hills of the Santa Clara Valley,
in southern Santa Clara County (T.9 S., R.4 E. and T.10 S., R.4 E.,
Mount Diablo meridian/base line). The unit is named for a ranching
property that partly occurs in the unit. The ranch and lands, including
and surrounding the unit, are now owned and managed by the Santa Clara
County Parks and Recreation Department. This location represents one of
the most recent population discoveries of the bay checkerspot and has
been documented for several years as a persistent population. The
population is also one of the most southerly occurrences of the
butterfly. It lies about 10 km (6 mi) southeast of the Kirby core
population area described in the recovery plan, with some intervening
habitable areas and adequate dispersal corridors. Over 40 ha (100 ac)
of mapped serpentine soils in several large to small patches occur
within the unit. In addition to the significance of its position
establishing the outer perimeter of the range of the species, the
recovery plan makes the protection of large, good quality habitat areas
near core populations, such as this, a high priority (Service 1998).

Unit 5. San Martin Unit

This unit includes 237 ha (586 ac) west of San Martin, in the
western foothills of the Santa Clara Valley in southern Santa Clara
County (T.9 S., R.3 E). Included in the designated critical habitat are
extensive areas of serpentine soils and intervening areas that may
support habitat or be needed for dispersal. Regular occupation of the
unit by the bay checkerspot has been documented, although no recent
quantitative surveys are available of this population. The unit lies
entirely on private lands in unincorporated Santa Clara County, about
6.4 km (4 mi) west-southwest of the Bear Ranch unit and 11 km (7 mi)
south of the Kirby core area. This is the second population at the
southern periphery of the range. The recovery plan makes the protection
of large, good quality habitat areas near core populations, such as
this, a high priority (Service 1998). We are not aware of any public
lands in the unit.

Unit 6. Communications Hill Unit

Communications Hill, and adjacent hilltops in south-central San
Jose, are formed by outcroppings of serpentine rock, with grasslands
capable of supporting the bay checkerspot. This unit occurs in Santa
Clara County and covers 179 ha (443 ac) of mostly undeveloped land. It
also crosses a major road and railroad tracks, and includes a quarry
that we believe, after appropriate reclamation, could be restored to
bay checkerspot habitat. The butterfly has been documented on
Communications Hill in the past, but no

[[Page 61223]]

recent comprehensive surveys for the species have been conducted in the
area. Whether the unit is currently occupied is not known. The recovery
plan calls for conservation of larger habitat areas currently or
historically occupied by the bay checkerspot. This location also
represents the northwestern-most remnant of the Santa Clara County
metapopulation. The unit is surrounded by Curtner Avenue, Almaden
Expressway, Hillsdale Avenue, and Monterey Road (T.7 S., R.1 E., Mount
Diablo meridian/base line).
Much of this unit lies on private lands within unincorporated
lands, with a smaller area in the City of San Jose. Portions of a Santa
Clara County communications facility and a San Jose water company
facility may fall within the unit. Only currently undeveloped areas
supporting the primary constituent elements of habitat for the
butterfly would be subject to regulatory oversight of any Federal
actions.

Unit 7. Kalana Hills Unit

The Kalana Hills unit in Santa Clara County comprises 240 ha (592
ac) on the southwest side of the Santa Clara Valley between Laguna
Avenue and San Bruno Avenue (T.9 S., R.2 E, Mount Diablo meridian/base
line). Four serpentine outcrops form hills or hillsides in this area.
At least one population of the bay checkerspot has been documented on
one or all of these outcrops in recent surveys. This unit also includes
intervening areas that connect the outcrops. The Coyote Ridge unit lies
about 3.2 km (2 mi) to the northeast, the Santa Teresa unit about 2 km
(1.2 mi) to the northwest, the San Vicente-Calero unit about 3.2 km (2
mi) to the west, and the Morgan Hill unit about 3.2 km (2 mi) to the
southeast. Because of its proximity to several other, large population
centers for the butterfly, we expect the Kalana Hills unit to be
regularly occupied by the species. If, as is possible given the bay
checkerspot's large population swings, the butterfly's population in
the unit were to die out, it is likely to be quickly reestablished by
bay checkerspots immigrating from adjacent sites. We are not aware of
any public lands in the unit. A portion of the largest and northernmost
serpentine outcrop is within the limits of the City of San Jose; the
remainder of the unit is on private lands in unincorporated Santa Clara
County.

Unit 8. Kirby Unit

The Kirby critical habitat unit includes 2,855 ha (7,053 ac) along
the southern portion of ``Coyote Ridge'' in Santa Clara County (T.8 S.,
R.2 E., T.8 S., R.3 E., and T.9 S., R.3 E., Mount Diablo meridian/base
line). It contains the Kirby area for the bay checkerspot discussed in
the species' Recovery Plan (Service 1998). The ridge, informally known
as Coyote Ridge, runs northwest to southeast, parallel to and east of
Highway 101 from Yerba Buena Road to Anderson Reservoir in Santa Clara
County, and forms the eastern slope of the Santa Clara Valley (U.S.
Geological Survey (USGS) 7.5 minute quadrangles San Jose East, Lick
Observatory, Santa Teresa Hills, and Morgan Hill. The ridge is not
named on these maps). Coyote Ridge also parallels the Silver Creek
Fault and Silver Creek itself. Extensive serpentine soil areas, and
four population areas for the bay checkerspot (Kirby, Metcalf, San
Felipe, and Silver Creek Hills), lie on or adjacent to this ridge and
fault system (Service 1998). Metcalf Canyon, Silver Creek, and
nonserpentine soil areas create natural divisions among these four
population areas. The Kirby unit is the southernmost of four critical
habitat units corresponding to the four population areas along Coyote
Ridge, and runs along this ridge east of Highway 101 and Coyote Creek
from Metcalf Canyon south to Anderson Lake. The northern boundary of
the Kirby unit abuts the Metcalf unit. The northwest tip of the Kirby
unit also connects to the Tulare Hill Corridor unit.
The Kirby critical habitat unit regularly supports one of the
largest populations of the bay checkerspot, and is considered one of
the centers of the species' Santa Clara County metapopulation. The
recovery plan considers protection of the area of the highest priority
for conservation of the species. The unit contains several hundred
acres of diverse serpentine grassland habitat as well as nectaring
areas, seasonal wetlands, and dispersal areas. The unit includes lands
within the limits of the City of San Jose, private lands in
unincorporated Santa Clara County, and small areas in the City of
Morgan Hill. Public lands in this unit include the Santa Clara County
Field Sports Park and portions of Santa Clara County Motorcycle Park,
Anderson Lake County Park, Coyote Creek Park, and lands of the Santa
Clara Valley Water District. A 101 ha (250 ac) reserve, leased by Waste
Management Inc. on behalf of the Kirby Conservation Trust to further
conservation of the bay checkerspot, also falls within the unit. The
Kirby Conservation Trust has funded extensive research on the bay
checkerspot for more than a decade at the lease site, greatly improving
our understanding of the ecology, population dynamics, and conservation
needs of the species (see literature cited in Service 1998).

Unit 9. Morgan Hill Unit

The Morgan Hill unit in Santa Clara County includes 374 ha (925 ac)
northwest of the City of Morgan Hill in Santa Clara County (T.9 S., R.2
E., T.9 S., R.3 E., Mount Diablo meridian/base line) . It lies less
than 3.2 km (2 mi) southwest of the Coyote Ridge unit and about 3.2 km
(2 mi) southeast of the Kalana Hills unit. This is the area described
as ``north of Llagas Avenue'' in our 1998 recovery plan. The unit is
partly within the limits of the City of Morgan Hill and partly on
private lands in unincorporated Santa Clara County. Murphy Springs
Park, a small city park, is within the unit. The Morgan Hill unit has
large areas of serpentine soils and grassland with a variety of slope
exposures, suitable for the bay checkerspot. The unit has been
documented to be occupied by the butterfly in the past, as well as in
more recent surveys in the past 2 to 3 years. Because of its large
habitat area and proximity to core populations of the bay checkerspot,
the recovery plan considers protection of this area essential to the
conservation of the species (Service 1998).

