2004 Federal Register, 69 FR 12553; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: March 17, 2004 (Volume 69, Number 52)]
[Rules and Regulations]
[Page 12553-12569]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr04-10]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG88

Endangered and Threatened Wildlife and Plants; Final Designation
of Critical Habitat for Cirsium loncholepis (La Graciosa thistle)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat pursuant to the Endangered Species Act of 1973, as
amended (Act), for Cirsium loncholepis (La Graciosa thistle).
Approximately 41,089 acres (ac) (16,628 hectares (ha)) are within the
boundaries of the critical habitat designation. The designated critical
habitat is in San Luis Obispo and Santa Barbara Counties, California.
Critical habitat identifies specific areas, both occupied and
unoccupied, that are essential to the conservation of a listed species
and that may require special management considerations or protection.
Section 7(a)(2) of the Act requires that each Federal agency, in
consultation with and with the assistance of the Service, ensure that
any action authorized, funded, or carried out by such agency is not
likely to jeopardize the continued existence of an endangered or
threatened species or result in the destruction or adverse modification
of critical habitat. Section 4 of the Act requires us to consider
economic and other relevant impacts of designating any particular area
as critical habitat. We solicited data and comments from the public on
all aspects of this designation, including data on economic and other
impacts of the designation.

DATES: This rule is effective April 16, 2004.

ADDRESSES: Comments and materials received, as well as supporting
documentation, used in the preparation of this final rule are available
for public inspection, by appointment, during normal business hours at
the Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service,
2493 Portola Road, Suite B, Ventura, CA 93003.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Ventura Fish and
Wildlife Office (see ADDRESSES section) (telephone 805/644-1766;
facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection
to Species

In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts 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

[[Page 12554]]

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 25 percent (306 species)
of the 1,211 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat. We address the habitat needs
of all 1,211 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 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 for our failure to designate
critical habitat, 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, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively 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. None of these costs result in any benefit
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

We proposed to designate critical habitat for Cirsium loncholepis
(La Graciosa thistle) on November 15, 2001 (66 FR 57559), along with
Eriodictyon capitatum (Lompoc yerba santa) and Deinandra increscens
ssp. villosa (Gaviota tarplant). We designated final critical habitat
for Eriodictyon capitatum and Deinandra increscens ssp. villosa on
November 7, 2002 (67 FR 67968), but did not designate C. loncholepis
due to ongoing analysis of its taxonomic status.
Dr. David Keil is currently studying the taxonomic relationship
between Cirsium scariosum (elk thistle) and C. loncholepis (David Keil,
California Polytechnic State University, San Luis Obispo (CPSU), pers.
comm. 2002). A highly variable species complex, C. scariosum occurs in
montane wetlands throughout California including the Klamath Ranges,
the Cascade Ranges, the Sierra Nevada, the Transverse Ranges, the South
Coast Range, and the Peninsular Ranges (Keil and Turner 1993). A small
number of C. scariosum populations occur at one of the headwaters of
the Santa Maria River in the Mount Pinos region, less than 95 miles
(mi) (153 kilometers (km)) inland of the C. loncholepis populations.
Recent research suggests that the populations of C. scariosum in the
Mount Pinos region and the Peninsular Ranges are related to C.
loncholepis and may collectively represent a single taxon (David Keil,
CPSU, in litt. 2003). Based on this analysis, Dr. Keil may propose a
new taxon, C. scariosum var. citrinum; the new taxon would not
supersede the current nomenclature until it is peer reviewed and
published. Dr. Keil intends to publish his new treatment of the genus
Cirsium in The Flora of North America (FNA). Publication of the FNA
volume containing the genus Cirsium will likely occur between 2005 and
2006 (Dieter Wilken, Santa Barbara Botanical Garden, in litt. 2003).
Because of delays in finalization of this taxonomic research, we
determined to proceed with the designation of critical habitat for C.
loncholepis based on its current taxonomic status. When the proposed
taxonomic changes are published, we will as necessary re-evaluate,
within the constraints of available funding, the critical habitat
designation and the listing of C. loncholepis.
Please refer to the proposed critical designation (66 FR 57559) for
an overview of Cirsium loncholepis biology, historic range, land
ownership and management, and a list of the on-going threats to the
species. Since the publication of the proposed critical habitat,
subsequent research on C. loncholepis has added to our understanding of
the species. For example, demographic studies found that the survival
and rapid growth of seedlings to a large vegetative (non-flowering)
state and large flowering individuals were the main demographic
influences driving population growth rate in the populations studied
(Lea 2002; Teed 2003). An investigation of seedling ecology found that
seedlings tolerate saturated soils better than larger, more mature
individuals, and higher seedling mortality occurs if soils dry out
quickly (Huber 2003). This study also found that mice forage on
seedlings and contribute to seedling mortality. Field observations
suggest that C. vulgare (bull thistle), an invasive non-native species,
may also threaten local populations of C. loncholepis due to
competition (Tina Teed, CPSU, pers. comm. 2002). The population
reported for Monterey County was erroneously identified as C.
loncholepis and is not being considered a component of this new taxon
(D. Keil, pers. comm., 2002).
Changes in land managers and the status of conservation easements
within the proposed critical habitat units have occurred since
publication of the

[[Page 12555]]

proposed rule. The Coastal Conservancy now holds a conservation
easement for the western portion of the private parcel owned by the
Unocal Corporation. The Center for Natural Land Management manages the
parcel owned by the County of Santa Barbara (Rancho Guadalupe Dunes
County Park) that was formerly managed by the Trust for Public Lands.
This County of Santa Barbara parcel is south of the Unocal parcel and
supports suitable habitat though no plants have been documented from
that location. The Guadalupe-Nipomo Dunes National Wildlife Refuge is
currently negotiating the development of a conservation easement on the
entire Unocal parcel. The dune area and shoreline of the Santa Maria
River mouth would then be managed as part of the refuge. Long-term
management plans for C. loncholepis have not yet been developed for any
of these areas.

Previous Federal Action

A proposed rule to list Cirsium loncholepis and three other
species, as endangered was published in the Federal Register on March
30, 1998 (63 FR 15164). Please refer to the proposed rule listing the
species for information on previous Federal actions prior to March 30,
1998 and to the proposed designation of critical habitat (66 FR 57559,
57564) for information on previous Federal actions prior to November
15, 2001. The proposed critical habitat rule also contains information
regarding the litigation history related to the listing and designation
of critical habitat for this species (Southwest Center for Biological
Diversity and California Native Plant Society v. U.S. Fish and Wildlife
Service et al. (Case No. C99-2992 (N.D.Ca.)).
The proposed rule to designate critical habitat for Cirsium
loncholepis and two other species was signed on November 2, 2001, and
published in the Federal Register on November 15, 2001 (66 FR 57559).
In the proposal, we determined it was prudent to designate
approximately 66,830 ac (27,046 ha) of land in Santa Barbara and San
Luis Obispo Counties as critical habitat for C. loncholepis,
Eriodictyon capitatum, and Deinandra increscens ssp. villosa.
Publication of the proposed rule opened a 60-day public comment period,
which closed on January 14, 2002.
On May 7, 2002, we published a notice announcing the reopening of
the comment period on the proposal to designate critical habitat for
Cirsium loncholepis, Eriodictyon capitatum, and Deinandra increscens
ssp. villosa, and a notice of availability of the draft economic
analysis on the proposed determination (67 FR 30641). This second
public comment period closed on June 6, 2002.
In August 2002, we agreed through a joint stipulation with the
plaintiffs (Southwest Center for Biological Diversity and California
Native Plant Society) to a 1-year extension on the publication date of
a final rule for Cirsium loncholepis critical habitat to October 25,
2003. A delay in publication was proposed by the plaintiffs because of
the uncertainty in the taxonomic status of C. loncholepis. (Please
refer to the Background section of this rule for more information
regarding C. loncholepis taxonomic issues.) A final rule designating
critical habitat for the other two species was issued October 25, 2002
(67 FR 67968, November 7, 2002).
On September 12, 2003 we filed with the court a motion to modify
its Stipulated Order Regarding Critical Habitat Designation, seeking
additional time due to the continued uncertainty regarding the
taxonomic status of Cirsium loncholepis and because appropriations
provided by Congress in fiscal year 2003 were insufficient to cover
this action. On November 6, 2003, the judge denied our motion for
further extension. The Service is issuing this designation in
compliance with the court's order.

