[Federal Register: June 4, 2004 (Volume 69, Number 108)]
[Proposed Rules]
[Page 31569-31582]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04jn04-17]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ10
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Allium munzii (Munz's onion)
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 for the federally endangered Allium munzii
(Munz's onion) pursuant to the Endangered Species Act of 1973, as
amended (Act). We propose to designate 227 acres (ac) (92 hectares
(ha)) of critical habitat of Federal land in western Riverside County,
California. We excluded 1,068 ac (433 ha) from proposed critical
habitat within approved habitat conservation plans (HCPs) and the draft
Western Riverside Multiple Species HCP (MSHCP), Riverside County,
California.
We hereby solicit data and comments from the public on all aspects
of this proposal, including data on economic and other impacts of the
designation. We may revise this proposal prior to final designation to
incorporate or address new information received during public comment
periods.
DATES: We will accept comments until August 3, 2004. Public hearing
requests must be received by July 19, 2004.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Field
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 6010 Hidden Valley Road, Carlsbad, CA 92009.
2. You may hand-deliver written comments and information to our
Carlsbad Fish and Wildlife Office, at the above address, or fax your
comments to 760/731-9618.
3. You may send your comments by electronic mail (e-mail) to
fw1cfwoalmu@r1.fws.gov. For directions on how to submit electronic
filing of comments, see the ``Public Comments Solicited'' section.
All comments and materials received, as well as supporting
documentation used in preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and
Wildlife Office (telephone 760/431-9440; facsimile 760/431-9618).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
It is our intent that any final action resulting from this proposal
will be as accurate 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. Maps of essential habitat not included
in the proposed critical habitat are available for viewing by
appointment during regular business hours at the Carlsbad Fish and
Wildlife Office (see ADDRESSES section) or on the Internet at http://carlsbad.fws.gov.
On the basis of public comment, during the
development of the final rule we may find that areas proposed are not
essential, are appropriate for exclusion under section 4(b)(2), or not
appropriate for exclusion, and in all of these cases, this information
would be incorporated into the final designation. We particularly seek
comments concerning:
(1) The reasons why any areas 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 threats to the
species resulting from the designation;
(2) Specific information on the amount and distribution of Allium
munzii and its habitat, and which habitat or habitat components are
essential to the conservation of this species and why;
(3) Land use designations and current or planned activities in or
adjacent to the areas proposed and their possible impacts on proposed
critical habitat;
(4) Any foreseeable economic or other potential impacts resulting
from the proposed designation, in particular, any impacts on small
entities;
(5) Most of the lands we have identified as essential for the
conservation of Allium munzii are proposed for exclusion as critical
habitat. Eighteen of 19 known occurrences of this species have been
proposed for exclusion from this proposed designation of critical
habitat because they are within approved HCPs or the draft Western
Riverside MSHCP. These areas are proposed for exclusion from critical
habitat because we believe the value of excluding these areas outweighs
the value of including them. We specifically solicit comment on the
inclusion or exclusion of such areas and: (a) Whether these areas are
essential; (b) whether these areas warrant exclusion; and (c) the basis
for excluding these areas as critical habitat (section 4(b)(2) of the
Act); and
(6) Whether our approach to designate critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods. Please submit
electronic comments in ASCII file format and avoid the use of special
characters or any form of encryption. Please also include ``Attn: RIN
1018-AJ10'' in your e-mail subject header and your name and return
address in the body of your message. If you do not receive a
confirmation from the system that we have received your internet
message, contact us directly by calling our Carlsbad Fish and Wildlife
Office at phone number 760-431-9440. Please note that the e-mail
address, fw1cfwoalmu@r1.fws.gov, will be closed out at the termination
of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish 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.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
[[Page 31570]]
Preamble
Designation Of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the ESA, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of conservation resources. The Service's present system for designating
critical habitat is driven by litigation rather than biology, limits
our ability to fully evaluate the science involved, consumes enormous
agency resources, and imposes huge social and economic costs. The
Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the ESA can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.''
Currently, only 445 species, or 36 percent, of the 1,244 listed
species in the U.S. under the jurisdiction of the Service have
designated critical habitat. We address the habitat needs of all 1,244
listed species through conservation mechanisms such as listing, section
7 consultations, the section 4 recovery planning process, the section 9
protective prohibitions of unauthorized take, section 6 funding to the
States, and the section 10 incidental take permit process. The Service
believes that it is these measures that may make the difference between
extinction and survival for many species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits regarding critical habitat
designation, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits and to comply
with the growing number of adverse court orders. As a result, the
Service's own to proposals to undertake conservation actions based on
biological priorities are significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for additional public
participation beyond those minimally required by the Administrative
Procedures Act (APA), the Act, and the Service's implementing
regulations, or to take additional time for review of comments and
information to ensure the rule has addressed all the pertinent issues
before making decisions on listing and critical habitat proposals, due
to the risks associated with noncompliance with judicially imposed.
This in turn fosters a second round of litigation in which those who
will suffer adverse impacts from these decisions challenge them. The
cycle of litigation appears endless, is very expensive, and in the
final analysis provides little additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA), all are part of the cost of
critical habitat designation. These costs result in minimal benefits to
the species that is not already afforded by the protections of the Act
enumerated earlier, and they directly reduce the funds available for
direct and tangible conservation actions.
Background
In January 1990, Allium munzii was listed as a threatened species
by the State of California pursuant to the California Endangered
Species Act. The Service listed A. munzii as endangered under the Act
on October 13, 1998 (63 FR 54975).
Allium munzii is a member of the Liliaceae (lily family). A. munzii
belongs to the A. fimbriatum complex, a group of seven species found
primarily in California (McNeal 1992), and was first referred to as A.
fimbriatum var. munzii by M. Ownbey (Munz and Keck 1959). McNeal (1992)
elevated this taxon to species status based on unique morphological
characteristics of the perianth (the outer parts of a flower,
consisting of the calyx, corolla, and also enclosing the stamen and
carpel) and ovarian crests.
Allium munzii is a bulb-forming perennial herb that annually
produces a single leaf and a scapose inflorescence (a leafless flower
stalk that grows directly from the ground) 0.5 to 1.2 feet (ft) (15 to
35 centimeters (cm)) tall. Each leaf is hollow and generally 1.5 times
as long as the inflorescence and round (terete) in cross-section. The
inflorescence is umbellate (a flat topped or rounded flower cluster
where each flower stalk radiates from the same point), consisting of 10
to 35 flowers. The flowers have six white, or white with a red midvein,
perianth segments that are 0.2 to 0.3 inches (in) (6 to 8 millimeters
(mm)) long and become red with age. The ovary is crested with fine,
irregularly dentate processes and the fruit is a three-lobed capsule
(McNeal 1993). A. munzii can be distinguished from other members of the
genus within its range by its single hollow and terete leaf, the shape
of the perianth segments, flower color, and the irregularly dentate
crest of the ovary.