Unit 10. Metcalf Unit

This unit includes 1,616 ha (3,994 ac) in Santa Clara County, east
of Highway 101, south of Silver Creek Valley Road, north of Metcalf
Canyon, and west of Silver Creek (T.8 S., R.2 E., Mount Diablo
meridian/base line). The unit contains the Metcalf population area for
the bay checkerspot, one of the four largest habitat areas and three
largest current population centers for the butterfly (Service 1998).
Hundreds of acres of serpentine soils and thousands of bay checkerspots
occur within the unit. This area is considered one of the centers of
the species' Santa Clara County metapopulation. The recovery plan
considers protection of the area of the highest priority for
conservation of the butterfly. This unit adjoins the Kirby unit to the
south, San Felipe unit to the east, Silver Creek Hills unit to the
north, and Tulare Hill Corridor unit to the west, and provides crucial
habitat connectivity for butterfly dispersal among these areas. The
Metcalf unit lies in the City of San Jose and on private lands in
unincorporated Santa Clara County. Portions of Santa Clara County
Motorcycle Park, Coyote Creek Park, and lands of Santa Clara Valley
Water District fall within the unit.

[[Page 61224]]

Unit 11. San Felipe Unit

This unit includes 404 ha (998 ac) in Santa Clara County, southwest
of San Felipe Road and north of Metcalf Road (T.8 S., R.2 E., Mount
Diablo meridian/base line), primarily on private lands in
unincorporated county lands, but also within San Jose city limits. The
unit contains the San Felipe population area for the bay checkerspot,
one of the four largest habitat areas and three largest current
population centers for the butterfly (Service 1998). This area is
considered one of the centers of the species' Santa Clara County
metapopulation. The recovery plan considers protection of the area of
the highest priority for conservation of the butterfly. Several hundred
acres of serpentine soils occur within the unit with nectaring and
dispersal areas. We are not aware of any public lands in the unit.

Unit 12. Silver Creek Unit

The Silver Creek unit comprises 700 ha (1,730 ac), primarily within
the limits of the City of San Jose, but with some area on private lands
in unincorporated Santa Clara County (T.7 S., R.1 E., T.7 S., R.2 E.,
T.8 S., R.2 E., Mount Diablo meridian/base line). This unit is
surrounded by Highway 101 and Coyote Creek on the west, Yerba Buena
Road on the north, Silver Creek on the east and northeast, and Silver
Creek Valley Road on the south. The unit includes the Silver Creek
Hills population area for the bay checkerspot (Service 1998). It
includes nearly 400 ha (1,000 ac) of contiguous serpentine soils, as
well as other scattered serpentine outcrops, as well as habitat less
suitable for breeding but needed for nectar-feeding or dispersal. Small
areas of public lands in this unit include portions of Coyote Creek
Park and Silver Creek Linear Park. A 52 ha (128 ac) private bay
checkerspot preserve dedicated by Shea Homes, the Silver Creek Valley
Country Club Butterfly Habitat Reserve, lies within this unit. Also
included is the proposed Ranch on Silver Creek development, a 28 ha (70
ac) preserve proposed by William Lyon Homes (former Presley Homes), and
the proposed Ryland Homes Silver Ridge development and private open
space. Several electric transmission lines and two major natural gas
lines cross the unit. Not all of the area within the unit is capable of
supporting the butterfly or its primary constituent elements, and such
areas would not be subject to section 7 consultation. However, we have
included these areas in the critical habitat designation in the
interests of having a clear boundary that is readily located on the
ground, or because of mapping uncertainties.
In the last several years, a small population of the bay
checkerspot has been documented in the Silver Creek unit, and the area
has a long history of much larger populations. Portions of the unit
known to have been inhabited by the butterfly in the past have not been
surveyed recently, or are currently in degraded condition, or both. We
believe that the Silver Creek Hills population is likely to increase,
and that much of the degraded area could be restored to useful breeding
habitat. The Silver Creek unit has extensive, diverse, and high-quality
habitat, and represents the northernmost unit of the Santa Clara County
metapopulation. The Silver Creek unit provides a population reservoir
critical to the survival of the Santa Clara County metapopulation of
bay checkerspots--the larger and more viable of the two remaining
metapopulations (Service 1998).

Unit 13. San Vicente-Calero Unit

The San Vicente-Calero unit contains 759 ha (1,875 ac) within and
to the west of Calero County Park, Santa Clara County (T.8 S., R.1 E.,
T.8 S., R.2 E., T.9 S., R.1 E., and T.9 S., R.2 E., Mount Diablo
meridian/base line). This area supports a known population of the bay
checkerspot in a large area of good-quality habitat; other areas within
the unit that are apparently suitable for the butterfly have not been
surveyed. The unit is also within butterfly dispersal distance of the
Santa Teresa Hills unit (see below), which we consider to be capable of
supporting a very large population of the butterfly, and the Kalana
Hills unit (number 9, above), which are themselves accessible to and
from other units. Therefore we believe the San Vicente-Calero
population can contribute significantly to maintaining the Santa Clara
County metapopulation of the bay checkerspot. For all these reasons the
recovery plan considers protection of this area essential to the
conservation of the species. The unit is south of McKean Road and east
of the town of New Almaden, Almaden Road, and Alamitos Creek. It lies
about 1.6 km (1 mi) south of the Santa Teresa unit and about 3.2 km (2
mi) west of the Kalana Hills unit. Portions of the unit outside the
county park are within the limits of the City of San Jose.

Unit 14. Santa Teresa Hills Unit

The Santa Teresa Hills unit includes 1,821 ha (4,500 ac) in Santa
Clara County (T.8 S., R.1 E. and T.8 S., R.2 E., Mount Diablo meridian/
base line) with extensive areas of serpentine soils. Portions of the
Santa Teresa Hills are known to support the butterfly now, and have
supported the species in the past, but no current comprehensive survey
of the butterfly in the area is available. We believe that the Santa
Teresa Hills could support a significant population of bay
checkerspots. In addition to adding a fifth substantial population to
the Santa Clara County metapopulation, conservation and management of
the Santa Teresa Hills population would support development of a strong
population of the butterfly in a slightly cooler, moister area of the
county, at a site that may experience less air pollution than the more
eastern units. The Santa Teresa Hills critical habitat unit is intended
to include most undeveloped habitat in the area, as well as intervening
areas that are unsurveyed or less suitable but needed for dispersal
among higher-quality areas. The unit lies north of Bailey Avenue,
McKean Road, and Almaden Road, south of developed areas of the city of
Santa Clara, and west of Santa Teresa Boulevard. The unit abuts the
Tulare Hill Corridor unit.

Unit 15. Tulare Hill Corridor Unit

The Tulare Hill Corridor unit, 355 ha (876 ac) in Santa Clara
County, connects the Coyote Ridge (Kirby and Metcalf, and through them,
San Felipe and Silver Creek) and Santa Teresa units. Tulare Hill is a
prominent serpentine hill that rises from the middle of the Santa Clara
Valley in southern San Jose, west of the crossing of Metcalf Road and
Highway 101 (T.8 S., R.2 E., Mount Diablo meridian/base line).
Extensive habitat on the hill is currently occupied by the bay
checkerspot, and is essential both as a population center and for
dispersal across the valley. The Metcalf and Kirby populations of the
bay checkerspot lie less than 1 kilometer (0.62 mi) to the northeast,
separated by a major highway and a narrow band of other unfavorable
habitat. The Santa Teresa Hills population area for the species lies
about 2 km (1.2 mi) to the southwest, with dispersal habitat in
between. We believe the long-term viability of the bay checkerspot
depends on the presence of a corridor for dispersal of adults to and
from the Santa Teresa Hills and Coyote Ridge (Service 1998). Tulare
Hill is an ideal location for such a corridor because of the narrow
extent of the valley and the development in this location, the presence
of high elevations on the hill that may attract butterflies over busy
roads and developed areas, and the presence of suitable habitat on
Tulare Hill itself. Migrant butterflies from either Santa Teresa Hills
or Coyote Ridge may settle on Tulare Hill, contributing individuals and
genetic