Summary of Comments and Recommendations

We contacted appropriate Federal, State, and local agencies,
scientific organizations, and other interested parties and invited them
to comment on the proposed critical habitat for the three species. In
addition, we invited public comment through the publication of a notice
in the San Luis Obispo Tribune on November 18, 2001, and the Santa
Barbara News-Press on November 27, 2001.
We received individually written letters from 11 parties, which
included 4 designated peer reviewers, 1 Federal agency, and 1 State
agency. Of the 11 parties responding individually, 6 supported the
proposed designation, 3 were neutral, and 2 were opposed. Of the
responding parties, five commented specifically on Eriodictyon
capitatum and Deinandra increscens ssp. villosa, while three made
general comments for all three taxa, and three commented specifically
on Cirsium loncholepis.
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited independent opinions from four
knowledgeable individuals who have expertise with the species, with the
geographic region where the species occurs, and/or familiarity with the
principles of conservation biology. All four of the peer reviewers
supported the proposal and provided us with comments, which are
included in the summary below and incorporated into the final rule.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat and Cirsium loncholepis, Eriodictyon capitatum, and Deinandra
increscens ssp. villosa. We previously addressed comments regarding
critical habitat for E. capitatum and D. increscens ssp. villosa in a
separate rule that did not include C. loncholepis (67 FR 67968). A peer
review comment relating to the uncertainty in the taxonomic status of
C. loncholepis prompted the separation of C. loncholepis from the final
critical habitat designation for the other two species.
The comments were grouped according to peer review or public
comments. Two general issues arose in the public comments that related
specifically to the proposed critical habitat determination. These
comments are addressed in the summary below. We did not receive any
comments on the draft economic analysis of the proposed determination.
However, we did receive one comment on economic issues during the first
comment period on the proposed designation.

Peer Review Comments

(1) Comment: A peer reviewer suggested that we delay publication of
a final rule for Cirsium loncholepis pending the determination of its
taxonomic status. Recent research on C. loncholepis raises significant
questions regarding the taxonomy of the species.
Our Response: We acknowledge the uncertainty in the taxonomy of
Cirsium loncholepis. In 2002, we discussed with the plaintiffs, the
Center for Biological Diversity and California Native Plant Society,
appropriate action on the critical habitat designation given the
questions raised by recent review of Cirsium loncholepis taxonomy
(Please refer to the Background section of this rule for information
regarding the study of the taxonomic relationship of C. loncholepis and
C. scariosum.). We agreed, through a joint stipulation with the
plaintiffs, to a 1-year extension until October 25, 2003 for completion
of the final critical habitat determination for C. loncholepis.
However, resolution of the taxonomic status of C. loncholepis did not
occur during the 1-year extension. Given the continuing uncertainty
regarding resolution of the taxonomic issue, the Service determined to
proceed with the final determination.

[[Page 12556]]

(2) Comment: One peer reviewer recommended that we include all
apparently suitable unoccupied habitats within the range of the species
in our critical habitat designation. The reviewer stated that it is
unclear from the proposed rule how many unoccupied areas or unsurveyed
areas within the historical range of these taxa have been excluded from
the proposed rule. Including these areas would improve the chances for
recovery by increasing the habitat that would be protected and thus
available for colonization.
Our Response: We acknowledge that all areas within the historical
range of Cirsium loncholepis have not been surveyed. It is possible
that suitable habitat for the taxon exists but remains unidentified.
While additional surveys would help in further defining the
distribution of C. loncholepis, we are required to designate as
critical habitat those areas we know to be essential to the
conservation of the species, using the best information available to
us. We included in our critical habitat designation areas with the soil
types and vegetation communities necessary to support C. loncholepis
that are contiguous with the known locations of the taxon and are
essential to the conservation of the species.
Within the geographic area occupied by Cirsium loncholepis, we
designate only areas currently known to be essential to the
conservation of the species. Essential areas already have the features
and habitat characteristics that are necessary to sustain the species.
We do not speculate about what areas might be found to be essential if
better information became available, or what areas may become essential
over time. If the information available at the time of designation does
not show that an area provides essential life cycle needs of the
species, then the area is not included in the critical habitat
designation. Within the geographic area occupied by the species, we do
not designate areas that do not now have the primary constituent
elements, as defined at 50 CFR 424.12(b), which provide essential life
cycle needs of the species.
We agree that future conservation and recovery of the species
depends not only on the areas it currently occupies, but also on
providing the opportunity for it to shift in distribution over time,
and to expand its current distribution. We have addressed this by
designating as critical habitat the areas that surround existing
populations and contain the primary constituent elements and are,
therefore, essential to the conservation of Cirsium loncholepis. The
number and location of standing plants (i.e., above-ground expression)
in a population varies annually due to a number of factors, including
the amount and timing of rainfall, temperature, soil conditions, and
the extent and nature of the seedbank.
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. Critical habitat
designations do not signal that habitat outside the designation is
unimportant or not required for recovery. Areas outside the critical
habitat designation will continue to be subject to conservation actions
that may be implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the applicable prohibitions of section 9 of the Act, as
determined on the basis of the best available information at the time
of the action.
(3) Comment: A peer reviewer commented that the Ca[ntilde]ada de
las Flores unit of Cirsium loncholepis critical habitat appears to be
marginal in its contribution to the conservation and recovery of the
species. Much of the area has been converted from grazing, which is
generally compatible with the thistle, to intensive agriculture in the
form of vineyards. The thistle may not be able to survive and recover
under this change in land use.
Our Response: No vineyards currently occur within the Ca[ntilde]ada
de las Flores Unit. Much of the area surrounding the Ca[ntilde]ada de
las Flores unit, specifically within and south of Los Alamos Valley,
has undergone recent land use changes in the form of vineyard
development. However, the majority of the property within the
Ca[ntilde]ada de las Flores unit remains under a grazing regime with a
small amount of agricultural row crops. The majority of the property in
this unit is owned by Chevron, which is in the process of closing,
excavating, and capping old well sites on the South Los Flores Ranch. A
vineyard developer has approached the Service and Santa Barbara County
about vineyard development on property within the southern portion of
the Unit; less than 10 percent of the unit is proposed for vineyard
conversion in the current plans (Bridget Fahey, Service biologist,
pers. comm. 2002). Vineyard development on the property would likely
occur in upland areas, away from marsh and wetland habitat that support
Cirsium loncholepis and the federally endangered Santa Barbara Distinct
Population Segment (DPS) of the California tiger salamander (Ambystoma
californiense). Measures developed to protect wetland habitat on the
property should be beneficial for C. loncholepis as well as the
California tiger salamander. We included the Ca[ntilde]ada de las
Flores unit in our critical habitat designation because it contains the
primary constituent elements and characteristics that make it essential
for the conservation of C. loncholepis.

Public Comments

Issue 1: Site-Specific Areas and Other Comments

(4) Comment: A commenter requested that the Oceano Dunes State
Vehicular Recreation Area be excluded from the Pismo-Orcutt unit of
Cirsium loncholepis critical habitat. Designating critical habitat in
this area would diminish, if not completely eliminate, opportunities
for public use of the dunes for recreational activities. The Oceano
Dunes State Vehicular Recreation Area is not necessary for the survival
and recovery of the species when considering the large area
(approximately 44,000 ac) that would be protected as critical habitat.
Our Response: We are sensitive to the concerns of individuals
regarding the effects of critical habitat designation on private land
or public lands under State or local jurisdiction. We agree that
critical habitat should include only areas essential to the
conservation of Cirsium loncholepis. Upon review of the area
encompassed by the Oceano Dunes State Vehicular Recreation Area
(ODSVA), we have removed from the final designation the heavily used
off-highway vehicle (OHV) riding area within the ODSVA because the area
is not essential for the conservation of Cirsium loncholepis (see
Summary of Changes from the Proposed Rule section). However, we have
retained the remaining portion of the ODSVA in our final designation
because these areas are not disturbed and contain habitat essential for
C. loncholepis. Unless a Federal nexus (e.g., Federal funding, Federal
permit, or other Federal actions) exists, the critical habitat
designation poses no regulatory burden and should not affect activities
at the Oceano Dunes State Vehicular Recreation Area. If a Federal nexus
is found to exist, we will work with the State (or other non-Federal
entity) and appropriate Federal agency to attempt to develop a project
that can be completed without jeopardizing the continued existence of
the C. loncholepis or adversely modifying its critical habitat.
We have analyzed the potential takings implications of designating
critical habitat for Cirsium loncholepis. This final rule will not take
private,