Three to five years are required after seeds germinate for the
plant to reach maturity and produce flowers (Schmidt 1980). The plants
are dormant except in the spring and early summer months. Prior to
flowering, a single, cylindrical leaf is produced (Munz 1974). The
flowering period for this species is March to May (California Native
Plant Society (CNPS) 2001). The best time to detect the species is in
early May. Allium munzii shares its range and habitat with the similar-
appearing A. haematochiton (red-skinned onion). Though the two species
can occur within several feet of each other, the species do not
interbreed (California Department of Fish and Game (CDFG) 1989). After
flowering, the plant dies back to the bulb. A. munzii is well adapted
to summer drought and varied amounts of rainfall from year to year and
responds to environmental conditions in the aboveground emergence from
year to year. McNeal (1992) observed that flowering in the A.
fimbriatum complex appeared to be correlated with rains in the late
fall and early winter. When rainfall is plentiful, most plants within a
population bloom. When rainfall is light, most plants sprout leaves,
but very few flower. There is no information regarding pollinators. No
studies are available regarding seed dispersal.
[[Page 31571]]
Status and Distribution
Allium munzii is endemic to mesic clay soils in western Riverside
County, California, throughout the foothills east of the Santa Ana
Mountains extending south and east to the low hills south of Hemet
(Roberts 1993; U.S. Fish and Wildlife Service 1998; CNDDB 2000; Natural
Resource Consultants (NRC) 2000). Currently there are 19 occurrences of
Allium munzii according to the California Natural Diversity Database
(CNDDB 2004). One historical population in the CNDDB was lost to
development, however, the extent of the historical distribution of this
plant is unknown.
At the time of listing, the Service estimated the total population
to be approximately 20,000 to 70,000 individuals. Six populations are
large (around 2,000 or more individuals) and cover as much as 20 ac (8
ha). The largest populations are at Harford County Park and adjacent
private lands (20,000 to 50,000 individuals altogether), Alberhill (at
least 7,700 individuals), Elsinore Peak (5,000 individuals), Dawson
Canyon (2,000 individuals), Estelle Mountain (at least 2,000
individuals), and Bachelor Mountain (over 3,000 individuals). Most
populations contain fewer than 1,000 individuals, and occupy areas
ranging from several square feet to less than 2.5 ac (several square
meters to less than 1 ha.
Threats
As much as 80 to 90 percent of the suitable habitat for this
species has been lost to agriculture, urbanization, and clay mining
(California Department of Fish and Game 1989). Populations continue to
be threatened by housing and business development, dry land farming
activities, off-road vehicle activity, clay mining, and competition
with non-native plants (Roberts 1993; U.S. Fish and Wildlife Service
1998; CNDDB 2003).
Clay pit mining has affected and continues to threaten Allium
munzii populations. The largest disturbance resulting from clay mining
operations have been west of Alberhill and northwest of Indian Truck
Trail. At least three smaller historic clay mining areas are known from
Dos Lagos (Butterfield Station) east of Temescal Wash, Estelle
Mountain, and north Domenigoni Hills. Clay mining activities are
ongoing in the area northwest of Alberhill and continue to threaten the
large population there.
The native perennial and annual grasslands found on most clay soils
in western Riverside County have been negatively affected by grazing
activities and a frequent fire return interval. Even conserved areas
that are protected through other rules and regulations are at risk of
trampling and foraging primarily by sheep, which have been known to
escape onto the Estelle Mountain areas containing the onion. Historic
grazing has also led to invasion by non-native grasses and forbs over
large areas. Fire and atmospheric nitrification of soil (resulting from
air pollution) may each play a role in advancing the invasion of non-
native grasses. Many of the native grasslands and a large portion of
the sage scrub areas in western Riverside have been replaced by non-
native annual grasses and forbs by repeated cycles of fire, grazing and
nitrification. Competition with non-native grasses is a threat to
Allium munzii because the non-native annual grasses form a dense cover
that is more difficult for the A. munzii to penetrate than cover
provided by the more patchily distributed native grasses or open sage
scrub and chaparral communities.
Historic and recent housing and business development, road
building, and road maintenance threaten Allium munzii populations. The
Sycamore Creek housing development, for example, impacted a portion of
the adjacent population, and development of a freeway interchange at
Indian Truck Trail is known to have significantly reduced one
population. Existing roads have bisected A. munzii populations or
reduced population numbers significantly at Gavilan Hills, Alberhill,
Di Palma, and Indian Truck Trail.
Off-road vehicle activity can trample onions and alter soil
conditions. The Elsinore Peak population has been negatively affected
by off-road vehicle activity. Off-road vehicle activity remains a
threat to almost every remote occurrence of this species. Utility
development has negatively affected Allium munzii populations at
Elsinore Peak and Scott Road. Due to the large number of anthropogenic
activities within occupied habitat, development and maintenance of
these facilities remains a threat to the species where they intersect
with suitable habitat. Right-of-way maintenance activities, such as
mowing or grubbing, can result in degradation of population viability
if repeatedly conducted during the spring and summer growth period.
Previous Federal Action
We published the final rule to list Allium munzii as endangered in
the Federal Register on October 13, 1998 (63 FR 54975). The listing was
based on a variety of factors including habitat destruction and
fragmentation from agricultural and urban development, clay mining,
off-road vehicle activity, cattle and sheep grazing, weed abatement,
fire suppression practices, and competition from alien plant species. A
Recovery plan for this species has not yet been completed.
At the time of listing, we concluded that designation of critical
habitat for Allium munzii was not prudent because such designation
would not benefit the species. On November 15, 2001, a lawsuit was
filed against the Department of the Interior (DOI) and the Service by
the Center for Biological Diversity and California Native Plant
Society, challenging our ``not prudent'' determinations for eight
plants including A. munzii (No. CV-01-2101) (CBD et al. v. USDOI). A
second lawsuit asserting the same challenge was filed against DOI and
the Service by the Building Industry Legal Defense Foundation (BILD) on
November 21, 2001 (No. CV-01-2145) (BILD v. USDOI). Both cases were
consolidated on March 19, 2002, and all parties agreed to remand the
critical habitat determinations to the Service for additional
consideration. In an order dated July 1, 2002, the U.S. District Court
for the Southern District of California directed us to reconsider our
not prudent finding and publish a proposed critical habitat rule for A.
munzii, if prudent, on or before May 30, 2004. This proposed rule
complies with the court's ruling. We have reconsidered our not prudent
finding, and now believe that critical habitat designation may provide
educational information to individuals, local and State governments,
and other entities engaged in long-ranging planning, since areas
essential to the conservation of the species are more clearly defined
and, to the extent currently feasible, the primary constituent elements
of the habitat necessary to the conservation of the species are
identified.
Critical Habitat
Section 3(5)(A) of the Act defines critical habitat as--(i) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection; and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
[[Page 31572]]
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary.
The designation of critical habitat does not affect land ownership
or establish a refuge, wilderness, reserve, preserve, or other
conservation area. It does not allow government or public access to
private lands. Under section 7 of the Act, Federal agencies must
consult with the Service on activities they undertake, fund, or permit
that may affect critical habitat and lead to its destruction or adverse
modification. However, the Act prohibits unauthorized take of listed
species and requires consultation for activities that may affect them,
including habitat alterations, regardless of whether critical habitat
has been designated. We have found that the designation of critical
habitat provides little additional protection to most listed species.