[[Page 61225]]

diversity to the population there, and adults from Tulare Hill may
migrate to the adjacent habitat areas.
Public lands within the designated unit include parts of Coyote
Creek Park, Metcalf Park, and Santa Teresa County Park. Roughly half of
Tulare Hill itself is within the limits of the City of San Jose, the
remainder on private lands in unincorporated Santa Clara County.
Several major electrical transmission lines cross the unit. Some areas
within the unit are not inhabited by bay checkerspot individuals but
can function as dispersal corridor.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires that Federal agencies, including
the Service, must ensure that actions they fund, authorize, or carry
out do not destroy or adversely modify critical habitat to the extent
that the action appreciably diminishes the value of the critical
habitat for the survival and recovery of the species. Individuals,
organizations, States, local governments, and other non-Federal
entities are affected by the designation of critical habitat only if
their actions occur on Federal lands, require a Federal permit,
license, or other authorization, or involve Federal funding.
Under section 7(a) of the Act, Federal agencies, including the
Service, evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is designated or proposed. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) and regulations at 50 CFR
402.10 requires Federal agencies to confer with us on any action that
is likely to jeopardize the continued existence of a proposed species
or result in destruction or adverse modification of proposed critical
habitat. Conference reports provide conservation recommendations to
assist the agency in eliminating conflicts that may be caused by the
proposed action. The conservation recommendations in a conference
report are advisory.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
a biological opinion that is prepared according to 50 CFR 402.14, as if
critical habitat were designated. If such designation occurs, we may
adopt the formal conference report as a biological opinion, if no
significant new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)).
When a species is listed or critical habitat is designated, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
consultation with us. Through this consultation, we would advise the
agencies whether the permitted actions would likely jeopardize the
continued existence of the species or destroy or adversely modify
critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. Reasonable and prudent alternatives
are defined at 50 CFR 402.02 as alternative actions identified during
consultation that can be implemented in a manner consistent with the
intended purpose of the action, that are consistent with the scope of
the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that the Director
believes would avoid the likelihood of jeopardizing the continued
existence of listed species or resulting in the destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. 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 critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conferencing with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Activities on private or State lands requiring a permit from a
Federal agency, such as a permit from the U.S. Army Corps of Engineers
(Corps) under section 404 of the Clean Water Act, or a section
10(a)(1)(B) permit from the Service, or some other Federal action,
including funding (e.g., from the Federal Highway Administration (FHWA)
or Federal Emergency Management Agency (FEMA)) will also be subject to
the section 7 consultation process. Federal actions not affecting
listed species or critical habitat, and actions on non-Federal lands
that are not federally funded, authorized, or permitted do not require
section 7 consultation. Not all of the areas within some of the units
are capable of supporting the butterfly or its primary constituent
elements, and such areas would not be subject to section 7
consultation. However, in the interests of having a clear boundary that
is readily located on the ground, or because of mapping uncertainties,
we have included some areas that may not be critical habitat within
some units described below.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the value of critical
habitat for the survival and recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would almost always result in jeopardy to the species
concerned, particularly when the area of the proposed action is
occupied by the species concerned. Designation of critical habitat in
areas occupied by the bay checkerspot is not likely to result in a
significant regulatory burden above that already in place due to the
presence of the listed species. For some previously reviewed actions in
instances where critical habitat is subsequently designated. In those
cases where activities occur on designated critical habitat where bay
checkerspot are not found at the time of the action, an additional
section 7 consultation with the Service not previously required may be
necessary for actions funded, authorized, or carried out by Federal
agencies.
Section 4(b)(8) of the Act requires us to briefly describe and
evaluate in any proposed or final regulation that

[[Page 61226]]

designates critical habitat those activities involving a Federal action
that may adversely modify such habitat or that may be affected by such
designation. When determining whether any of these activities may
adversely modify critical habitat, we base our analysis on the effects
of the action on the entire critical habitat area and not just on the
portion where the activity will occur. Adverse effects on constituent
elements or segments of critical habitat generally do not result in an
adverse modification determination unless that loss, when added to the
environmental baseline, is likely to appreciably diminish the
capability of the critical habitat to satisfy essential requirements of
the species. In other words, activities that may destroy or adversely
modify critical habitat include those that alter the primary
constituent elements (defined above) to an extent that the value of
critical habitat for both the survival and recovery of the bay
checkerspot is appreciably diminished.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and require that a section
7 consultation be conducted include, but are not limited to:
(1) Ground disturbance, including but not limited to, grading,
discing, ripping and tilling;
(2) Removing, destroying, or altering vegetation (e.g., including
altering grazing practices and seeding);
(3) Water contracts, transfers, diversion, impoundment,
application, or conveyance, groundwater pumping, irrigation, or other
activity that wets or inundates habitat, creates barriers or deterrents
to dispersal, or results in habitat being converted to lower values for
the butterfly (e.g., conversion to urban development, vineyards,
landscaping, etc.);
(4) Sale, exchange, or lease of critical habitat that is likely to
result in the habitat being destroyed or degraded;
(5) Recreational activities that significantly deter the use of
critical habitat by bay checkerspots or alter habitat through
associated maintenance activities (e.g., off-road vehicle parks, golf
courses, trail construction or maintenance);
(6) Construction activities that destroy or degrade critical
habitat (e.g., urban and suburban development, building of recreational
facilities such as off-road vehicle parks and golf courses, road
building, drilling, mining, quarrying and associated reclamation
activities); and
(7) Application of pesticides, herbicides, fertilizers, or other
chemicals or biological agents.
Any of the above activities that appreciably diminish the value of
critical habitat to the degree that they affect the survival and
recovery of the bay checkerpot may be considered an adverse
modification of critical habitat. We note that such activities may also
jeopardize the continued existence of the species.
If you have questions regarding whether specific activities will
constitute destruction or adverse modification of critical habitat
resulting from a Federal action, contact the Field Supervisor,
Sacramento Fish and Wildlife Office (see ADDRESSES section). Requests
for copies of the regulations on listed wildlife, and inquiries about
prohibitions and permits may be addressed to the U.S. Fish and Wildlife
Service, Branch of Endangered Species, 911 N.E. 11th Ave, Portland, OR
97232 (telephone 503/231-2063; facsimile 503/231-6243).

Relationship to Habitat Conservation Plans

Section 4(b)(2) of the Act allows us broad discretion to exclude
from critical habitat designation areas where the benefits of exclusion
outweigh the benefits of designation, provided the exclusion will not
result in the extinction of the species. We believe that in most
instances the benefits of excluding HCPs from critical habitat
designations will outweigh the benefits of including them.
The benefits of including HCP lands in critical habitat are
normally small. Activities in designated critical habitat that may
affect critical habitat require consultation under section 7 of the
Act. This is the major benefit of designating lands as critical
habitat. Consultation would ensure that adequate protection is provided
to avoid adverse modification of critical habitat. However, our
experience indicates that where HCPs are in place, this benefit is
small or non-existent. Currently approved and permitted HCPs are
designed to ensure the long-term survival of covered species within the
plan area. The lands that we would find essential for the conservation
of the species, and thus fall under the first prong of the definition
of critical habitat would, where we have approved HCPs and the species
is a covered species under the HCP, normally be protected in reserves
and other conservation lands. HCPs and their implementation agreements
outline management measures and protections for conservation lands that
are crafted to protect, restore, and enhance their value as habitat for
covered species.
In addition, an HCP application must itself be consulted upon.
While this consultation will not look specifically at the issue of
adverse modification of critical habitat, it will look at the very
similar concept of jeopardy to the listed species in the plan area.
Since HCPs, particularly large regional HCPs, address land use within
the plan boundaries, habitat issues within the plan boundaries have
been thoroughly addressed in the HCP and the consultation on the HCP.
Our experience is that under most circumstances consultations under the
jeopardy standard will reach the same result as consultations under the
adverse modification standard. Additional measures to protect the
habitat from adverse modificationare not likely to be required.
Further, HCPs typically provide for greater conservation benefits
to a covered species than section 7 consultations because HCPs assure
the long term protection and management of a covered species and its
habitat, and funding for such management through the standards found in
the 5-Point Policy for HCPs (64 FR 35242) and the HCP No Surprises
regulation (63 FR 8859). Such assurances are typically not provided by
section 7 consultations which, in contrast to HCPs, often do not commit
the project proponent to long term special management or protections.
Thus the lands covered by a consultation typically will not provide the
extensive benefits of an HCP.
The development and implementation of HCPs provide other important
conservation benefits, including the development of biological
information to guide conservation efforts and assist in species
recovery and the creation of innovative solutions to conserve species
while allowing for development. The educational benefits of critical
habitat, including informing the public of areas that are important for
the long-term survival and conservation of the species, are essentially
the same as those that would occur from the public notice and comment
procedures required to establish an HCP, as well as the public
participation that occurs in the development of many regional HCPs. For
these reasons, then, we believe that designation of critical habitat
has little benefit in areas covered by HCPs.
In contrast, the benefits of excluding HCPs from being designated
as critical habitat are more significant. In response to other critical
habitat proposals, we have received comments about the additional
regulatory and economic burden of designating critical habitat. These
include the need for additional consultation with the Service and the