[[Page 12557]]

State, or other non-Federal property. Owners and users of non-Federal
recreational areas that are included in the designated critical habitat
will continue to have an opportunity to utilize private and public
property in ways consistent with the conservation of C. loncholepis.
Activities that do not have a Federal nexus are not restricted by the
designation of critical habitat.
(5) Comment: California Department of Transportation (DOT)
requested an exclusion of areas within the DOT operating Right of Way
(ROW) in several, unspecified units of critical habitat for Cirsium
loncholepis, where they overlap with the transportation system of
California. The DOT requested an exclusion to reduce the need for
habitat effects determinations for the taxa where routine disturbance
occurs as a result of regular maintenance and operational improvements.
Our Response: In the region covered by this critical habitat
designation, State and Federal roads appear to be within the Pismo-
Orcutt unit. To clarify, we are not including roads that border the
critical habitat units in our designation. The areas adjacent to the
State roads that extend within the Pismo-Orcutt unit contain habitat
essential to the conservation of Cirsium loncholepis as defined by the
primary constituent elements. Therefore, we cannot justify excluding
these particular areas from the critical habitat unit.
Due to mapping and time constraints, we did not map critical
habitat in sufficient detail to exclude all road surfaces, although
these would not contain the primary constituent elements essential for
the conservation of this taxon. Therefore, we do not view road surfaces
within the units as critical habitat for Cirsium loncholepis. Federal
activities limited to roads and other paved or graveled areas would not
trigger a section 7 consultation unless they affect the species or one
or more of the primary constituent elements in adjacent critical
habitat.
Designation of critical habitat in areas occupied by Cirsium
loncholepis is not likely to result in a regulatory burden
substantially above that already in place due to the presence of the
listed species. To streamline the regulatory process, the DOT may
request section 7 consultation at a programmatic level for ongoing
activities that would result in adverse effects to the taxon or its
critical habitat.

Issue 2: Economic Issues

(6) Comment: We received one comment recommending we use the
contingent valuation method (CVM) to determine the hypothetical non-use
values for Cirsium loncholepis and the other two species for which
critical habitat was concurrently proposed.
Our Response: Some economists recognize that in addition to a ``use
value'' that society places on natural resources these goods may also
exhibit a ``non-use value'' by society. For example, while many people
may elect to visit a public park and ``use'' it for a variety of
recreational purposes, the presence of this park may provide a variety
of benefits to additional members of society even though their
enjoyment may not be directly observable. Certain individuals may also
derive benefits from the park because of the protection it offers to
certain natural resources including a diverse ecosystem that harbors
endangered and threatened species. While these members of society may
value the park merely for its existence, their behavior is not directly
observable and thus economists have developed certain tools, including
CVM, for measuring these values.
CVM is an approach used by economists to directly elicit non-use
values from individuals through the use of carefully designed survey
instruments. A CVM study will provide respondents with a framework
wherein they are asked to value the resource given the parameters of
the framework. For CVM to work properly, and provide meaningful
information on non-use values, considerable resources must be expended
to adequately design and administer this tool. We have not employed CVM
studies to capture the non-use values certain individuals may place on
critical habitat designation.
In conducting our analyses for the La Graciosa thistle, we reviewed
economic literature to determine whether or not there are any existing
studies that can provide information that would allow us to better
describe and accurately quantify such benefits associated with the
survival and recovery of the La Graciosa thistle and its habitat.
However, even when such studies are identified, they usually do not
allow for the separation of the benefits of listing (including the
Act's take provisions) from the benefits of critical habitat
designation.
While we are often unable to quantify benefits that may be
associated with the designation, our analyses do discuss potential
benefits in a qualitative manner. This discussion is not intended to
provide a complete analysis of the benefits that could result from
section 7 of the Act in general or critical habitat designation in
particular. In short, we believe that we are currently best able to
express the benefits of critical habitat designation in biological
terms that can be weighed against the expected cost impacts of the
rulemaking.

Summary of Changes From the Proposed Rule

In preparation for development of our final designation of critical
habitat for Cirsium loncholepis, we reviewed comments received on the
proposed designation of critical habitat. In addition to minor
clarifications and incorporation of additional information on the
species' biology and taxonomy, we made four changes to our proposed
designation, as follows:
(1) We modified two of the three primary constituent elements from
the proposed designation by including additional habitats, excluding
two plant communities, and refining the plant species associated with
Cirsium loncholepis habitats. We did not include seeps in our proposed
list of C. loncholepis habitats for primary constituent element one.
Because hillside seeps provide habitat for the species in the
Ca[ntilde]ada de las Flores critical habitat unit, we have added seeps
to the list of habitats. Intermittent streams also provide habitat for
the species, specifically where sub-surface water is close to the
surface or exposed along such drainages. For this reason, we have also
included intermittent streams. In primary constituent element two of
the proposed designation, we included coastal dune and coastal scrub as
being essential plant communities. However, coastal dune and coastal
scrub plant communities do not provide the moist soils considered
necessary for habitats occupied by C. loncholepis, and therefore we
have removed these communities from the final list. Coastal dune
ecosystems contain lakes and other wetlands suitable for C.
loncholepis, and these wetland habitats are not dominated by plant
species associated with coastal dune and coastal scrub plant
communities. In primary constituent element two, we kept the plant
species typically associated with wetland habitats and removed plants
that are not obligate wetland species including Toxicodendron
diversilobum (poison oak), Distichlis spicata (salt grass), and
Baccharis pilularis (coyote brush).
(2) We modified the boundaries of the proposed units to be
consistent with other recent critical habitat designations. The
boundaries are now defined by points that lie on a 100-meter-by-100-
meter grid in the Universal Transverse Mercator (UTM) coordinate
system.
(3) When making adjustments to the Pismo-Orcutt unit, we made
slight modifications to exclude developed

[[Page 12558]]

areas that were missed during assessment of the 2000 aerial photos.
Developed areas are generally not considered essential habitats for
Cirsium loncholepis because of the lack of primary constituent elements
in these areas.
(4) We excluded the heavily used off-highway vehicle (OHV) riding
area, which is a portion of the Oceano Dunes State Vehicular Recreation
Area, because the area is not essential for the conservation of Cirsium
loncholepis. OHV disturbance in the riding area has inhibited the
development of a natural dune structure that includes the formation of
wetlands which could support C. loncholepis. The riding area consists
mostly of shifting, open sand that is unsuitable habitat for C.
loncholepis. A small number of remnant wetland habitats exist in the
riding area that might support the species, but these are fenced off
from OHV disturbance and too few to be essential to the conservation of
the species. The highly disturbed riding area that we are excluding is
only a small part of the much larger Guadalupe Dune complex. The
majority of the known extant populations of C. loncholepis are
restricted to undisturbed wetlands of the Guadalupe Dune complex and
the Santa Maria River mouth, and we have therefore retained the vast
majority of the dune complex and a large part of the river in the
Pismo-Orcutt unit.
As a result of using the 100-meter-by-100-meter grid method for
defining the boundaries and the removal of developed areas missed in
the original proposed delineation, the Pismo-Orcutt unit decreased in
size by 1,468 ac (595 ha) and the Ca[ntilde]ada de las Flores unit
decreased in size by only 137 ac (56 ha). With the removal of the OHV
riding area, the Pismo-Orcutt unit decreased in size by an additional
1,621 ac (656 ha).