To be included in a critical habitat designation, habitat must be
either a specific area within the geographic area occupied by the
species on which are found those physical or biological features
essential to the conservation of the species (primary constituent
elements, as defined at 50 CFR 424.12(b)) and which may require special
management considerations or protection, or be specific areas outside
of the geographic area occupied by the species which are determined to
be essential to the conservation of the species. Section 3(5)(c) of the
Act states that not all areas that can be occupied by a species should
be designated as critical habitat unless the Secretary determines that
all such areas are essential to the conservation of the species. Our
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall
designate as critical habitat areas outside the geographic area
presently occupied by the species only when a designation limited to
its present range would be inadequate to ensure the conservation of the
species.''
Regulations at 50 CFR 424.02(j) define special management
considerations or protection to mean any methods or procedures useful
in protecting the physical and biological features of the environment
for the conservation of listed species. When we designate critical
habitat, we may not have the information necessary to identify all
areas which are essential for the conservation of the species.
Nevertheless, we are required to designate those areas we consider to
be essential, using the best information available to us. Accordingly,
we do not designate critical habitat in areas outside the geographic
area occupied by the species unless the best available scientific and
commercial data demonstrate that unoccupied areas are essential for the
conservation needs of the species.
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, effects to national security, 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
extinction of the species.
Our Policy on Information Standards Under the Act, published in the
Federal Register on July 1, 1994 (59 FR 34271), provides criteria,
establishes procedures, and provides guidance to ensure that our
decisions represent the best scientific and commercial data available.
It requires our biologists, to the extent consistent with the Act and
with the use of the best scientific and commercial data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat. When determining which
areas are critical habitat, a primary source of information should be
the listing package for the species. Additional information may be
obtained from a recovery plan, articles in peer-reviewed journals,
conservation plans developed by States and counties or other entities
that develop HCPs, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Section 4 of the Act requires that we designate critical habitat on
the basis of what we know at the time of designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Criteria for Defining Essential Habitat
All of the areas known to support Allium munzii are considered
essential habitat for this species. A. munzii is known only from a
narrow geographic range and within that range is limited to clay soils.
There are currently 19 occurrences of this plant known to exist. One
known historical occurrence has been lost to agriculture and urban
development; others have been degraded or reduced in size. Due to the
limited range and distribution of this species and the degradation of
known populations of this species, preservation of all the known
occurrences is essential for its conservation. The majority of the
known occurrences are in the Gavilan Hills, the Gavilan Plateau, and
the Temescal Valley regions of Riverside County. Other populations are
found near Elsinore Peak, the Domenigoni Hills, Paloma Valley, Bachelor
Mountain, and Skunk Hollow. It is possible that there are populations
of this species that have gone undetected in Riverside County due to
the cryptic nature of this species. Plants are only obvious in April
and May when in flower, and plants do not often flower in years of low
rainfall.
Primary Constituent Elements
In accordance with section 3(5)(A)(I) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (primary
constituent elements) that are essential to the conservation of the
species and that may require special management considerations or
protection. These features include but are not limited to: Space for
individual and population growth and for normal behavior; food, water,
air, light, minerals or other nutritional or physiological
requirements; cover or shelter; sites for germination or seed
dispersal; and habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
The specific biological and physical features, otherwise referred
to as the primary constituent elements, that
[[Page 31573]]
comprise Allium munzii habitat are based on specific components that
provide for the essential biological components of the species as
described below.
Allium munzii is restricted to mesic clay soils in western
Riverside County, California, along the southern edge of the Perris
basin. The clay soils are scattered in a band several miles wide and
extending 40 miles from Gavilan Hills to west of Temescal Canyon and
Lake Elsinore at the eastern foothills of the Santa Ana Mountains and
along the Elsinore Fault Zone to the southwestern foothills of the San
Jacinto Mountains near Lake Skinner and Vail Lake. Clay soil
associations include Altamont, Auld, Bosanko, Claypit and Porterville
clay soil types. At least one population (Bachelor Mountain) was
reported by Bramlet in 1991 to be associated with pyroxenite outcrops
instead of clay (California Natural Diversity Data Base (CNDDB) 2003).
Rounded cobbles and boulders are embedded within the clay, which has a
sticky, adobe consistency when wet and large cracks when dry. A. munzii
is typically found on the more mesic sites within the clay deposits
(Boyd 1988). The clay deposits typically support grassland vegetation
within a surrounding scrub community.
Allium munzii occurs at elevations from 984 to 3,511 feet (ft) (300
to 1,070 meters (m)), and on level or slightly sloping lands.
Allium munzii is typically found in open native grasslands and,
increasingly, non-native grasslands which can be either the dominant
community or found in a mosaic with Riversidean sage scrub, scrub oak
chaparral, chamise chaparral, coast live oak woodland, or peninsular
juniper woodland and scrub (Holland 1986). Based upon the dominant
species, these plant communities where A. munzii is found have been
further divided into series which include, but are not limited to,
California annual grassland, nodding needlegrass, purple needlegrass,
foothill needlegrass, black sage, white sage, California buckwheat,
California buckwheat-white sage, California sagebrush, California
sagebrush-black sage, California sagebrush-California buckwheat, mixed
sage, chamise, chamise-black sage, coast live oak, scrub oak, and
California juniper (Sawyer and Keeler-Wolf 1994).
A characteristic ``clay soil flora'' is associated with the island-
like clay deposits in southwestern Riverside County. This includes
perennial herbs, such as Fritillaria biflora (chocolate lily),
Harpagonella palmeri (Palmer's grappling hook), Chorizanthe
polygonoides var. longispina (knot-weed spine flower), Sanicula
bipinnatifida (purple sanicle), S. arguta (snakeroot), Lomatium
utriculatum (common lomatium), L. dasycarpum (lace parsnip),
Dodecatheon clevelandii (Cleveland's shooting star), Bloomeria crocea
(goldenstar), Chlorogalum parviflorum (soaproot), Dudleya multicaulis
(many-stemmed dudleya), Allium haematochiton (red-skinned onion) and A.
munzii (Boyd 1988).