[[Page 61227]]

need for additional surveys and information gathering to complete these
consultations. HCP applicants have also stated that they are concerned
that third parties may challenge HCPs on the basis that they result in
adverse modification or destruction of critical habitat.
The benefits of excluding HCPs include relieving landowners,
communities and counties of any additional minor regulatory review that
might be imposed by critical habitat. This benefit is important given
our past representations that once an HCP is negotiated and approved by
us after public comment, activities consistent with the plan will
satisfy the requirements of section 10(a)(1)(B) of the Act. Many HCPs,
particularly large regional HCPs, take many years to develop and, upon
completion, become regional conservation plans that are consistent with
the recovery of covered species. Many of these regional plans benefit
many species, both listed and unlisted. Imposing an additional
regulatory review after HCP completion not only results in minor, if
any, additional benefit to the species, it may jeopardize conservation
efforts and partnerships in many areas and could be viewed as a
disincentive to those developing HCPs. Excluding HCPs provides us with
an opportunity to streamline regulatory compliance and confirms
regulatory assurances for HCP participants.
Another benefit of excluding HCPs is that it would encourage the
continued development of partnerships with HCP participants, including
states, local governments, conservation organizations, and private
landowners, that together can implement conservation actions we would
be unable to accomplish alone. By excluding areas covered by HCPs from
critical habitat designation, we preserve these partnerships, and, we
believe, set the stage for more effective conservation actions in the
future.
In general, then we believe the benefits of critical habitat
designation to be small in areas covered by approved HCPs. We also
believe that the benefits of excluding HCPs from designation are small,
but significant. Because we believe that, the small benefits of
inclusion weighed against the benefits of exclusion, including the
benefits of relieving property owners of an additional layer of
approvals and regulation, together with the encouragement of
conservation partnerships would generally result in HCPs being excluded
from critical habitat designation under Section 4(b)(2) of the Act.
Given this general analysis, we expect to analyze the specific
benefits in each particular critical habitat designation because not
all HCPs are alike with regard to species coverage and design. Within
this designation we need to evaluate completed and legally operative
HCPs in the range of the California gnatcatcher to determine whether
the benefits of excluding these particular areas outweigh the benefits
of including them.
The San Bruno Mountain Area HCP overlaps with the proposed critical
habitat designation on San Bruno Mountain. The butterfly is believed to
have been extirpated from the mountain since about 1986. The San Bruno
Mountain Area HCP does not discuss the bay checkerspot in detail, and
the Incidental Take Permit for this HCP currently does not include the
bay checkerspot butterfly. Therefore, we have not excluded the area
covered by this HCP from the proposed critical habitat designation. Any
future Service involvement in activities on San Bruno Mountain, such as
habitat restoration, may require section 7 consultation if there are
likely to be effects on bay checkerspot critical habitat.
The Pacific Gas & Electric (PG & E) Metcalf-Edenvale/Metcalf-Mont
Vista HCP covers only about 4 ha (10 ac) in the Santa Teresa Hill, San
Vicente-Calero, and Tulare Hill Corridor proposed critical habitat
units. Because the HCP expires in November 2001, and the permitted
project is expected to be complete before any final critical habitat
designation, we are not excluding lands covered under this short-term
HCP from our critical habitat proposal. We reviewed the project with PG
& E and determined that the remaining work under the HCP will not cause
destruction or adverse modification of proposed critical habitat;
therefore, no formal conference on the remaining work will be
necessary.
In the event that future HCPs covering the bay checkerspot are
developed within the boundaries of designated critical habitat, we will
work with applicants to ensure that the HCPs provide for protection and
management of habitat areas essential for the conservation of the bay
checkerspot by either directing development and habitat modification to
nonessential areas or appropriately modifying activities within
essential habitat areas so that such activities will not adversely
modify the primary constituent elements. The HCP development process
provides an opportunity for more intensive data collection and analysis
regarding the use of particular habitat areas by the bay checkerspot.
The process also enables us to conduct detailed evaluations of the
importance of such lands to the long term survival of the species in
the context of constructing a biologically configured system of
interlinked habitat blocks.
We will provide technical assistance and work closely with
applicants throughout the development of future HCPs to identify lands
essential for the long-term conservation of the bay checkerspot and
appropriate management for those lands. Preliminary HCPs are being
discussed for listed and non-listed species within the range of the bay
checkerspot in areas proposed herein as critical habitat. These HCPs,
coupled with appropriate adaptive management, should provide for the
conservation of the species.

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of the
exclusions outweigh the benefits of specifying the areas as critical
habitat. We cannot exclude the areas from critical habitat when the
exclusion will result in the extinction of the species. We will conduct
an analysis of the economic impacts of designating these areas as
critical habitat prior to making a final determination. When completed,
we will announce the availability of this economic analysis with a
notice in the Federal Register; if necessary, we will reopen the
comment period at that time.

Public Comments Solicited

We intend that any final action resulting from this proposal be as
accurate and as effective as possible. Therefore, we solicit comments
or suggestions from the public, other concerned governmental agencies,
the scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefits of designation will outweigh any benefits of
exclusion;
(2) Specific information on the amount and distribution of bay
checkerspot butterflies and their habitat, and what habitat is
essential to the conservation of the species and why;
(3) Land use practices and current or planned activities in the
subject areas

[[Page 61228]]

and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families; and
(5) Economic and other values associated with designating critical
habitat for the bay checkerspot such as those derived from
nonconsumptive uses (e.g., hiking, camping, birdwatching, enhanced
watershed protection, improved air quality, increased soil retention,
``existence values,'' and reductions in administrative costs).
Our practice is to make comments available for public review during
regular business hours, including names and home addresses of
respondents. Individual respondents may request that we withhold their
home address from the rulemaking record, which we will honor to the
extent allowable by law. In some circumstances, we would withhold from
the rulemaking record a respondent's identity, as allowable by law. If
you wish for us to withhold your name and/or address, you must state
this prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we will seek the expert opinions of at least three appropriate
and independent specialists regarding this proposed rule. The purpose
of this review is to ensure listing decisions are based on
scientifically sound data, assumptions, and analyses. We will send
these peer reviewers copies of this proposed rule immediately following
publication in the Federal Register. We will invite these peer
reviewers to comment, during the public comment period, on the specific
assumptions and conclusions regarding the proposed designation of
critical habitat.
We will consider all comments and information received during the
60-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal,
if requested. Given the high likelihood of a request for a hearing and
the need to publish a final determination within 120 days of this
proposed rule, we scheduled a public hearing (see DATES and ADDRESSES
sections).
Written comments submitted during the comment period receive equal
consideration with those comments presented at a public hearing.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical language or jargon that interferes with the clarity? (3) Does
the format of the proposed rule (grouping and order of sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the proposed rule in the SUPPLEMENTARY INFORMATION
section of the preamble helpful in understanding the proposed rule?
What else could we do to make the proposed rule easier to understand?
Send any comments that concern how we could make this proposed rule
easier to understand to the Field Supervisor, Sacramento Fish and
Wildlife Office (see ADDRESSES section of this rule).