Critical Habitat

Section 3 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) which may require special management considerations or
protection; and (ii) specific areas outside the geographical area
occupied by the species at the time it is listed upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions authorized, funded, or carried
out by a Federal agency. Section 7 of the Act also requires conferences
on Federal actions that are likely to result in the destruction or
adverse modification of proposed critical habitat. Aside from the added
protection that may be provided under section 7, the Act does not
provide other forms of protection to lands designated as critical
habitat. Because consultation under section 7 of the Act does not apply
to activities on private or other non-Federal lands that do not involve
a Federal nexus, critical habitat designation would not afford any
additional regulatory protections under the Act against such
activities.
In order to be included in a critical habitat designation, the
habitat must first be ``essential to the conservation of the species.''
Critical habitat designations identify, to the extent known, and using
the best scientific and commercial data available, habitat areas that
are 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 except in those circumstances
determined by the Secretary. 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.''
To be included in a critical habitat designation, the Service must
also find that habitat may require special management considerations or
protections. As discussed in more detail below, with respect to the
individual units, the Service finds that the two units designated as
critical habitat for the C. loncholepis may require special management
considerations or protections due to threats to the species and/or its
habitat. Such special management considerations or protections may
include management of off-highway vehicle activity, irrigation
practices, groundwater pumping, invasive, non-native species, and
grazing, as well as protecting the composition of native plant and
animal communities within critical habitat units. Section 4(b)(2) of
the Act requires that we take into consideration the economic impact,
and any other relevant impact, including impacts to National security,
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 Endangered Species
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. This policy 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, scientific status surveys and studies, biological
assessments, or other unpublished materials.
Section 4 of the Act requires that we designate critical habitat
based on 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
necessary for the recovery of the species. For these reasons, it is
important to understand that critical habitat designations do not
signal that habitat outside the designation is unimportant or may not
be required for recovery. Areas outside the critical habitat
designation will continue to be subject to conservation actions that
may be implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the applicable prohibitions of section 9 of the Act, as
determined on the basis of the best available information at the time
of the action. Federally funded or assisted projects affecting listed
species outside their designated critical habitat areas may thus 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

[[Page 12559]]

planning efforts if new information available to these planning efforts
calls for a different outcome.

Methods

As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12), we used the best scientific information available to determine
areas that contain the physical and biological features that are
essential for the conservation of Cirsium loncholepis. This included
information from the California Natural Diversity Data Base (CNDDB
2001), soil survey maps (U.S. Soil Conservation Service 1972), digital
versions of the U.S. Geological Survey 7.5' quadrangles, aerial
photography, recent biological surveys and reports, additional
information provided by interested parties, and discussions with
representatives of California Department of Fish and Game (CDFG), the
Santa Barbara County Planning Department, and other botanical experts.
We also conducted site visits at several locations managed by local,
State, or Federal agencies, including Guadalupe-Nipomo Dunes National
Wildlife Refuge, Oceano Dunes State Vehicle Recreation Area, and Pismo
Dunes State Preserve. We also visited the portion of Guadalupe Dunes
owned by the Unocal Corporation.
We delineated the proposed critical habitat units for Cirsium
loncholepis by creating data layers in a geographic information system
(GIS) format of the areas of known occurrences of the taxon using the
information sources described above and aerial photography available
through TerraServer (http://terraserver.homeadvisor.msn.com). Where

possible, we defined the boundaries of proposed critical habitat to
conform to roads, known landmarks, and topographic features. To create
the legal descriptions of the boundaries, we used the UTM coordinates
that defined the proposed boundary.
For the final rule we made several modifications to the boundaries
of proposed critical habitat. We overlaid the boundaries of proposed
critical habitat on aerial imagery from April 2000 (AirPhoto USA), and
an effort was made to exclude developed areas. We excluded from
critical habitat the off-highway vehicle (OHV) riding area in the
Oceano Dunes State Vehicular Recreation Area (Recreation Area). We used
GIS data from Thomas Reid & Associates, a consultant of the Recreation
Area, who approximated the perimeter of the OHV riding area. With the
exception of the boundary excluding the OHV riding area just described,
the boundaries were modified to conform to a UTM coordinate system grid
with a cell size of 100-meters by 100-meters. To accomplish this
modification, the points defining the boundaries of proposed critical
habitat were moved to an adjacent point lying on the UTM grid of 100-
meter cells. Defining critical habitat boundaries to be coincident with
points on a UTM grid is consistent with current practice and is
intended to simplify interpretation of the coordinates while
diminishing the number of coordinates necessary to define a boundary.
We did not conform the boundary along OHV riding area to the UTM grid
of 100-meter cells because the resulting boundary would greatly deviate
from the boundary marked for visitors to the Recreation Area; we
believe that a boundary coincident with the OHV riding area is easily
understood by Recreation Area visitors and simplifies administration
for State Parks.

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 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 breeding, reproduction, or rearing of
offspring; sites for germination or seed dispersal; and habitats that
are protected from disturbance or are representative of the historic
geographical and ecological distributions of a species.
All areas designated as critical habitat for Cirsium loncholepis
are within the species' historic range and contain one or more of the
physical or biological features (primary constituent elements)
identified as essential for the conservation of each species. Much of
what is known about the specific physical and biological requirements
of C. loncholepis is described in the Proposed Designation of Critical
Habitat for C. loncholepis.
The designated critical habitat is designed to provide sufficient
habitat to maintain self-sustaining populations of Cirsium loncholepis
throughout the species' range, and provide those habitat components
essential for the conservation of the species. Habitat components that
are essential for C. loncholepis are found in wetland communities where
physical processes, including the pattern of prevailing coastal winds,
support natural dune dynamics in coastal areas, or occasional
floodplain depositional events in inland areas.
Based on our knowledge to date, the primary constituent elements of
critical habitat for Cirsium loncholepis consist of:
(1) Moist, sandy soils associated with dune swales, margins of dune
lakes and marshes, seeps, intermittent streams, and river margins from
the Guadalupe Dune complex along the coast and inland to Ca[ntilde]ada
de las Flores;
(2) Plant communities that support associated wetland species,
including: Juncus spp. (rush), Scirpus spp. (tule), and Salix spp.
(willow); and
(3) Hydrologic processes, particularly the maintenance of a stable
groundwater table supporting the soil moisture regime that appears to
be favored by Cirsium loncholepis.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the areas
determined to be essential for conservation may require special
management considerations or protections. The Pismo-Orcutt unit may
require special management considerations or protections due to the
threats to the species and its habitat posed by erosion or compaction
of soils that could threaten wetlands, coastal dunes and swales;
changes in surface or subsurface flows upon which C. loncholepis
depends that may reduce or remove the essential hydrological regime
that supports the species; invasions of non-native plants that may take
over habitat for the species; habitat fragmentation that detrimentally
affects plant-pollinator interactions, leading to a decline in species
reproduction and increasing susceptibility to non-native plant
invasion; and excessive grazing that can lead to changes in essential
habitat conditions (e.g., increases in soil temperature resulting in
loss of moisture, decreases in plant cover, and increases in non-native
species). Currently, grazing, agriculture conversion, agricultural
practices, competition from non-native plant species, off-road vehicle
traffic, and oil and gas decommissioning activities are ongoing in the
Pismo-Orcutt unit. The Canada de las Flores unit may require special
management considerations or protections due to the threats to the
species and its habitat posed by erosion or compaction of soils that
could threaten wetlands, coastal dunes and swales; changes in surface
or subsurface flows upon which C. loncholepis

[[Page 12560]]

depends that may reduce or remove the essential hydrological regime
that supports the species; invasions of non-native plants that may take
over habitat for the species; habitat fragmentation that detrimentally
affects plant-pollinator interactions, leading to a decline in species
reproduction and increasing susceptibility to non-native plant
invasion; and excessive grazing that can lead to changes in essential
habitat conditions (e.g., increases in soil temperature resulting in
loss of moisture, decreases in plant cover, and increases in non-native
species). Currently, grazing, agriculture conversion, competition from
non-native plant species, and oil and gas decommissioning are ongoing
in the Canada de las Flores Unit.