Pursuant to our regulations, we are required to identify the known
physical and biological features, i.e., primary constituent elements,
essential to the conservation of Allium munzii, together with a
description of any critical habitat that is proposed. In identifying
the primary constituent elements, we used the best available scientific
and commercial data available. The physical ranges described in the
primary constituent elements may not capture all of the variability
that is inherent in natural systems that support A. munzii. The primary
constituent elements determined essential to the conservation of A.
munzii are:
(1) Clay soil series of sedimentary origin (e.g., Altamont, Auld,
Bosanko, Claypit, Porterville), or clay lenses of such which may be
found as unmapped inclusions in other soil series, or soil series of
sedimentary or igneous origin with a clay subsoil (e.g., Cajalco, Las
Posas, Vallecitos); found on level or slightly sloping landscapes;
generally between the elevations of 985 ft and 3,500 ft (300 m and
1,068 m) above mean sea level (AMSL); and as part of open native or
non-native grassland plant communities and ``clay soil flora'' which
can occur in a mosaic with Riversidean sage scrub, chamise chaparral,
scrub oak chaparral, coast live oak woodland, and peninsular juniper
woodland and scrub; or
(2) Alluvial soil series of sedimentary or igneous origin (e.g.,
Greenfield, Ramona, Placentia, Temescal) and terrace escarpment soils
found as part of alluvial fans underlying open native or non-native
grassland plant communities which can occur in a mosaic with
Riversidean sage scrub generally between the elevations of 985 ft and
3,500 ft (300 m and 1,068 m) above mean sea level (AMSL); or Pyroxenite
deposits of igneous origin found on Bachelor Mountain as part of non-
native grassland and Riversidean sage scrub generally between the
elevations of 985 ft and 3,500 ft (300 m and 1,068 m) above mean sea
level (AMSL); and
(3) Clay soils or other soil substrate as described above with
intact, natural surface and subsurface structure that have been
minimally altered or unaltered by ground-disturbing activities (e.g.,
disked, graded, excavated, re-contoured).
All areas proposed as critical habitat for Allium munzii are within
the geographic area occupied by the species and contain one or more
primary constituent elements (e.g., soil, associated plant community)
essential for its conservation.
Methods
In determining areas that are essential to conserve Allium munzii,
we used the best scientific and commercial data available. These
included data from research and survey observations published in peer-
reviewed articles, regional Geographic Information System (GIS)
vegetation, soil, and species coverages (including layers for Riverside
County), and data compiled in the CNDDB. In addition, information
provided in comments on the proposed critical habitat designation and
draft economic analysis will be evaluated and considered in the
development of the final designation for A. munzii.
After all the information about the known occurrences of Allium
munzii was compiled, we created maps indicating the essential habitat
associated with each of the occurrences. We used the information
outlined above to aid in this task. The essential habitat was mapped
using GIS and refined using topographical and aerial map coverages.
These essential habitat areas were further refined by discussing each
area in detail with Fish and Wildlife Service biologists familiar with
each area. Areas not containing the primary constituent elements were
not included in the boundaries of proposed critical habitat whenever
possible.
After creating a GIS coverage of the essential areas, we created
legal descriptions of the essential areas. We used a 100-meter grid to
establish Universal Transverse Mercator (UTM) North American Datum 27
(NAD 27) coordinates which, when connected, provided the boundaries of
the essential areas. The areas were then analyzed with respect to
section 4(b)(2) of the Act, and any applicable and appropriate
exclusions were made. The remaining essential areas are the proposed
critical habitat. The essential areas, an elaboration on the
exclusions, and the specific areas proposed for critical habitat are
described below.
Special Management Considerations or Protection
As we undertake the process of designating critical habitat for a
species, we first evaluate lands defined by those physical and
biological features essential to the conservation of the
[[Page 31574]]
species for inclusion in the designation pursuant to section 3(5)(A) of
the Act. Secondly, we then evaluate lands defined by those features to
assess whether they may require special management considerations or
protection. As discussed throughout this proposed rule, Allium munzii
and its habitat are threatened by a multitude of factors. Threats to
those features that define essential habitat (primary constituent
elements) are caused by various types of development, dry-land farming
activities, off-road vehicle activity, clay mining, and competition
with non-native plants. Habitat loss continues to be the greatest
threat to A. munzii. It is essential for the survival of this species
to protect those features that define the remaining essential habitat,
through purchase or special management plans, from irreversible threats
and habitat conversion. We believe the area proposed for designation as
critical habitat may require some level of management and/or protection
to address the current and future threats to A. munzii and maintain the
primary constituent elements essential to its conservation to ensure
the overall recovery of the species.
Relationship to Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data available after taking into consideration the economic impact,
effects to national security, and any other relevant impact, of
specifying any particular area as critical habitat. An area may be
excluded from critical habitat if it is determined, following an
analysis, that the benefits of such exclusion outweigh the benefits of
specifying a particular area as critical habitat, unless the failure to
designate such area as critical habitat will result in the extinction
of the species. Consequently, we may exclude an area from designated
critical habitat based on economic impacts, effects to national
security, or other relevant impacts such as preservation of
conservation partnerships, if we determine the benefits of excluding an
area from critical habitat outweigh the benefits of including the area
in critical habitat, provided the action of excluding the area will not
result in the extinction of the species.
In our critical habitat designations we have used the provisions
outlined in section 4(b)(2) of the Act to evaluate those specific areas
that are proposed for designation as critical habitat and those areas
which are subsequently finalized (i.e., designated). We have applied
the provisions of this section of the Act to lands essential to the
conservation of the subject species to evaluate them and either exclude
them from final critical habitat or not include them in proposed
critical habitat. Lands which we have either excluded from or not
included in critical habitat based on those provisions include but are
not limited to those covered by: (1) Legally operative HCPs that cover
the species and provide assurances that the conservation measures for
the species will be implemented and effective; (2) draft HCPs that
cover the species, have undergone public review and comment, and
provide assurances that the conservation measures for the species will
be implemented and effective (i.e., pending HCPs); (3) Tribal
conservation plans that cover the species and provide assurances that
the conservation measures for the species will be implemented and
effective; (4) State conservation plans that provide assurances that
the conservation measures for the species will be implemented and
effective; and (5) Service National Wildlife Refuge System
Comprehensive Conservation Plans that provide assurances that the
conservation measures for the species will be implemented and
effective. Within the essential habitat for Allium munzii there are no
tribal lands or lands owned by the Department of Defense.
Relationship of Critical Habitat to Approved Habitat Conservation Plans
and Draft Western Riverside Multiple Species Habitat Conservation Plan
(MSHCP)
As described above, section 4(b)(2) of the Act requires us to
consider other relevant impacts, in addition to economic and national
security impacts, when designating critical habitat. Section
10(a)(1)(B) of the Act authorizes us to issue permits for the take of
listed wildlife species incidental to otherwise lawful activities.
Development of an HCP is a prerequisite for the issuance of an
incidental take permit pursuant to section 10(a)(1)(B) of the Act. An
incidental take permit application must be supported by an HCP that
identifies conservation measures that the permittee agrees to implement
for the species to minimize and mitigate the impacts of the permitted
incidental take.
HCPs vary in size and may provide for incidental take coverage and
conservation management for one or many federally listed species.
Additionally, more than one applicant may participate in the
development and implementation of an HCP. The areas occupied by Allium
munzii include approved HCPs and the Western Riverside MSHCP that
address multiple species, cover a large area, and have many
participating permittees. Large regional HCPs expand upon the basic
requirements set forth in section 10(a)(1)(B) of the Act because they
reflect a voluntary, cooperative approach to large-scale habitat and
species conservation planning. Many of the large regional HCPs in
southern California have been, or are being, developed to provide for
the conservation of numerous federally listed species and unlisted
sensitive species and the habitat that provides for their biological
needs. These HCPs address impacts in a planning area and create a
preserve design within the planning area. Over time, areas in the
planning area are developed according to the HCP and the area within
the preserve is acquired, managed, and monitored. These HCPs are
designed to implement conservation actions to address future projects
that are anticipated to occur within the planning area of the HCP in
order to reduce delays in the permitting process.