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a
significant rule and was reviewed by the Office of Management and
Budget (OMB). We are preparing a draft analysis of this proposed
action, which will be available for public comment, to determine the
economic consequences of designating the specific areas as critical
habitat. The availability of the draft economic analysis will be
announced in the Federal Register and in local newspapers so that it is
available for public review and comments.
(a) This rule will not have an annual economic effect of $100
million or more or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. The bay
checkerspot butterfly was listed as a threatened species in 1987. In
fiscal years 1987 through 1999, we conducted 4 formal section 7
consultations with Federal agencies to ensure that their actions would
not jeopardize the continued existence of the butterfly.
Under the Act, critical habitat may not be adversely modified by a
Federal agency action; critical habitat does not impose any
restrictions on non-Federal persons unless they are conducting
activities funded or otherwise sponsored, authorized, or permitted by a
Federal agency (see Table 2 below). Section 7 requires Federal agencies
to ensure that they do not jeopardize the continued existence of the
species. Based upon our experience with the species and its needs, we
conclude that any Federal action or authorized action that could
potentially cause an adverse modification of the proposed critical
habitat would currently be considered as ``jeopardy'' under the Act in
areas occupied by the bay checkerspot. Accordingly, the designation of
currently occupied areas as critical habitat does not have any
incremental impacts on what actions may or may not be conducted by
Federal agencies or non-Federal persons that receive Federal
authorization or funding. Designation of unoccupied areas as critical
habitat may have impacts on what actions may or may not be conducted by
Federal agencies or non-Federal persons who receive Federal
authorization or funding. We will evaluate any impact through our
economic analysis (under section 4 of the Act; see Economic Analysis
section of this rule). Non-Federal persons that do not have a Federal
``sponsorship'' of their actions are not restricted by the designation
of critical habitat (however, they continue to be bound by the
provisions of the Act concerning ``take'' of the species).

[[Page 61229]]

Table 2.--Impacts of Bay Checkerspot Butterfly Listing and Critical
Habitat Designation
------------------------------------------------------------------------
Additional
activities
Activities potentially potentially
Categories of activities affected by species affected by
listing only critical habitat
designation\1\
------------------------------------------------------------------------
Federal Activities Potentially Activities conducted Activities by
Affected\2\. by the Army Corps of these Federal
Engineers, Bureau of Agencies in any
Reclamation, unoccupied
Environmental critical
Protection Agency, habitat areas.
Federal Highway
Administration.
Private or other non-Federal Activities that Funding,
Activities Potentially require a Federal authorization,
Affected\3\. action (permit, or permitting
authorization, or actions by
funding) and may Federal
remove or destroy bay Agencies in any
checkerspot butterfly unoccupied
habitat by critical
mechanical, chemical, habitat areas.
or other means (e.g.,
grading, discing,
ripping, and tilling,
water diversion,
impoundment,
groundwater pumping,
irrigation,
construction, road
building, herbicide
application,
recreational use,
etc.) or appreciably
decrease habitat
value or quality
through indirect
effects (e.g., edge
effects, invasion of
exotic plants or
animals,
fragmentation of
habitat).
------------------------------------------------------------------------
\1\ This column represents activities potentially affected by the
critical habitat designation in addition to those activities
potentially affected by listing the species.
\2\ Activities initiated by a Federal agency.
\3\ Activities initiated by a private or other non-Federal entity that
may need Federal authorization or funding.

(b) This rule will not create inconsistencies with other agencies'
actions. As discussed above, Federal agencies have been required to
ensure that their actions do not jeopardize the continued existence of
the bay checkerspot since the listing in 1987. The prohibition against
adverse modification of critical habitat is not expected to impose any
additional restrictions to those that currently exist in areas of
occupied habitat. We will evaluate any impact of designating unoccupied
habitat areas through our economic analysis. Because of the potential
for impacts on other Federal agency activities, we will continue to
review this proposed action for any inconsistencies with other Federal
agency actions.
(c) This proposed rule, if made final, will not materially affect
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients. Federal agencies are currently
required to ensure that their activities do not jeopardize the
continued existence of the species, and, as discussed above, we do not
anticipate that the adverse modification prohibition (resulting from
critical habitat designation) will have any incremental effects in
areas of occupied habitat.
(d) This rule will not raise novel legal or policy issues. The
proposed rule follows the requirements for determining critical habitat
contained in the Act.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

In the economic analysis (required under section 4 of the Act), we
will determine whether designation of critical habitat will have a
significant effect on a substantial number of small entities. As
discussed under Regulatory Planning and Review above, this rule is not
expected to result in any restrictions in addition to those currently
in existence for areas of occupied critical habitat. We will also
evaluate whether critical habitat designation of unoccupied areas will
significantly affect a substantial number of small entities. As
indicated on Table 1 (see Proposed Critical Habitat Designation
section), we designated property owned by State and local governments,
and private property.
Within these areas, the types of Federal actions or authorized
activities that we have identified as potential concerns are:
(1) Regulation of activities affecting waters of the United States
by the Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, execution of water contracts, water
delivery, transfer of Federal project water, damming, diversion, and
channelization by the Bureau of Reclamation or the Corps;
(3) Pesticide and air quality regulation by the Environmental
Protection Agency; and
(4) Funding and regulation of road construction by the FHWA.
Many of these activities sponsored by Federal agencies within the
proposed critical habitat areas are carried out by small entities (as
defined by the Regulatory Flexibility Act) through contract, grant,
permit, or other Federal authorization. As discussed above, these
actions are currently required to comply with the listing protections
of the Act, and the designation of critical habitat is not anticipated
to have any additional effects on these activities.
For actions on non-Federal property that do not have a Federal
connection (such as funding or authorization), the current restrictions
concerning take of the species remain in effect, and this rule will
have no additional restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

In the economic analysis, we will determine whether designation of
critical habitat will cause (a) any effect on the economy of $100
million or more, (b) any increases in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (c) any significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. As discussed above, we anticipate that the designation of
critical habitat will not have any additional effects on these
activities in areas of critical habitat occupied by the species.
Designation of unoccupied areas as critical habitat may have impacts on
what actions may or may not be conducted by Federal agencies or non-
Federal persons who receive Federal authorization or funding. We will
evaluate any impact through our economic analysis.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
August 25, 2000 et seq.):
(a) We believe this rule will not ``significantly or uniquely''
affect small governments. A Small Government Agency Plan is not
required. Small governments will be affected only to the extent that
any programs having Federal funds, permits, or other authorized
activities must ensure that their actions will not adversely affect the
critical habitat. However, as discussed above, these actions are
currently subject to equivalent restrictions through the

[[Page 61230]]

listing protections of the species, and no further restrictions are
anticipated to result from critical habitat designation of occupied
areas. In our economic analysis, we will evaluate whether designation
of unoccupied areas has any significant effect on small governments.
(b) This rule will not produce a Federal mandate of $100 million or
greater in any year; that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. The designation of
critical habitat imposes no obligations on State or local governments.

Takings

In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required. As discussed above, the designation of critical habitat
affects only Federal agency actions. The rule will not increase or
decrease the current restrictions on private property concerning take
of the bay checkerspot. Due to current public knowledge of the species'
protection under the Act, the prohibition against take of the species
both within and outside of the designated areas, and the fact that
critical habitat provides no incremental restrictions in areas of
occupied critical habitat, we do not anticipate that property values
will be affected by the critical habitat designation. Additionally,
critical habitat designation does not preclude development of habitat
conservation plans and issuance of incidental take permits. Landowners
in areas that are included in the designated critical habitat will
continue to have opportunity to utilize their property in ways
consistent with the survival of the bay checkerspot butterfly.

Federalism

In accordance with Executive Order 13132, the 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 proposal with appropriate State
resource agencies in California. The designation of critical habitat in
areas currently occupied by the bay checkerspot imposes no additional
restrictions to those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The designation may have some benefit to these governments in that the
areas essential to the conservation of the species are more clearly
defined, and the primary constituent elements of the habitat necessary
to the survival of the species are specifically identified. While
making this definition and identification does not alter where and what
federally sponsored activities may occur, it may assist these local
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We propose to designate critical habitat in accordance
with the provisions of the Act and plan a public hearing on the
proposed designation during the comment period. The rule uses standard
property descriptions and identifies the primary constituent elements
within the designated areas to assist the public in understanding the
habitat needs of the bay checkerspot butterfly.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any information collection requirements
that requires Office of Management and Budget approval under the
Paperwork Reduction Act.