Criteria Used To Identify Critical Habitat

Throughout this designation, when selecting areas of critical
habitat we made an effort to avoid developed areas, such as housing
developments, that are unlikely to contribute to the conservation of
Cirsium loncholepis. However, we did not map critical habitat in
sufficient detail to exclude all developed areas, or other lands
unlikely to contain the primary constituent elements essential for the
conservation of C. loncholepis. Areas within the boundaries of the
mapped units, such as buildings, roads, parking lots, railroads,
airport runways and other paved areas, lawns, and other urban
landscaped areas will not contain any of the primary constituent
elements and thus do not constitute critical habitat for the species.
Therefore, Federal actions limited to these areas would not trigger a
section 7 consultation unless it is determined that such actions may
affect the species and/or adjacent designated critical habitat.
During development of this rule, we considered the role of
unoccupied habitat in the conservation of Cirsium loncholepis. Due to
the historic loss of the habitats that supported the taxon, we believe
that conservation and recovery of this species depends not only on
protecting it in the limited areas that it currently occupies, but also
on providing the opportunity to increase its distribution by protecting
currently unoccupied habitat within its historic range.
We consider both units designated as critical habitat for Cirsium
loncholepis to be occupied by the species. Determining the specific
areas that this taxon occupies is difficult for several reasons: (1)
The methods for mapping the current distributions of C. loncholepis can
be variable, depending on the scale at which groups of individuals are
recorded (e.g., many small groups versus one large group); and (2)
depending on the climate and other annual variations in habitat
conditions, the extent of the above-ground distributions may either
shrink and temporarily disappear, or, as a residual soil seedbank is
expressed, enlarge and cover a more extensive area. Therefore, the
inclusion of currently unoccupied habitat interspersed with patches of
occupied habitat in the critical habitat units reflects the dynamic
nature of the habitat and the life history characteristics of the
taxon. We have also included a larger area of currently unoccupied
habitat in the Pismo-Orcutt unit, extending from the known coastal
locations of the species inland to Orcutt. This habitat is essential to
the conservation of the species because (1) it provides connectivity
between the known locations on the coast and those habitats containing
the primary constituent elements for C. loncholepis in the more
interior portions of the unit including the type locality for the
species (The type locality is the geographic location where the primary
type was collected. The type specimen (also known as holotype) is the
original specimen from which a description of a new species is made.),
(2) it contains the primary constituent elements for the species and
(3) it provides potentially suitable habitat for introductions needed
for recovery of the species.
We considered the status of habitat conservation planning (HCP)
efforts during the development of this rule. We may exclude HCPs from
critical habitat designation if the benefits of excluding them would
outweigh the benefits of including them. Currently, no HCPs include
Cirsium loncholepis as a covered species.

Critical Habitat Designation

The critical habitat areas described below include one or more of
the primary constituent elements described above and constitute our
best assessment at this time of the areas needed for the conservation
of Cirsium loncholepis. Critical habitat includes habitat throughout
the species' current range in the United States (Santa Barbara and San
Luis Obispo Counties, California). Lands designated as critical habitat
are under Federal, State, local, and private ownership. Federal lands
include areas owned and managed by the Service. State lands include
areas owned and managed by the California Department of Parks and
Recreation and the California Department of Fish and Game (CDFG). Local
lands include parks owned by the County of Santa Barbara. Private lands
include areas that are being managed for conservation by private
landowners, as well as those that are being managed for agriculture,
ranchlands, or oil field decommissioning. Each of the critical habitat
units is considered to be occupied by either seeds as part of the
seedbank or standing plants, and to contain habitat that include the
specific soils, hydrology, or plant communities that are essential for
this taxon.
Critical habitat designated for Cirsium loncholepis includes two
units, both of which currently sustain the species. Protection of both
units is essential for the conservation of the species because the
geographic range that C. loncholepis occupies has been reduced to so
few sites that the species is in danger of extinction. Both units
contain habitat components that are essential for the conservation of
C. loncholepis. The areas being designated as critical habitat contain
the appropriate marsh, dune wetland, and riparian habitat that support
C. loncholepis, including the sandy soils, the associated plant
communities, and a groundwater table that maintains wet soil
conditions. We are designating approximately 41,089 ac (16,628 ha) of
land as critical habitat for C. loncholepis. Approximately 5 percent of
this area consists of Federal lands, approximately 5 percent are State
lands, less than 1 percent are county lands, and approximately 89
percent are private lands (Table 1). Both units maintain the ecological
processes that support the habitats containing the primary constituent
elements. Within the units, these habitats allow expansion of the
existing populations by maintaining connectivity through pollinators
and wind dispersal.
A brief description of both critical habitat units is given below:

Pismo-Orcutt Unit

The Pismo-Orcutt Unit consists of coastal dunes, swales, and
wetlands extending from Grover City south to Mussel Point, just north
of Point Sal, and then extending inland across the Santa Maria Valley
to the area of Orcutt. This unit includes a portion of the Pismo Dunes
State Preserve, non-OHV riding areas of Oceano Dunes State Vehicular
Recreation Area, the Guadalupe-Nipomo Dunes National Wildlife Refuge,
Rancho Guadalupe Dunes County Park, and privately owned lands. In the
vicinity of Orcutt, some of the private lands included in this unit
have been designated as open space by Santa Barbara County (1998). The
coastal portion of this unit contains almost all of the known
populations of

[[Page 12561]]

Cirsium loncholepis, including the largest population known to exist
anywhere on privately owned lands, the Unocal parcel near the mouth of
the Santa Maria River, as well as numerous smaller populations that are
scattered along the coast north to Grover City. Maintaining all of
these populations is essential for this species to survive through a
variety of natural and human-induced environmental changes as well as
stochastic events (e.g., floods). The more interior portions of this
unit are primarily within the lower portion of the Santa Maria River
Valley (below 80 ft (24 m) in elevation) and have been placed in
agricultural production. However, fragments of numerous small marshes,
wetlands, and drainages can still be found interspersed with
agricultural fields. The prevailing winds from the stretch of coast
between Pismo Beach and the mouth of the Santa Maria River blow
southeast across the lower Santa Maria River Valley in the direction of
Orcutt and beyond to Ca[ntilde]ada de las Flores. The prevailing winds
cause seed dispersal, which explains the elongated pattern in
distribution of individual plants within known coastal populations.
Wind dispersal is important for the maintenance and expansion of
existing populations of this species. Intervening habitat between the
coastal populations and the more interior portions of the Pismo-Orcutt
unit is therefore important to maintain connectivity through pollinator
activity and seed dispersal mechanisms, and to provide suitable habitat
for introduction efforts needed for recovery of the species.

Ca[ntilde]ada de Las Flores Unit

The Ca[ntilde]ada de Las Flores Unit consists of wetland habitat,
in particular seeps, at the head of Ca[ntilde]ada de las Flores
watershed, northwest of the town of Los Alamos. All of the lands in
this unit are privately owned. The two known populations of Cirsium
loncholepis in this unit encompass the easternmost distribution of the
species; consequently they occur under slightly different environmental
conditions, specifically at a higher elevation (200 ft (61 m) elev.)
and warmer climate than the coastal populations. These are the only
known populations that represent the more interior distribution of the
species. Preserving plants surviving in these slightly different
environmental conditions (e.g., seasonal temperatures, type of wetland
habitat, adjacent plant communities) may be important for the long-term
survival and conservation of the species because they may contain
genetic features different than those in other parts of the range.

Table 1.--Approximate Designated Critical Habitat Unit Areas for Cirsium loncholepis in Acres (ac) (Hectares (ha)) by Land Ownership \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
County and other
Unit name State Private local jurisdictions Federal Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pismo-Orcutt....................... 1,946 ac.............. 33,954 ac............. 29 ac................ 2,333 ac............. 38,262 ac
(787 ha).............. (13,741 ha)........... (12 ha).............. (944 ha)............. (15,484 ha)
Ca[ntilde]ada de las Flores........ 0 ac.................. 2,827 ac.............. 0 ac................. 0 ac................. 2,827 ac
(0 ha)................ (1,144 ha)............ (0 ha)............... (0 ha)............... (1,144 ha)
¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to jeopardize the continued existence of any threatened or
endangered species or result in the destruction or adverse modification
of critical habitat designated for such a species. Destruction or
adverse modification of critical habitat occurs when a Federal action
directly or indirectly alters critical habitat to the extent it
appreciably diminishes the value of critical habitat for the
conservation 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.
In our regulations at 50 CFR 402.02, we define destruction or
adverse modification as ``a direct or indirect alteration that
appreciably diminishes the value of critical habitat for both the
survival and recovery of a listed species. Such alterations include,
but are not limited to, alterations adversely modifying any of those
physical or biological features that were the basis for determining the
habitat to be critical.'' However, in a March 15, 2001, decision of the
United States Court of Appeals for the Fifth Circuit (Sierra Club v.
U.S. Fish and Wildlife Service, et al., 245 F3d 434), the Court found
our definition of destruction or adverse modification to be invalid. In
response to this decision, we are reviewing the regulatory definition
of adverse modification in relation to the conservation of the species.
Section 7(a) of the Act requires Federal agencies to 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) of the Act requires Federal agencies to
confer with us on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. Conference reports
provide conservation recommendations to assist the action 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 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 (see 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

[[Page 12562]]