In the case of approved regional HCPs (e.g., those sponsored by
cities, counties or other local jurisdictions) wherein Allium munzii is
a covered species, a primary goal is to provide for the protection and
management of habitat essential for the conservation of the species
while directing development to non-essential areas. The regional HCP
development process provides an opportunity for more intensive data
collection and analysis regarding the use of particular habitat areas
by A. munzii. The process also enables us to construct a habitat
preserve system that provides for the biological needs and long-term
conservation of the species.
Completed HCPs and their accompanying Implementing Agreements (IA)
contain management measures and protections for identified preserve
areas that protect, restore, and enhance the value of these lands as
habitat for Allium munzii. These measures include explicit standards to
minimize any impacts to the covered species and its habitat. In
general, HCPs are designed to ensure that the value of the conservation
lands are maintained, expanded, and improved for the species that they
cover.
In approving these HCPs, the Service has provided assurances to
permit holders that once the protection and management required under
the plans are in place and for as long as the permit holders are
fulfilling their obligations under the plans, no additional mitigation
in the form of land or financial compensation will be required of the
permit holders and in some cases,
[[Page 31575]]
specified third parties. Similar assurances will be extended to future
permit holders in accordance with the Service's HCP Assurance (``No
Surprises'') rule codified at 50 CFR 17.22(b)(5) and (6) and
17.32(b)(5) and (6).
Portions of the proposed critical habitat within approved and
legally operative HCPs or Natural Community Conservation Plan (NCCP)/
HCPs in which Allium munzii is a covered species warrant exclusion from
the designation of critical habitat under section 4(b)(2) of the Act.
We believe that in most instances, the benefits of excluding legally
operative HCPs from the proposed critical habitat designations will
outweigh the benefits of including them. We have considered but not
proposed critical habitat within the Rancho Bella Vista, North Peak
Development Project, and Lake Matthews HCPs. All of these HCPs are for
a small number of private landowners. A. munzii is a covered species in
these HCPs.
Draft Western Riverside MSHCP
The Draft Western Riverside MSHCP has been in development for
several years. Participants in this HCP include 14 cities; the County
of Riverside, including the Riverside County Flood Control and Water
Conservation Agency, Riverside County Transportation Commission,
Riverside County Parks and Open Space District, and Riverside County
Waste Department; the California Department of Parks and Recreation;
and the California Department of Transportation. The Western Riverside
MSHCP is also being proposed as a subregional plan under the State's
NCCP and is being developed in cooperation with the California
Department of Fish and Game. Within the 1.26 million-acre (510,000 ha)
planning area of the MSHCP, approximately 153,000 ac (62,000 ha) of
diverse habitats are proposed for solely conservation uses. The
proposed conservation of 153,000 ac (62,000 ha) will complement other
existing natural and open space areas that are already conserved
through other means (e.g., State Parks, Forest Service, and County Park
lands).
The County of Riverside and the participating jurisdictions have
signaled their sustained support for the Western Riverside MSHCP as
evidenced by the November 5, 2002, passage of a local bond measure to
fund the acquisition of land in support of the MSHCP. On November 14,
2002, a Notice of Availability of a Draft Environmental Impact Report
(EIS/EIR) and Receipt of and Application for an Incidental Take Permit
was published in the Federal Register (67 FR 69236). Public comment on
these documents was accepted until January 14, 2003. Subsequently, on
June 17, 2003, the County of Riverside Board of Supervisors voted
unanimously to support the completion of the Western Riverside MSHCP.
Conservation actions within the Western Riverside MSHCP planning
area will be implemented to promote the long-term conservation of
Allium munzii. Although the MSHCP is not yet completed and implemented,
significant progress has been achieved in the development of this HCP,
including the preparation of the EIS/EIR, the solicitation of public
review and comment, and the preparation of final documents. We are
proposing to exclude from the proposed critical habitat designation the
non-Federal lands covered by the draft Western Riverside MSHCP. This
includes all known occurrences except one, which is on lands managed by
the Forest Service. We are proposing to designate critical habitat on
Federal lands within the planning area boundary of the Western
Riverside MSHCP because the activities of Federal agencies are not
covered under the section 10(a)(1)(B) permit. In the event that the
Western Riverside MSHCP does not provide the coverage for this species,
we will include these essential areas in the final designation of
critical habitat.
Specific conservation objectives are provided in the Western
Riverside MSHCP to ensure that suitable habitat and known populations
of the Allium munzii will persist. Conservation objectives for A.
munzii are: (1) Include in the MSHCP Conservation Area at least 13
localities, including the two whole and two partial populations
currently outside the MSHCP Conservation Area; (2) include in the MSHCP
Conservation Areas the Additional Reserve Lands (as defined in the
MSHCP), public/quasi-public (PQP) lands (as defined in the MSHCP), and
A. munzii habitat identified in the MSHCP. Given the presently known A.
munzii localities, all of the known populations will be conserved; (3)
implement management and monitoring practices within the Additional
Reserve Lands including surveys for the A. munzii. Cooperative
management and monitoring is anticipated on PQP Lands; (4) A. munzii is
considered a Narrow Endemic Plant Species (defined in section 6 of the
Riverside MSHCP; requires specific consideration in the plan). Thus,
until such time as the Additional Reserve Lands are assembled and
conservation objectives for this species are met, surveys will be
conducted as part of the project review process for public and private
projects where suitable habitat for A. munzii is present within Narrow
Endemic Plant Species Survey Area (NEPSSA) 1 and 4.
Other management actions described in the draft Western Riverside
MSHCP include addressing competition with non-native plant species,
clay mining, off-road vehicle use, and disking activities. This
management will help maintain Allium munzii populations and habitat.
The following represents our rationale for excluding the proposed
critical habitat within approved HCPs and the Draft Western Riverside
MSHCP.
(1) Benefits of Inclusion
The principal benefit of any designated critical habitat is that
federally funded or authorized activities in such habitat that require
consultation under section 7 of the Act. Such consultation would ensure
that adequate protection is provided to avoid adverse modification of
critical habitat. Where HCPs are in place, our experience indicates
that this benefit is small or nonexistent. Currently approved and
permitted HCPs and NCCP/HCPs are designed to ensure the long-term
survival of covered species within the plan area. In an approved HCP or
NCCP/HCP, lands we ordinarily would define as critical habitat for
covered species will normally be protected in reserves and other
conservation lands by the terms of the HCP or NCCP/HCP and their IAs.
These HCPs or NCCP/HCPs and IAs include management measures and
protections for conservation lands designed to protect, restore, and
enhance their value as habitat for covered species, and thus provide
benefits well in excess of those that would result from a critical
habitat designation.