National Environmental Policy Act

We determined that we do not need to prepare an Environmental
Assessment and/or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969 in connection with
regulations adopted pursuant to section 4(a) of the Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).

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) and 512 DM 2, we understand that Federally
recognized Tribes must be related to on a Government-to-Government
basis.
We are not aware of any Tribal lands essential for the conservation
of the bay checkerspot. Therefore, we are not proposing to designate
critical habitat for the bay checkerspot butterfly on Tribal lands.

References Cited

Emmel, J. F., T. C. Emmel, and S. O. Mattoon. 1998. The types of
California butterflies named by Jean Alphonse Boisduval: designation
of lectotypes and a neotype, and fixation of type localities. Pages
3-76 in: Emmel, T.C. (ed.), Systematics of Western North American
Butterflies. Mariposa Press, Gainesville, Florida.
Harrison, S. P. 1989. Long-distance dispersal and colonization in
the bay checkerspot butterfly, Euphydryas editha bayensis. Ecology
70:1236-1243.
Launer, A. E., D. D. Murphy, C. L. Boggs, J. F. Baughman, S. B.
Weiss, and P. R. Ehrlich. 1993. Puddling behavior by Bay checkerspot
butterflies (Euphydryas editha bayensis). Journal of Research on the
Lepidoptera 32:45-52.
Mattoni, R., G. F. Pratt, T. R. Longcore, J. F. Emmel, and J. N.
George. Published 1997 for the year 1995. The endangered quino
checkerspot butterfly, Euphydryas editha quino (Lepidoptera:
Nymphalidae). Journal of Research on the Lepidoptera 34:99-118.
U.S. Soil Conservation Service. 1974. Soil Survey of Eastern Santa
Clara Area. U.S. Department of Agriculture, Washington, DC.
U.S. Fish and Wildlife Service. 1998. Recovery plan for serpentine
soil species of the San Francisco Bay area. U.S. Fish and Wildlife
Service, Portland, Oregon. 330+ pp.
Weiss, S. B. 1999. Cars, cows, and checkerspot butterflies: nitrogen
deposition and management of nutrient-poor grasslands for a
threatened species. Conservation Biology 13:1476-1486.
Weiss, S. B., and A. E. Launer. 2000. Annual report to the trustees
of the Kirby Canyon Conservation Agreement--Summary of activities
conducted in 1999 and early spring 2000. Unpublished report, on file
at Sacramento Fish and Wildlife Office.

Authors

The primary authors of this notice are the staff of the Sacramento
Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

For the reasons given in the preamble above, we propose to amend 50
CFR part 17 as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. In Sec. 17.11(h) revise the entry for ``Butterfly, bay
checkerspot,'' under ``INSECTS,'' to read as follows:

[[Page 61231]]

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate popu-
-------------------------------------------------------- lation where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
INSECTS

* * * * * * *
Butterfly, bay checkerspot....... Euphydryas editha U.S.A. (CA)........ NA................. T 288 17.95(i) NA
bayensis.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Amend Sec. 17.95(i) by adding critical habitat for the bay
checkerspot butterfly (Euphydryas editha bayensis) in the same
alphabetical order as this species occurs in Sec. 17.11(h), to read as
follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(i) Insects
Bay Checkerspot Butterfly (Euphydryas editha bayensis)
1. Critical habitat units are depicted for San Mateo and Santa
Clara counties, California, on the maps below.
2. Within these areas, the primary constituent elements are those
habitat components that are essential for the primary biological needs
of foraging, sheltering, breeding, maturation and dispersal. The
primary constituent elements are areas of open grassland; stands of
Plantago erecta, Castilleja exserta, or Castilleja densiflora; spring
flowers providing nectar; pollinators of the bay checkerspot's food and
nectar plants; soils derived from serpentinic rock; stable holes or
cracks in the soil and surface rocks or rock outcrops; wetlands
providing moisture during times of spring drought; and space for
dispersal between habitable areas. In addition, topography with varied
slopes and aspects is a primary constituent element to be conserved
when it is present in combination with one or more of the primary
constituent elements above.
3. Within these areas, existing features and structures, such as
buildings, roads, railroads, urban development, and other features not
containing primary constituent elements, are not considered critical
habitat.

[[Page 61232]]

Unit 1 (Edgewood Park/Triangle Unit): San Mateo County, California.
Bounded as follows: beginning at the intersection of Edgewood Road and
Canada Road; southwesterly, south, and southeasterly along the light-
duty extension of Edgewood Road southwest of Canada Road to its
intersection with an unnamed intermittent drainage tributary to Upper
Crystal Springs Reservoir as shown on the USGS Woodside 7.5 minute
quadrangle (1961, photorevised 1968 and 1973); then southwesterly along
this drainage to its intersection with I-280; then southeasterly along
the eastern edge of pavement of I-280 to a point due southwest of the
southernmost corner of Edgewood Natural Preserve (this just south of a
substation shown on the Woodside quadrangle, where the State Fish and
Game Refuge boundary meets Canada Road and an elevation of 161 m (528
ft) is marked); then due northeast to the southernmost corner of
Edgewood Natural Preserve; then northeast along the southeast boundary
of Edgewood Natural Preserve to the 159 m (520 ft) elevation contour as
shown on the Woodside quadrangle; then northwesterly along this contour
to its intersection with Edgewood Road; then southwesterly along the
south edge of pavement of Edgewood Road to the starting point.
[GRAPHIC] [TIFF OMITTED] TP16OC00.000

[[Page 61233]]

Unit 2 (Jasper Ridge Unit): San Mateo County, California. Bounded
as follows: to the east, north, and west by the 110 m (360 ft)
elevation contour around Jasper Ridge (USGS Palo Alto 7.5 minute
quadrangle, 1991); and to the south by the current boundary of the
Jasper Ridge Biological Reserve, which is largely coincident with the
northern boundary of the town of Portola Valley.
[GRAPHIC] [TIFF OMITTED] TP16OC00.001

[[Page 61234]]

Unit 3 (San Bruno Mountain Unit): San Mateo County, California. All
area on San Bruno Mountain above the 152 m (500 ft) elevation contour
and east of the western Pacific Gas and Electric transmission corridor
(this transmission corridor runs south to southwesterly from the west
end of Guadalupe Valley to the South San Francisco/Colma City border)
as shown on the USGS San Francisco South 7.5 minute quadrangle, 1956).
[GRAPHIC] [TIFF OMITTED] TP16OC00.002

[[Page 61235]]

Unit 4 (Bear Ranch Unit): Santa Clara County, California. Those
portions of section 32, T.9 S., R.4 E. and section 5, T.10 S., R.4 E.,
westerly of Coyote Reservoir Road--a light-duty road shown but not
named on the USGS Gilroy 7.5 minute quadrangle (1955, photorevised 1968
and 1973).
Unit 5 (San Martin Unit): Santa Clara County, California. Bounded
on the north by a line running due east-west through a point 305 m
(1000 ft) due north of a hilltop marked 239 m (785 ft) in elevation on
the USGS Mt. Madonna 7.5 minute quadrangle (1955, photorevised 1968).
This hilltop is near latitude 37 degrees 4 minutes 42 seconds north,
longitude 121 degrees 38 minutes 19 seconds west (Hayes Lane, not shown
on the Mt. Madonna quadrangle, also runs in the vicinity of this
hilltop). The north boundary runs as far east as its intersection with
the 97 m (320 ft) elevation contour west of Coolidge Avenue as shown on
the Mt. Madonna quadrangle. From this point the boundary runs
southeasterly, southerly, and westerly following this contour,
continuing onto the USGS Gilroy 7.5 minute quadrangle (1955,
photorevised 1968 and 1973) and back to its intersection with longitude
121 degrees 37 minutes 30 seconds west (the junction between the two
quadrangles). The unit is bounded on the south-southwest by a straight
line running from this latter point for a distance of about 2,228 m
(7,310 ft) slightly south of west-northwest (bearing 291.5 degrees) to
a hilltop labeled 152 m (495 ft) in elevation on the Mt. Madonna
quadrangle. The west boundary of the unit runs from this hilltop due
north-northeast (bearing 22.5 degrees) to the north boundary.