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 Director
believes would avoid the likelihood of jeopardizing the continued
existence of the listed species or resulting in the destruction or
adverse modification of critical habitat.
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 conference with us on actions for which formal
consultation previously has been completed if those actions may affect
designated critical habitat or adversely modify or destroy proposed
critical habitat.
Activities on Federal lands that may affect Cirsium loncholepis or
its critical habitat will require section 7 consultation. 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 any other activity requiring Federal
action (i.e., funding, authorization) will also continue to be subject
to the section 7 consultation process. Federal actions not affecting C.
loncholepis or its critical habitat, as well as actions on non-Federal
lands that are not federally funded or permitted, will not require
section 7 consultations with respect to this taxon.
Both of the units we are designating are occupied by either above-
ground plants or a seedbank of the taxon, and Federal agencies already
consult with us on activities in areas where the species may be present
to ensure that their actions do not jeopardize the continued existence
of the species. Each unit also contains some areas that are considered
unoccupied. However, we believe, and the economic analysis discussed
below illustrates, that the designation of critical habitat is not
likely to result in a significant regulatory burden above that already
in place due to the presence of the listed species. Few additional
consultations are likely to be conducted due to the designation of
critical habitat. Actions on which Federal agencies consult with us
include, but are not limited to:
(1) Development on private lands requiring permits from Federal
agencies, such as 404 permits from the U.S. Army Corps of Engineers or
permits from other Federal agencies such as Housing and Urban
Development;
(2) Activities of the U.S. Fish and Wildlife Service on its Refuge
lands;
(3) Watershed management activities sponsored by the Natural
Resources Conservation Service;
(4) Activities of the Federal Aviation Authority on their lands or
lands under their jurisdiction;
(5) The release or authorization of release of biological control
agents by the U.S. Department of Agriculture;
(6) Regulation of activities affecting point source pollution
discharges into waters of the United States by the Environmental
Protection Agency under section 402 of the Clean Water Act; and
(7) Construction of communication sites licensed by the Federal
Communications Commission, and authorization of Federal grants or
loans.
Where federally listed wildlife species occur on private lands
proposed for development and a habitat conservation plan (HCP) is
submitted by an applicant to secure a permit to take according to
section 10(a)(1)(B) of the Act, our issuance of such a permit would be
subject to the section 7 consultation process. In those situations
where Cirsium loncholepis may occur or its critical habitat is present
within the area covered by an HCP that covers a wildlife species, the
consultation process would include consideration of the potential
effects on all listed species, including plants, of granting the permit
authorizing take of threatened or endangered wildlife species addressed
by the HCP.
Section 4(b)(8) of the Act requires us to briefly describe and
evaluate 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 would
be those that alter the primary constituent elements to the extent that
the value of critical habitat for the conservation of Cirsium
loncholepis 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 Cirsium loncholepis include, but are not limited
to:
(1) Activities that alter habitat hydrological regimes in ways that
would appreciably alter or reduce the quality or quantity of surface
and subsurface water needed to maintain the coastal dune swale, seep,
marsh, and riparian habitat within the range of Cirsium loncholepis.
Such activities adverse to C. loncholepis could include, but are not
limited to, water drawdown or water diversions that lower the water
table, agricultural activities that would affect the quality of water
through contamination, off-highway vehicle activity that alters
vegetation cover and topography, road building and maintenance or
modification that alters runoff patterns, oilfield development, oil
contamination remediation activities, construction of pipelines and
utility corridors, golf course and residential development and certain
recreational activities; and
(2) Activities that destroy the attendant native vegetation and
make Cirsium loncholepis habitats more susceptible to invasion by non-
native plant species including, but not limited to activities such as
livestock grazing, grading, construction and maintenance of pipeline
and utility corridors, off-road vehicle traffic, and other recreational
activities.
Several other wildlife species that are listed under the Act occur
in the same general areas as Cirsium loncholepis. Western snowy plovers
(Charadrius alexandrinus nivosus), tidewater gobies (Eucyclogobius
newberryi), California least terns (Sterna antillarum browni),
California red-legged frogs (Rana aurora draytonii), marsh sandwort
(Arenaria paludicola), Gambel's watercress (Rorippa gambelii), and
Nipomo lupine (Lupinus nipomensis) occur within the coastal portions of
the Pismo-Orcutt unit designated as critical habitat for C.
loncholepis; in addition, critical habitat for Western snowy plover
overlaps with that designated for C. loncholepis.

[[Page 12563]]

California tiger salamanders (Ambystoma californiense) (Santa Barbara
DPS) occur on the more inland portion of the Pismo-Orcutt unit in the
vicinity of Orcutt, as well as in the vicinity of the Ca[ntilde]ada de
las Flores unit.
If you have questions regarding whether specific activities will
likely constitute adverse modification of critical habitat, contact the
Field Supervisor, Ventura 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, Portland Regional Office, 911 NE 11th
Avenue, Portland, OR 97232-4181 (503/231-6131, Fax 503/231-6243).

Relationship to Habitat Conservation Plans

Currently, no Habitat Conservation Plans include Cirsium
loncholepis as a covered 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 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 concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on May 7, 2002 (67 FR 30641). We
accepted comments on the draft analysis until June 6, 2002.
Our proposed critical habitat rule included three species, Cirsium
loncholepis, Eriodictyon capitatum, and Deinandra increscens ssp.
villosa. Therefore, our economic analysis evaluated the potential
future effects associated with the listing of all three of those
species as endangered under the Act, as well as any potential effect of
the critical habitat designation above and beyond those regulatory and
economic impacts associated with listing. In addition, we analyzed
costs incurred through consultations and modifications of activities on
lands under the Federal jurisdiction of Vandenberg Air Force Base
(VAFB), and the following discussion of potential economic effects and
the values presented below assumes the inclusion of these lands in the
critical habitat designation. However, through section 4(b)(2), in our
final critical habitat rule, we excluded lands owned by VAFB from the
areas designated as critical habitat for Eriodictyon capitatum, and
Deinandra increscens ssp. villosa. In that rule, we determined that the
benefits of excluding lands owned by VAFB outweighed the benefits of
inclusion, which finding resulted in the entire removal of three units
and modification of two units (67 FR 67968). Therefore, because our
economic analysis was based on an analysis of effects from listing and
designating critical habitat for three species, not just C.
loncholepis, and included impacts of areas that were subsequently
excluded from the final critical habitat rules, the values presented
below and in the economic analysis are likely overestimates of the
potential economic effects resulting from this critical habitat rule
for C. loncholepis.
The categories of potential costs considered in the analysis
included the costs associated with: (1) Conducting section 7
consultations due to the listing or the critical habitat, including
reinitiated consultations and technical assistance; (2) modifications
to projects, activities, or land uses resulting from the section 7
consultations; and (3) potential offsetting beneficial costs connected
to critical habitat including educational benefits.
Our economic analysis recognizes that there may be costs from
delays associated with reinitiating completed consultations after the
critical habitat designation is made final. There may also be economic
effects due to the reaction of the real estate market to critical
habitat designation, as real estate values may be lowered due to a
perceived increase in the regulatory burden.
Based on our analysis, we concluded that the designation of
critical habitat would not result in a significant economic impact, and
estimated the potential economic effects over a 10-year period would
range from $3.1 to $3.65 million for all three species. The total
estimated costs associated with Cirsium loncholepis alone over a 10-
year period is estimated to range between $641,000 and $802,300, or
$64,100 and $80,200 annually. The total consultation costs for C.
loncholepis attributable exclusively to the critical habitat provision
of section 7 may range from $17,200 to $43,600 over 10 years. These
costs are small when considered in the context of the economic activity
of the region. Given the total value of $1.09 billion in income (over
10 years) from farming, agricultural services, construction, and oil
and gas extraction activities in Santa Barbara County alone, the
annualized total cost of section 7 implementation represents about 0.07
percent of the total value of affected economic activities, as
estimated in the economic analysis. Although we do not find the
economic costs to be significant, they were considered in balancing the
benefits of including and excluding areas from critical habitat.
We did not receive any comments on the draft economic analysis of
the proposed designation. Following the close of the comment period,
the economic analysis was finalized. We made no revisions or additions
to the draft economic analysis.
A copy of the final economic analysis and a description of the
exclusion process with supporting documents are included in our
administrative record and may be obtained by contacting our Ventura
Fish and Wildlife Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, the Office of Management
and Budget (OMB) has determined that this critical habitat designation
is not a significant regulatory action. This rule will not have an
annual economic effect of $100 million or more or adversely affect any
economic sector, productivity, competition, jobs, the environment, or
other units of government. This designation will not create
inconsistencies with other agencies' actions or otherwise interfere
with an action taken or planned by another agency. It will not
materially affect entitlements, grants, user fees, loan programs, or
the rights and obligations of their recipients. Finally, this
designation will not raise novel legal or policy issues. Accordingly,
OMB has not formally reviewed this final critical habitat designation.