(2) Benefits of Exclusion
The benefits of excluding lands within HCPs from critical habitat
designation include carrying out the assurances provided by the Service
to landowners, communities, and counties in return for their voluntary
adoption of the HCP, including relieving them of the additional
regulatory burden that might be imposed by critical habitat. Many HCPs,
particularly large regional HCPs take many years to develop and, upon
completion, become regional conservation plans that are consistent with
the recovery objectives for listed species that are covered within the
plan area. Additionally, many of these HCPs provide conservation
benefits to unlisted, sensitive species. Imposing an additional
regulatory review after an
[[Page 31576]]
HCP is completed solely as a result of the designation of critical
habitat may undermine conservation efforts and partnerships in many
areas. In fact, it could result in the loss of species' benefits if
participants abandon the voluntary HCP process because it may result in
additional regulations requiring more of them than other parties who
have not voluntarily participated in species conservation. Designation
of critical habitat within the boundaries of approved HCPs could be
viewed as a disincentive to those entities currently developing HCPs or
contemplating them in the future.
A related benefit of excluding lands within HCPs from critical
habitat designation is the unhindered, continued ability to seek new
partnerships with future HCP participants including States, counties,
local jurisdictions, conservation organizations, and private
landowners, which together can implement conservation actions that we
would be unable to accomplish otherwise. If lands within HCP plan areas
are designated as critical habitat, it would likely have a negative
effect on our ability to establish new partnerships to develop HCPs,
particularly large, regional HCPs that involve numerous participants
and address landscape-level conservation of species and habitats. By
preemptively excluding these lands, we preserve our current
partnerships and encourage additional conservation actions in the
future.
Furthermore, an HCP or NCCP/HCP application must itself be
consulted upon. While this consultation will not look specifically at
the issue of adverse modification to critical habitat, unless critical
habitat has already been designated within the proposed plan area, it
will determine if the HCP jeopardizes the species in the plan area. The
jeopardy analysis is similar to the analysis of adverse modification to
critical habitat. In addition, Federal actions that may affect listed
species or any designated critical habitat would still require
consultation under section 7 of the Act. HCP and NCCP/HCPs typically
provide for greater conservation benefits to a covered species than
section 7 consultations because HCPs and NCCP/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 accordance with the Provisions of the Act, are
limited to requiring that the specific action being consulted upon not
jeopardize the continued existence of the species. Thus, a consultation
typically does not accord the lands it covers the extensive benefits a
HCP or NCCP/HCP provides. The development and implementation of HCPs or
NCCP/HCPs provide other important conservation benefits, including the
development of biological information to guide the conservation efforts
and assist in species conservation, and the creation of innovative
solutions to conserve species while allowing for development.
The Western Riverside MSHCP seeks to accomplish the goals of
protecting, restoring, monitoring, managing, and enhancing the habitat
to benefit the conservation of Allium munzii through the implementation
of specific conservation objectives. Excluding non-Federal lands within
the MSHCP from the proposed critical habitat will provide benefits, as
follows: (1) Exclusion of the lands from the final designation will
allow us to continue working with the participants in a spirit of
cooperation and partnership; (2) other jurisdictions, private
landowners, and other entities will see the benefit of working
cooperatively with us to develop HCPs, which will provide the basis for
future opportunities to conserve species and their essential habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We have reviewed and evaluated the HCPs currently approved and
being implemented, and the draft Western Riverside MSHCP within the
areas being proposed as critical habitat for Allium munzii. Based on
this evaluation, we find that the benefits of exclusion outweigh the
benefits of proposing the portions of essential habitat for A. munzii
covered by the approved HCPs and the draft Western Riverside MSHCP as
critical habitat.
The exclusion of these lands from critical habitat will help
preserve the partnerships that we have developed with the local
jurisdictions and project proponents in the development of HCPs and
NCCP/HCPs. The educational benefits of critical habitat, including
informing the public of areas that are essential for the long-term
survival and conservation of the species, is still accomplished from
material provided on our website and through public notice and comment
procedures required to establish an HCP or NCCP/HCP. The public has
also been informed through the public participation that occurs in the
development of many regional HCPs or NCCP/HCPs. For these reasons, we
believe that proposing critical habitat has little benefit in areas
covered by HCPs, provided that the HCP or NCCP/HCP specifically and
adequately covers the species for which critical habitat is being
proposed. We do not believe that these exclusions will result in the
extinction of the species because the combination of existing preserves
and the implementation of the draft Western Riverside MSHCP provide
adequate conservation of this species on lands within the plan area.
Proposed Critical Habitat Designation
The proposed critical habitat includes Allium munzii habitat at a
single location in the species' range and is located entirely within
Riverside County, California. The majority of essential habitat for
this species has been excluded under section 4(b)(2). As a result, only
Federal lands are proposed as critical habitat. Areas proposed as
critical habitat and the areas proposed for exclusion from critical
habitat are summarized in Table 1.
Table 1.--Summary of Essential Habitat Acreage for Allium munzii.
----------------------------------------------------------------------------------------------------------------
Federal* Local/state Private Total
----------------------------------------------------------------------------------------------------------------
Essential Habitat............... 227 ac (92 ha).... 73 ac (30 ha)..... 995 ac (403 ha)... 1,295 ac (525 ha).
Excluded under 4(b)(2).......... 0 ac (0 ha)....... 73 ac (30 ha)..... 995 ac (403 ha)... 1,068 ac (433 ha).
Proposed Critical Habitat....... 227 ac (92 ha).... 0 ac (0 ha)....... 0 ac (0 ha)....... 227 ac (92 ha).
----------------------------------------------------------------------------------------------------------------
* Federal lands include U.S. Forest Service lands.
[[Page 31577]]
Western Riverside Unit, Riverside County, California (227 ac (92 ha))
As discussed above, the Western Riverside MSHCP, when approved,
will provide for the conservation of all known occurrences of A.
munzii. Only the habitat located on Federal lands is proposed as
critical habitat. This is because the habitat is essential to the
conservation of the species, but activities of Federal agencies are not
covered under the section 10(a)(1)(B) permit. A map of the areas
identified as essential habitat can be viewed on our Web site at http://carlsbad.fws.gov
.
The single unit of essential habitat that we are proposing to
designate as critical habitat is located in the vicinity of Elsinore
Peak in the Cleveland National Forest. The easternmost stand of Allium
munzii at this location is considered to be the most undisturbed and
pristine of any of the known occurrences of this species (Boyd and
Mistretta 1991). The land identified for this unit of critical habitat
supports the first and third primary constituent elements discussed
above. The habitat is characterized by mixed native/non-native
grassland and chaparral vegetation. A. munzii occurs primarily in the
grassland and the transitional vegetation between the grassland and
chaparral. The soils are primarily mapped as Bosanko clay, Cieneba-
blasingame-rock outcrop complex, and Cieneba-rock outcrop complex. The
stands of A. munzii are associated with mesic microhabitats, such as
the mesic exposures on cobble deposits and at the bottom of slopes.
This population is estimated at 5,000 plants and is ranked as a top
conservation priority by a working group assembled by the California
Department of Fish and Game (Mistretta 1993).