[[Page 61236]]

[GRAPHIC] [TIFF OMITTED] TP16OC00.003

[[Page 61237]]

Unit 6 (Communications Hill Unit): Santa Clara County, California.
Starting at a point on the 73 m (240 ft) elevation contour due south of
the 133 m (435 ft) summit of Communications Hill, the Communications
Hill unit is bounded to the south by the 73 m (240 ft) elevation
contour as shown on the USGS San Jose East 7.5 minute quadrangle map
(1961, photorevised 1980; the hill is not named on this map but the
county communications center is shown), as far west as its intersection
with Highway 87 (this highway is not shown on the San Jose East
quadrangle); then south along Highway 87 (west edge of pavement) to the
55 m (180 ft) elevation contour (all contours in this description are
as shown on the San Jose East quadrangle); then south, west, and north
along this contour to a point due west of the southernmost point of the
southern of the two water tanks on the top of the hill west of Highway
87; then due east for a distance of about 238 m (780 ft) to a point due
south of the easternmost point of the eastern of the two water tanks;
then due north for about 439 m (1,440 ft) to the intersection with the
85 m (280 ft) elevation contour; then slightly north of east on a
straight line to the southern corner of the property of the county
communications facility; then on a line to the northern corner of this
property; then due southwest to Carol Drive (not named on the San Jose
East quadrangle); then slightly north of northwest (bearing 322
degrees) to the 55 m (180 ft) elevation contour; then along this
contour easterly and northeasterly until it reaches the second dirt
road as shown on the San Jose East quadrangle; then due northeast
across the Southern Pacific railroad tracks to the 55 m (180 ft)
elevation contour; then northwesterly and northeasterly along this
contour to the boundary of Oak Hill Memorial Park cemetery; then
following the cemetery boundary southeasterly, skirting a hill summit
marked 98 m (323 ft) on the San Jose East quadrangle, to the first 67 m
(220 ft) elevation contour southeast of this summit; then due southwest
to the 49 m (160 ft) elevation contour immediately west of the railroad
tracks; then southeasterly along this contour as shown on the 1961 San
Jose East quadrangle to its intersection with Hillsdale Avenue; then
southwesterly along Hillsdale Avenue (north edge of pavement) to its
intersection with Vista Park Drive (not shown on the San Jose East
quadrangle); then due north to the 73 m (240 ft) elevation contour;
then westerly along this contour to the starting point.