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

Under the Regulatory Flexibility Act (RFA) (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
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government

[[Page 12564]]

jurisdictions). However, no regulatory flexibility analysis is required
if the head of an agency certifies the rule will not have a significant
economic impact on a substantial number of small entities. The SBREFA
amended the RFA to require Federal agencies to provide a certification
statement. In this rule, we are certifying that the critical habitat
designation for Cirsium loncholepis will not have a significant effect
on a substantial number of small entities. The following discussion
explains the factual basis for this certification.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect Cirsium loncholepis. Federal agencies also must consult with us
if their activities may affect critical habitat. Designation of
critical habitat, therefore, could result in an additional economic
impact on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities. Since C. loncholepis was
listed in March 2000, there have only been two formal consultations
involving the species. Both consultations were conducted with the Army
Corps of Engineers on restoration activities being undertaken by one
entity, Unocal, to clean up and restore beach habitat contaminated by
oil production activities. In these consultations, restoration of C.
loncholepis habitat was proposed as part of the project because Unocal
was under court order to remediate contamination by the Environmental
Protection Agency. Since there have been only two consultations and
both involved the same agency and entity, the requirement to reinitiate
consultations for ongoing projects will not affect a substantial number
of small entities.
Our economic analysis found that private development, oil and gas
production (oil and gas decommissioning in the Cirsium loncholepis
units), and agriculture (particularly, vineyard conversion) are the
primary activities anticipated to take place within the area designated
as critical habitat for Cirsium loncholepis, Eriodictyon capitatum, and
Deinandra increscens ssp. villosa. There are approximately 114
development and real estate, 73 oil and gas, and 93 agriculture small
companies within the area designated as critical habitat for the three
species. Because this final rule does not include the critical habitat
designation for the Eriodictyon capitatum and Deinandra increscens ssp.
villosa and also differs from the proposed rule upon which the economic
analysis was based through the exclusion of proposed units for those
species located on Vandenberg Air Force Base, the impacts of this rule
on small businesses and total economic costs are likely to be lower
than were reflected in the economic analysis. To be conservative (i.e.,
more likely to overstate impacts than understate them), we assumed in
our economic analysis that a unique business entity would undertake
each of the projected consultations in a given year. Therefore, the
number of businesses affected annually is equal to the total annual
number of consultations (both formal and informal).
Based on the economic analysis which looked at the critical habitat
for three species, we estimated that in each year there could be
between one and two consultations for private development projects.
Assuming each consultation involves a different business, approximately
less than 1 percent of the total number of small private development
companies could be affected annually by the designation of critical
habitat for these three species.
Similarly again in analyzing critical habitat for the three
species, we estimated that in each year there could be approximately
three consultations for oil and gas production activities. Assuming
each consultation involves a different business, approximately 3 to 4
percent of the total number of small gas and oil companies could be
affected annually by the designation of critical habitat for these
three species.
We also estimated that in each year there could be approximately
less than one consultation for agriculture (vineyard) activities.
Assuming each consultation involves a different business, approximately
less than 1 percent of the total number of small agriculture companies
could be affected annually by the designation of critical habitat for
Cirsium loncholepis. Therefore, the economic analysis concluded that
the designation of critical habitat for C. loncholepis will not result
in a significant economic impact on a substantial number of small
entities. This conclusion is supported by the low number of
consultations on C. loncholepis that have occurred since it was listed.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for the approximately
four small businesses, on average, that may be required to consult with
us each year regarding their project's impact on Cirsium loncholepis
and its habitat. First, if we conclude, in a biological opinion, that a
proposed action is likely to jeopardize the continued existence of a
species or destroy or adversely modify its critical habitat, we can
offer ``reasonable and prudent alternatives.'' Reasonable and prudent
alternatives are

[[Page 12565]]

alternative actions that can be implemented in a manner consistent with
the scope of the Federal agency's legal authority and jurisdiction,
that are economically and technologically feasible, and that would
avoid jeopardizing the continued existence of listed species or
adversely modifying critical habitat. A Federal agency and an applicant
may elect to implement a reasonable and prudent alternative associated
with a biological opinion that has found jeopardy or adverse
modification of critical habitat. An agency or applicant could
alternatively choose to seek an exemption from the requirements of the
Act or proceed without implementing the reasonable and prudent
alternative. However, unless an exemption were obtained, the Federal
agency or applicant would be at risk of violating section 7(a)(2) of
the Act if it chose to proceed without implementing the reasonable and
prudent alternatives. Second, pursuant to section 7(b)(4), if we find
that a proposed action adversely affects the species but is not likely
to jeopardize the continued existence of a listed animal or plant
species or adversely modify its critical habitat, we may identify
reasonable and prudent measures designed to minimize the amount or
extent of take and require the Federal agency or applicant to implement
such measures through non-discretionary terms and conditions. We may
also identify discretionary conservation recommendations designed to
minimize or avoid the adverse effects of a proposed action on listed
species or critical habitat, help implement recovery plans, or to
develop information that could contribute to the recovery of the
species.
Based on our experience with consultations pursuant to section 7 of
the Act for all listed species, virtually all projects--including those
that, in their initial proposed form, would result in jeopardy or
adverse modification determinations in section 7 consultations--can be
implemented successfully with, at most, the adoption of reasonable and
prudent alternatives. These measures, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. As we have a very limited
consultation history for Cirsium loncholepis with no consultations that
resulted in a jeopardy determination and so no identified reasonable
and prudent alternatives, we can only describe the general kinds of
actions that may be identified in future reasonable and prudent
alternatives. These are based on our understanding of the needs of the
species and the threats it faces, as described in the final listing
rule and this critical habitat designation.
It is likely that a developer or other project proponent could
modify a project or take measures to protect Cirsium loncholepis. Based
on the types of modifications and measures that have been implemented
in the past for plant species, a project proponent may take such steps
as installing fencing or re-aligning the project to avoid sensitive
areas. It should be noted that a developer likely would already be
required to undertake such measures due to regulations in the
California Environmental Quality Act. These measures are not likely to
result in a significant economic impact to project proponents.
In summary, we have considered whether this rule would result in a
significant economic effect on a substantial number of small entities.
We have determined, for the above reasons, that it will not affect a
substantial number of small entities. Furthermore, we believe that the
potential compliance costs for the number of small entities that may be
affected by this rule will not be significant. Therefore, we are
certifying that the designation of critical habitat for Cirsium
loncholepis will not have a significant economic impact on a
substantial number of small entities. A regulatory flexibility analysis
is not required.

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

Under the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 801 et seq.), this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an effect on the
economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis for a
discussion of the effects of this determination.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. City and
county governments would only be affected by this designation if their
actions were being funded, permitted, or carried out by a federal
agency. In that circumstance, the federal agency would need to assure
the action it was funding, permitting, or carrying out would not
adversely modify critical habitat. For all actions without federal
involvement, this designation would not have any affect on such
actions.
(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.

Executive Order 13211

On May 18, 2001, the President issued an Executive Order 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 rule is not
expected to significantly affect energy supplies, distribution, or use.
In our economic analysis, we did not identify energy production or
distribution as being affected by this designation, and we received no
comments indicating that the proposed designation could significantly
affect energy supplies, distribution, or use. Oil and gas facilities in
the designated units of this final rule are decommissioned or in the
process of decommissioning. Therefore, this action is not a significant
energy action and no Statement of Energy Effects is required.

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 Cirsium loncholepis in a takings
implication assessment. The takings implications assessment concludes
that this final rule does not pose significant takings implications.