This site represents the southwestern-most extent of the range for
Allium munzii. The habitat at this location is high quality. This site
also supports three other species of wild onion, A. haematochition, A.
lacunosum, and A. peninsulare. This composition of four Allium species
at a single location is important to understanding the evolutionary
history and divergence of the Allium genus in southern California. The
southwestern portion of the essential habitat at this site is located
on land that will be subject to the terms and conditions of the Western
Riverside MSHCP. This portion of essential habitat has been excluded
from critical habitat, and only the essential habitat on Forest Service
land is proposed as critical habitat.
Effects of Critical Habitat Designation
Section 7 Consultation
The regulatory effects of a critical habitat designation under the
Act are triggered through the provisions of section 7, which applies
only to activities conducted, authorized, or funded by a Federal agency
(Federal actions). Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR 402.
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.
Section 7(a)(2) of the Act requires Federal agencies, including us,
to insure that their actions are not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. This requirement is met
through section 7 consultation under the Act. Our regulations define
``jeopardize the continued existence of'' as to engage in an action
that reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
distribution of that species (50 CFR 402.02). ``Destruction or adverse
modification of designated critical habitat'' for this species would
include habitat alterations that significantly affect any of those
physical or biological features that were the basis for determining the
habitat to be critical.
Section 7(a)(4) of the Act 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 Federal agencies in eliminating conflicts
that may be caused by their proposed actions. The conservation measures
in a conference report are advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if the species was
listed or critical habitat designated. We may adopt the formal
conference report as the biological opinion when the species is listed
or critical habitat designated, if no substantial new information or
changes in the action alter the content of the opinion (50 CFR
402.10(d)).
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
Federal action agency would ensure that the permitted actions do not
destroy or adversely modify critical habitat.
If 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 Service's
Regional 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 under certain
circumstances, including 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 reinitiating of
consultation or conference 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.
Federal activities that may affect Allium munzii or its critical
habitat will require consultation under section 7. Activities on
private, State, or county lands, or lands under local jurisdictions
[[Page 31578]]
requiring a permit from a Federal agency, such as Federal Highway
Administration or Federal Emergency Management Act funding, or a permit
from the Corps under section 404 of the Clean Water Act, will continue
to 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 consultations.
Section 4(b)(8) of the Act requires us to evaluate briefly and
describe, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that may adversely
modify such habitat or that may be affected by such designation.
Activities that may destroy or adversely modify critical habitat
include those that alter the primary constituent elements to an extent
that the value of critical habitat for both the survival and recovery
of Allium munzii is appreciably reduced. We note that such activities
may also jeopardize the continued existence of the species.
Activities that, when carried out, funded, or authorized by a
Federal agency, may directly or indirectly destroy or adversely modify
critical habitat for Allium munzii include, but are not limited to:
(1) Removing, thinning, or destroying Allium munzii habitat (as
defined in the primary constituent elements discussion), whether by
burning, mechanical, chemical, or other means;
(2) Activities that appreciably degrade or destroy Allium munzii
habitat (and its primary constituent elements) that could include, but
are not limited to, livestock grazing, clearing, disking, farming,
residential or commercial development, the spread of nonnative species,
off-road vehicle use, and heavy recreational use;
(3) Activities that appreciably diminish habitat value or quality
through indirect effects (e.g., edge effects, invasion of exotic plants
or animals, or fragmentation); and
(4) Any activity that could alter watershed or soil characteristics
in ways that would appreciably alter or reduce the quality or quantity
of surface and subsurface flow of water needed to maintain Allium
munzii habitat. These activities could include, but are not limited to,
altering the natural fire regime; development, including road building;
livestock grazing; and vegetation manipulation such as clearing or
grubbing in the watershed upslope from A. munzii.
(5) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities, or any activity funded or
carried out by the Department of Transportation or Department of
Agriculture that results in discharge of dredged or fill material, or
mechanized land clearing of Allium munzii habitat;
(6) Sale or exchange of lands by a Federal agency to a non-Federal
entity; and
(7) Licensing of construction of communication sites by the Federal
Communications Commission.
All lands proposed as critical habitat are within the geographical
area occupied by the species and are necessary for the conservation of
Allium munzii. Federal agencies already consult with us on actions that
may affect A. munzii to ensure that their actions do not jeopardize the
continued existence of the species. Thus, we do not anticipate
substantial additional regulatory protection will result from critical
habitat designation.
If you have questions regarding whether specific activities will
constitute destruction or adverse modification of critical habitat,
contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife and plants and inquiries about prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Branch of Endangered
Species, 911 NE. 11th Ave, Portland, OR 97232 (telephone 503/231-2063;
facsimile 503/231-6243).
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial data
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 such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species.
An analysis of the economic impacts of proposing critical habitat
for Allium munzii is being prepared. We will announce the availability
of the draft economic analysis as soon as it is completed, at which
time we will seek public review and comment. At that time, copies of
the draft economic analysis will be available for downloading from the
Internet at http://carlsbad.fws.gov, or by contacting the Carlsbad Fish
and Wildlife Office directly (see ADDRESSES section).
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we will solicit the expert opinions of at least three
appropriate and independent specialists regarding this proposed rule.
The purpose of such review is to ensure that our critical habitat
designation is 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 as we prepare our final
rulemaking. Accordingly, the final designation may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days of the date of
publication of the proposal in the Federal Register. Such requests must
be made in writing and be addressed to the Field Supervisor (see
ADDRESSES section). We will schedule public hearings on this proposal,
if any are requested, and announce the dates, times, and places of
those hearings in the Federal Register and local newspapers at least 15
days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
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 jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the notice in the SUPPLEMENTARY INFORMATION section of
the preamble helpful in understanding the proposed rule? (5) What else
could we do to make this proposed rule easier to understand? Send a
copy of any comments on how we could make this proposed rule easier to
understand to: Office of Regulatory Affairs, Department of the
Interior, Room 7229, 1849 C Street, NW.,
[[Page 31579]]
Washington, DC 20240. You may e-mail your comments to this address:
Exsec@ios.doi.gov.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is not a
significant rule and, therefore, was not reviewed by the Office of
Management and Budget (OMB). We will be preparing a draft economic
analysis of this proposed action; we will use this analysis to meet the
requirement of section 4(b)(2) of the Act to determine the economic
consequences of designating the specific areas as critical habitat and
excluding any area from critical habitat if it is determined that the
benefits of such exclusion outweigh the benefits of specifying such
areas as part of the critical habitat, unless failure to designate such
area as critical habitat will lead to the extinction of Allium munzii.
This analysis will also be used to determine compliance with Executive
Order 12866, Regulatory Flexibility Act, Small Business Regulatory
Enforcement Fairness Act, and Executive Order 12630.
This draft economic analysis will be made available for public
review and comment before we finalize this designation. At that time,
copies of the analysis will be available for downloading from the
Carlsbad Fish and Wildlife Office's Internet Web site at http://carlsbad.fws.gov
or by contacting the Carlsbad Fish and Wildlife Office
directly (see ADDRESSES section).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities.