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Unit 7 (Kalana Hills Unit): Santa Clara County, California. Bounded
as follows: beginning at the intersection of San Bruno Avenue and the
94 m (310 ft) elevation contour as shown on USGS Morgan Hill 7.5 minute
topographic quadrangle (1955, photorevised 1968); by a line running due
northwest to the 79 m (260 ft) elevation contour; then due west for 419
m (1,375 ft) (approximately to the second intersection with a canal);
then due south for about 1 km (0.6 mi) to an unnamed intermittent
stream shown on the Morgan Hill quadrangle; then by a straight line
slightly east of southeast to the westernmost point on the intermittent
stream draining San Bruno Canyon (this point is nearly on a line
between hilltop elevations marked 227 m (744 ft) and 230 m (756 ft), to
the east and the west, respectively, on the Morgan Hill quadrangle);
then by a line running north of northeast back to the starting point on
San Bruno Avenue.
Unit 8 (Kirby Unit): Santa Clara County, California. Beginning at
the intersection of the intermittent creek draining Metcalf Canyon
(Metcalfe Canyon on the USGS Morgan Hill 7.5 minute quadrangle, 1955,
photorevised 1980) with Highway 101 (current alignment, not shown on
Morgan Hill quadrangle), the unit is bounded on the east, southeast,
and south by Highway 101 (east edge of pavement, current alignment, not
shown on the Morgan Hill quadrangle), south to where it crosses Coyote
Creek. From there the boundary runs southeasterly up along Coyote Creek
to the Anderson Lake dam; then east-northeasterly up the face of the
dam to Anderson Lake (Anderson Reservoir). The unit is bounded on the
southeast by Anderson Lake. From the northernmost tip of Anderson Lake
(at latitude 37 degrees 12 minutes 15 seconds north) the boundary runs
slightly north of west for a distance of about 1,097 m (3,600 ft) to a
hilltop marked 379 m (1,243 ft) in elevation on the Morgan Hill
quadrangle; then slightly west of northwest for a distance of about
1,707 m (5,600 ft) to a hilltop marked 411 m (1,347 ft) in elevation on
the Morgan Hill quadrangle; then slightly north of northwest for a
distance of about 2,886 m (9,470 ft) to a hilltop marked 444 m (1,457
ft) in elevation on the Morgan Hill quadrangle; then on a line running
from this hilltop south of west-southwest (bearing 237 degrees) to the
intersection of the Metcalf Canyon drainage with the 354 m (1,160 ft)
elevation contour as shown on the Morgan Hill quadrangle. The north
boundary of the unit then continues westerly down the Metcalf Canyon
drainage to the starting point.
Unit 9 (Morgan Hill Unit): Santa Clara County, California. Bounded
as follows: beginning at the intersection of the 107 m (350 ft)
elevation contour (USGS Morgan Hill 7.5 minute quadrangle, 1955,
photorevised 1968) with Hale Road east of the intersection of Cochrane
Road and Monterey Highway; running north-northwesterly along this
contour to where it again meets Hale Avenue near the intersection of
Hale Avenue with Tilton Avenue (these roads are not named on the Morgan
Hill quadrangle); then on a line due southwest to the 122 m (400 ft)
elevation contour; then west-southwesterly along this contour to its
intersection with Willow Springs Road; then along Willow Springs Road
southwesterly to the land survey line running approximately east-
southeast from Laurel Hill (elevation marked 349 m (1,145 ft) on the
Morgan Hill quadrangle); then east-southeasterly along this land survey
line to its end at the R.2 E./R.3 E. dividing line (Mount Diablo
meridian/base line); then continuing from this point along the same
bearing as the land survey line to Llagas Road (called Llagas Avenue on
the Morgan Hill quadrangle); then northeasterly along Llagas Road to
its intersection with Castle Lake Drive (not shown on the Morgan Hill
quadrangle); then east-northeasterly along a straight line connecting
this intersection and the intersection of Christeph Drive and Llagas
Vista Drive (not shown on the Morgan Hill quadrangle); then
northeasterly parallel to Llagas Road to Hale Avenue; then north-
northwesterly along Hale Avenue to the starting point.
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Unit 10 (Metcalf Unit): Santa Clara County, California. This unit
shares its southern border with the northern border of the Kirby unit,
running from Highway 101 (current alignment, not shown on USGS Morgan
Hill 7.5 minute quadrangle, 1955, photorevised 1980) up the Metcalf
Canyon drainage and to the 444 m (1,457 ft) peak of the ridge as
described for the Kirby unit. The Metcalf unit boundary then runs
north-northeasterly from this hilltop for a distance of about 1,740 m
(5,710 ft) to a hilltop marked 440 m (1,445 ft) in elevation on the
Morgan Hill quadrangle (this segment crosses Metcalf Road (appears as
Metcalfe Road on the Morgan Hill quadrangle) about 0.5 km (0.3 mi)
easterly of the high point of this road over Coyote Ridge). The Metcalf
unit boundary then continues, abutting the San Felipe unit, from this
hilltop due west to Silver Creek; then northwesterly down Silver Creek
to the first intersection with Silver Creek Road (sic) (T.8 S., R.2 E;
USGS San Jose East 7.5 minute quadrangle, 1961, photorevised 1980) (see
San Felipe unit description). From this crossing of Silver Creek Road
over Silver Creek, the Metcalf unit boundary follows Silver Creek Road
west-northwesterly to the 152 m (500 ft) elevation contour as shown on
the San Jose East quadrangle (just north of a benchmark labeled 153 m
(502 ft) on the quadrangle); then continues due southwest for about 445
m (1,460 ft) to a fence line marked on the San Jose East quadrangle;
then slightly north of west following that fence line as shown for a
distance of about 1,027 m (3,370 ft) to its second (westerly)
intersection with the 226 m (740 ft) elevation contour as shown on the
San Jose East quadrangle; then northwest in a straight line to the
intersection of Silver Creek Valley Road (sic) (not shown on the San
Jose East quadrangle) with the 195 m (640 ft) elevation contour as
shown on the San Jose East quadrangle; then southwesterly along Silver
Creek Valley Road to Coyote Creek; then southeasterly along Coyote
Creek to its first undercrossing of Highway 101 (current alignment, not
shown but would fall on USGS Santa Teresa Hills 7.5 minute quadrangle,
1953, photorevised 1980); then southerly along Highway 101 (current
alignment, east edge of pavement, not shown on USGS 7.5 minute
quadrangles) to the Metcalf Canyon drainage.
Unit 11 (San Felipe Unit): Santa Clara County, California. The east
boundary of the San Felipe critical habitat unit begins at the 440 m
(1,445 ft) hilltop identified in the northeast boundary of the Metcalf
unit (this peak is labeled on the USGS Morgan Hill 7.5 minute
quadrangle (1955, photorevised 1980), near latitude 37 degrees 15
minutes north, longitude 121 degrees 43 minutes west); and proceeds
from that hilltop due north to San Felipe Road at an elevation of about
296 m (970 ft) (USGS Lick Observatory 7.5 minute quadrangle, 1955,
photorevised 1968); then west-northwesterly along San Felipe Road
(southwest edge of pavement) for a distance of about 2.7 km (1.7 mi) to
Silver Creek Road (sic). The north boundary is formed by Silver Creek
Road (south edge of pavement) from San Felipe Road to Silver Creek (the
creek crossing is on the USGS San Jose East 7.5 minute quadrangle,
1961, photorevised 1980). The west boundary, which abuts the Metcalf
unit, runs from Silver Creek Road southeasterly along Silver Creek
(mostly on Lick Observatory quadrangle). The south boundary also abuts
the Metcalf unit, and runs from Silver Creek (Morgan Hill quadrangle)
due east to the starting point.
Unit 12 (Silver Creek Unit): Santa Clara County, California.
Bounded as follows: on the west by Highway 101 (east edge of pavement,
current alignment) from Yerba Buena Road in San Jose south to the
crossing of Coyote Creek (Yerba Buena Road and the full current
alignment of Highway 101 are not shown on the USGS San Jose East 7.5
minute quadrangle, 1961, photorevised 1980); then by Coyote Creek
southeasterly from this crossing south to Silver Creek Valley Road (not
shown on the San Jose East quadrangle); then by Silver Creek Valley
Road from Coyote Creek northeasterly to its intersection with the 195 m
(640 ft) elevation contour shown on the San Jose East quadrangle (this
segment abuts the northwestern boundary of the Metcalf unit); then due
northwest to the boundary of the Silver Creek Valley Country Club
Butterfly Habitat Reserve at an elevation of about 226 m (740 ft); then
generally northeast, north, and northwest along the boundary of the
reserve to a fence line shown on the San Jose East quadrangle at an
elevation of about 168 m (550 ft); then northeasterly following that
fence line as shown to Silver Creek at an elevation of about 93 m (305
ft); then northwesterly and westerly following Silver Creek to Yerba
Buena Road where Silver Creek passes under it approximately 216 m (710
ft) northeast of Highway 101; then along Yerba Buena Road (south edge
of pavement) to Highway 101.
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Unit 13 (San Vicente-Calero Unit): Santa Clara County, California.
Bounded on the north and northwest by Calero Reservoir, by the canal
and siphon running westerly of the main reservoir dam (dam on the
Arroyo Calero), and by the city boundary of the City of San Jose, which
follows the canal at an elevation of roughly 152 m (500 ft), as far as
its intersection with Chilanian Gulch. The boundary then runs generally
southeast following Chilanian Gulch to its intersection with the R.1
E./R.2 E. (Mount Diablo meridian/base line) dividing line, then due
south to the Calero County Park border. The park boundary forms the
rest of the western, southern, and southeastern border of the unit. The
eastern border of the unit is formed by a line running due north from
the southern Calero County Park boundary through a hilltop elevation
labeled 307 m (1,009 ft) on the USGS Santa Teresa Hills 7.5 minute
quadrangle (1953, photorevised 1980) to Calero Reservoir. This hilltop
is near latitude 37 degrees 10 minutes 15 seconds north, longitude 121
degrees 46 minutes 15 seconds west.
Unit 14 (Santa Teresa Hills Unit): Santa Clara County, California.
The east and southeast boundary runs as follows, beginning at the
westernmost corner of the Tulare Hill Corridor unit: due southeast and
then northeast along the Tulare Hill Corridor unit boundary, to the 85
m (280 ft) elevation contour (USGS Santa Teresa Hills 7.5 minute
quadrangle, 1953, photorevised 1980); then southeasterly, south, and
southwesterly along this elevation contour (continues onto USGS Morgan
Hill 7.5 minute quadrangle, 1955, photorevised 1980, and back) to its
intersection with Bailey Avenue. The south, southwest, and western
border of the unit then continues from this point, along a line running
west-southwesterly (bearing 248 degrees) for a distance of about 325 m
(1,065 ft) to a bench mark north of Bailey Avenue labeled 108 m (354
ft) in elevation on the Santa Teresa Hills quadrangle; then north of
east (bearing 284 degrees) for a distance of about 3,030 m (9,940 ft)
to the intersection of a land grant boundary with a transmission line
shown on the 1980 photorevised Santa Teresa Hills quadrangle at an
elevation of about 152 m (500 ft); then north-northwesterly along this
land grant line to the intersection with Fortini Road; then generally
west-southwest and west along Fortini Road to the intersection with San
Vicente Avenue (these road names do not appear on the Santa Teresa
quadrangle); then westerly along San Vicente Avenue to where it turns
south south-west; then continuing westerly and northwesterly from this
point along a land grant boundary shown on the Santa Teresa Hills
quadrangle to its intersection with both Henwood Drive (road name does
not appear on the Santa Teresa quadrangle) and an unnamed intermittent
drainage (tributary to Arroyo Calero); then northeasterly and northerly
up this drainage as marked on the Santa Teresa Hills quadrangle to the
183 m (600 ft) elevation contour; then due north-northeast for a
distance of about 424 m (1,390 ft) to the first intersection with the
280 m (920 ft) elevation contour; then west-northwest for a distance of
about 265 m (870 ft) to a hilltop over 280 m (920 ft) in elevation,
then slightly north of west (bearing 276 degrees) for a distance of
about 543 m (1,780 ft) to the end of a dirt road as marked on the 1980
photorevised Santa Teresa Hills quadrangle; then slightly south of
west-northwest (bearing 290 degrees) for a distance of about 2,551
(8,370 ft) to a hilltop marked 173 m (568 ft) in elevation on the Santa
Teresa Hills quadrangle; then due northeast to the 73 m (240 ft)
elevation contour as shown on the Santa Teresa Hills quadrangle. The
northern boundary of the unit is formed by the 73 m (240 ft) elevation
contour as shown on the Santa Teresa Hills quadrangle.
Unit 15 (Tulare Hill Corridor Unit): Santa Clara County,
California. Bounded on the northeast by the most northeasterly edge of
pavement of Highway 101 (i.e., the highway itself is included, and the
unit abuts the Kirby and Metcalf units). Bounded on the northwest,
west, and southwest by a line extending due southwest from the
northeast boundary to the corner of Cheltenham Way and Coburn Court,
then southwesterly along Cheltenham Way from Coburn Court to the
intersection with Santa Teresa Boulevard, then southeasterly along
Santa Teresa Boulevard to the 73 m (240 ft) elevation contour as shown
on the USGS Santa Teresa Hills 7.5 minute quadrangle (1953,
photorevised 1980), then southwesterly along this contour to the border
of Santa Teresa County Park, then along a line due southeast to the
southeast border of the unit. Bounded on the southeast by a line
running due northeast-southwest through the southeastern-most point of
the 85 m (280 ft) contour of Tulare Hill, as shown on the Morgan Hill
quadrangle.
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* * * * *

Dated: October 10, 2000.
Kenneth L. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-26448 Filed 10-12-00; 8:45 am]
BILLING CODE 4310-55-C