At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA
and E.O. 12866. This draft economic analysis will provide the required
factual basis for the RFA finding. Upon completion of the draft
economic analysis, the Service will publish a notice of availability of
the draft economic analysis of the proposed designation and reopen the
public comment period for the proposed designation for an additional 60
days. The Service will include with the notice of availability, as
appropriate, an initial regulatory flexibility analysis or a
certification that the rule will not have a significant economic impact
on a substantial number of small entities accompanied by the factual
basis for that determination. The Service has concluded that deferring
the RFA finding until completion of the draft economic analysis is
necessary to meet the purposes and requirements of the RFA. Deferring
the RFA finding in this manner will ensure that the Service makes a
sufficiently informed determination based on adequate economic
information and provides the necessary opportunity for public comment.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))
In the draft 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.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate critical habitat for Allium munzii is
not a significant regulatory action under Executive Order 12866, and it
is not expected to significantly affect energy supplies, distribution,
or use because there are no pipelines, distribution facilities, power
grid stations, etc. within the boundaries of proposed critical habitat.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, or permits or who otherwise require approval or
authorization from a Federal agency for
[[Page 31580]]
an action may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Furthermore, to the extent that non-Federal entities are indirectly
impacted because they receive Federal assistance or participate in a
voluntary Federal aid program, the Unfunded Mandates Reform Act would
not apply; nor would critical habitat shift the costs of the large
entitlement programs listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments, because only Federal lands are involved in
the proposed designation. As such, Small Government Agency Plan is not
required. We will, however, further evaluate this issue as we conduct
our economic analysis and, as appropriate, review and revise this
assessment as warranted.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for Allium munzii. This preliminary
assessment concludes that this proposed rule does not pose significant
takings implications. However, we have not yet completed the economic
analysis for this proposed rule. Once the economic analysis is
available, we will review and revise this preliminary assessment as
warranted.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior policies, we
requested information from and coordinated development of this proposed
critical habitat designation with appropriate State resource agencies
in California.
The proposed designation of critical habitat in areas currently
occupied by Allium munzii imposes no additional significant
restrictions beyond those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The proposed designation of critical habitat may have some benefit to
the State and local resource agencies in that the areas essential to
the conservation of this species are more clearly defined, and the
primary constituent elements of the habitat necessary to the
conservation of this species are specifically identified. While this
definition and identification does not alter where and what federally
sponsored activities may occur, it may assist 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 Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate
critical habitat in accordance with the provisions of the Endangered
Species Act. 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 Allium
munzii.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collection for which OMB approval is required under the Paperwork
Reduction Act. Information collections associated with certain Act
permits are covered by an existing OMB approval and are assigned
clearance No. 1018-0094, Forms 3-200-55 and 3-200-56, with an
expiration date of July 31, 2004. Detailed information for Act
documentation appears at 50 CFR 17. This rule will not impose
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act
We have determined that an Environmental Assessment and/or an
Environmental Impact Statement as defined by the National Environmental
Policy Act of 1969 need not be prepared in connection with regulations
adopted pursuant to section 4(a) of the Endangered Species Act, as
amended. A notice outlining our reason for this determination was
published in the Federal Register on October 25, 1983 (48 FR 49244).
This proposed rule does not constitute a major Federal action
significantly affecting the quality of the human environment.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no Tribal lands essential for the conservation of Allium
munzii. Therefore, designation of critical habitat for the A. munzii
has not been proposed on Tribal lands.
References Cited
A complete list of all references cited herein, as well as others,
is available upon request from the Carlsbad Fish and Wildlife Office
(see ADDRESSES section).
Author
The primary authors of this notice are the Carlsbad Fish and
Wildlife Office staff (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
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations 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. 17.12(h) revise the entry for ``Allium munzii'' under
``FLOWERING PLANTS'' to read as follows:
17.12 Endangered and threatened plants.
* * * * *
(h) * * *
[[Page 31581]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
------------------------------------------------------ Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering plants
* * * * * * *
Allium munzii................. Munz's onion....... U.S.A. (CA)........ Liliaceae--Lily.... E 650 17.96(a) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.96(a), add critical habitat for Allium munzii in
alphabetical order under Family Liliaceae to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Liliaceae: Allium munzii (Munz's onion)
(1) Critical habitat unit for Allium munzii is depicted for
Riverside County, California, on the map below.
(2) The primary constituent elements of critical habitat for Allium
munzii are:
(i) Clay soil series of sedimentary origin (e.g., Altamont, Auld,
Bosanko, Claypit, Porterville), or clay lenses of such which may be
found as unmapped inclusions in other soil series, or soil series of
sedimentary or igneous origin with a clay subsoil (e.g., Cajalco, Las
Posas, Vallecitos); found on level or slightly sloping landscapes;
generally between the elevations of 985 ft and 3,500 ft (300 m and
1,068 m) above mean sea level (AMSL); and as part of open native or
non-native grassland plant communities and ``clay soil flora'' which
can occur in a mosaic with Riversidean sage scrub, chamise chaparral,
scrub oak chaparral, coast live oak woodland, and peninsular juniper
woodland and scrub; or
(ii) Alluvial soil series of sedimentary or igneous origin (e.g.,
Greenfield, Ramona, Placentia, Temescal) and terrace escarpment soils
found as part of alluvial fans underlying open native or non-native
grassland plant communities which can occur in a mosaic with
Riversidean sage scrub generally between the elevations of 985 ft and
3,500 ft (300 m and 1,068 m) above mean sea level (AMSL); or Pyroxenite
deposits of igneous origin found on Bachelor Mountain as part of non-
native grassland and Riversidean sage scrub generally between the
elevations of 985 ft and 3,500 ft (300 m and 1,068 m) above mean sea
level (AMSL); and
(iii) Clay soils or other soil substrate as described above with
intact, natural surface and subsurface structure that have been
minimally altered or unaltered by ground-disturbing activities (e.g.,
disked, graded, excavated, re-contoured).
(3) Critical habitat for Allium munzii does not include existing
features and structures, such as buildings, roads, aqueducts,
railroads, airport runways and buildings, other paved areas, lawns, and
other urban landscaped areas not containing one or more of the primary
constituent elements.
(4) Critical habitat unit for Allium munzii is described below.
(i) Map Unit 1: Riverside County, California. From USGS 1:24,000
quadrangle map Wildomar, California, land bounded by the following UTM
11 NAD27 coordinates (E, N): 467900, 3718200; 469000, 3718200; 469000,
3717300; 468500, 3717300; 468500, 3717500; 468100, 3717500; 468100,
3717400; thence east to the U.S. Forest Service, Cleveland National
Forest boundary at y-coordinate 3717400; thence northwest following the
U.S. Forest Service, Cleveland National Forest boundary to y-coordinate
371800; thence east to 467700, 3718000; 467700, 3718100; 467900,
3718100; returning to 467900, 3718200.
(ii) Note: Map of critical habitat unit follows:
BILLING CODE 4310-55-P
[[Page 31582]]
[GRAPHIC] [TIFF OMITTED] TP04JN04.000
Dated: May 27, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-12657 Filed 6-3-04; 8:45 am]
BILLING CODE 4310-55-C