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. As discussed above, the designation of critical habitat in
areas currently occupied by Cirsium loncholepis would have little
incremental impact on State and local governments and their activities.
The designations may have some benefit to these governments in that the
areas

[[Page 12566]]

essential to the conservation of these species are more clearly
defined, and the primary constituent elements of the habitat necessary
to the survival of the species are 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
consultation 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 meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have designated critical
habitat in accordance with the provisions of the Endangered Species
Act, as amended. 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 Cirsium
loncholepis.

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

This rule does not contain any information collection requirements
for which OMB approval under the Paperwork Reduction Act is required.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a 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 determination 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. The designated critical
habitat for Cirsium loncholepis does not contain any Tribal lands or
lands that we have identified as impacting Tribal trust resources.

References Cited

A complete list of all references cited herein, as well as others,
is available upon request from the Ventura Fish and Wildlife Office
(see ADDRESSES section).

Author

The authors of this final rule are Diane Gunderson, Mary Root, and
Connie Rutherford, Ventura 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.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of

the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. In Sec. 17.12(h) revise the entry for Cirsium loncholepis under
``FLOWERING PLANTS'' to read as follows:

Sec. 17.12 Endangered and threatened plants.

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
---------------------------------------------------- Historic range Family Status When listed Critical habitat Special
Scientific name Common name rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Cirsium loncholepis............ La Graciosa U.S.A. (CA)...... Asteraceae- E 691 17.96(a).......... NA
thistle. sunflower.

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

0
3. In Sec. 17.96, amend paragraph (a) by adding an entry for Cirsium
loncholepis under Family Asteraceae to read as follows:

Sec. 17.96 Critical habitat--plants.

(a) * * *
Family--Asteraceae: Cirsium loncholepis (La Graciosa thistle)
(1) Critical habitat units are depicted for San Luis Obispo and
Santa Barbara Counties, California, on the maps below.
(2) The primary constituent elements of critical habitat for
Cirsium loncholepis are those habitat components that provide:
(i) Moist sandy soils associated with dune swales, margins of dune
lakes and marshes, seeps, intermittent streams, and river margins from
the Guadalupe Dune complex along the coast and inland to Ca[ntilde]ada
de las Flores;
(ii) Plant communities that support associated wetland species,
including: Juncus spp. (rush), Scirpus spp. (tule), and Salix spp.
(willow); and
(iii) Hydrologic processes, particularly the maintenance of a
stable groundwater table supporting the soil moisture regime that
appears to be favored by Cirsium loncholepis.
(3) Critical habitat does not include existing features and
structures, such as buildings, hard-packed roads (e.g., asphalt,
pavement), aqueducts, railroads, airport runways and buildings, other
paved areas, lawns, and other urban landscaped areas not containing all
of the primary constituent elements.
(4) Critical Habitat Map Units. Data layers defining map units were
mapped using Universal Transverse Mercator (UTM) coordinates.
(5) Cirsium loncholepis. Pismo-Orcutt Unit; San Luis Obispo and
Santa Barbara Counties, California.
(i) From USGS 1:24,000 scale quadrangle maps Pismo Beach and
Oceano. Land bounded by the following

[[Page 12567]]

UTM 10 NAD 1927 coordinates (E, N): 715600, 3889000; 716100, 3889000;
716100, 3888800; 716200, 3888500; 716600, 3887600; 716500, 3887600;
716600, 3887300; 716400, 3887300; 716400, 3887400; 716300, 3887400;
716300, 3887300; thence southwest to Oceano Dunes State Vehicular
Recreation Area ``Street Legal'' riding area boundary at y-coordinate
3887230; thence north along the ``Street Legal'' riding area boundary
to y-coordinate 3888735; thence northwest, returning to 715600,
3889000.
(ii) From USGS 1:24,000 scale quadrangle maps Pismo Beach, Oceano,
Point Sal, Guadalupe, Santa Maria, and Orcutt. Lands bounded by
following UTM Zone 10, NAD 1927 coordinates (E, N): 716700, 3886500;
717100, 3886400; 717300, 3886300; 717600, 3886100; 718100, 3886000;
719100, 3885200; 719400, 3884900; 719600, 3884600; 719600, 3884000;
719300, 3883700; 719200, 3883200; 719100, 3883000; 719200, 3882300;
719400, 3881300; 719700, 3880800; 719800, 3880700; 720300, 3880700;
720300, 3880200; 719600, 3880400; 719500, 3880300; 719600, 3879500;
719700, 3879100; 720300, 3878900; 720400, 3879000; 720400, 3879300;
720000, 3879500; 720400, 3879700; 720600, 3880000; 720700, 3880000;
721300, 3879500; 721500, 3880000; 721900, 3880000; 722500, 3879400;
722500, 3878300; 722300, 3877600; 722000, 3876600; 721800, 3876000;
721800, 3875700; 721500, 3875800; 721600, 3875500; 721800, 3875100;
721800, 3873200; 722200, 3873300; 722300, 3873300; 722900, 3873100;
723200, 3873300; 724100, 3873500; 725800, 3873900; 727000, 3874200;
727600, 3870900; 731700, 3870600; 731700, 3869000; 731400, 3869000;
731400, 3868000; 731600, 3868000; 731700, 3867400; 731200, 3867300;
730500, 3867000; 730000, 3867000; 729900, 3866700; 730600, 3866700;
731200, 3867000; 731600, 3867000; 731700, 3864600; 731200, 3863900;
731400, 3863500; 731800, 3863500; 731800, 3861500; 732300, 3861100;
732500, 3861000; 732800, 3861000; 733000, 3860800; 733200, 3860800;
733200, 3860600; 733500, 3860400; 733600, 3860300; 734100, 3860300;
734200, 3860200; 733900, 3860100; 733600, 3860100; 733600, 3859900;
733400, 3859800; 733300, 3859700; 733200, 3859500; 733200, 3859200;
733000, 3859200; 733000, 3859600; 732800, 3860400; 732600, 3860700;
731500, 3861500; 730700, 3861800; 729800, 3862100; 728800, 3862500;
728300, 3862900; 726900, 3864000; 726400, 3864300; 726100, 3864600;
725100, 3865000; 723900, 3866000; 722700, 3867000; 722800, 3867300;
722700, 3867600; 722600, 3867800; 722400, 3867900; 722300, 3868300;
722100, 3868300; 722000, 3868200; 721400, 3868400; 721000, 3868400;
720300, 3868700; 719700, 3868800; 719500, 3868900; 719400, 3869100;
719200, 3869300; 718600, 3869600; 717900, 3869700; 717700, 3869800;
717500, 3869800; 717100, 3869700; 716600, 3869600; 716600, 3870000;
716500, 3870300; 716400, 3870500; 716200, 3870700; 715900, 3870800;
715400, 3870900; 715100, 3870900; 715000, 3871100; 715200, 3872300;
715000, 3872600; 715500, 3875200; 716000, 3878600; thence north to the
boundary ``Open Riding Area'' in Oceano Dunes State Vehicular
Recreation Area at y-coordinate 3878700; thence north along the ``Open
Riding Area'' boundary to y-coordinate 3886500; thence east, returning
to 716700, 3886500.
(iii) Excluding land bounded by: 727800, 3868100; 727600, 3868100;
727300, 3868000; 727300, 3867800; 727500, 3867600; 727700, 3867600;
727700, 3867800; 727800, 3867800; 727800, 3868100.
(iv) Excluding land bounded by: 729800, 3864700; 729400, 3864700;
729400, 3864000; 730200, 3864000; 730400, 3864100; 730400, 3864500;
729800, 3864700.
(v) Excluding land bounded by: 726400, 3867300; 726200, 3867000;
726200, 3866900; 726900, 3866400; 727300, 3866100; 727600, 3866300;
727600, 3866500; 727200, 3866600; 727300, 3867100; 727100, 3867200;
727000, 3866900; 726400, 3867300.
(vi) Excluding land bounded by: 728400, 3870600; 728400, 3870200;
727700, 3870200; 727500, 3869700; 729200, 3869700; 729200, 3869500;
729400, 3869500; 729400, 3870300; 728900, 3870300; 728500, 3870600;
728400, 3870600.
(vii) Excluding land bounded by: 722100, 3872900; 721800, 3872900;
721600, 3872700; 721400, 3872200; 721300, 3871700; 721100, 3871600;
721000, 3871400; 720800, 3871300; 720600, 3871400; 720200, 3871400;
720000, 3871300; 720000, 3870800; 721100, 3870800; 721100, 3870700;
721400, 3870700; 721400, 3870800; 722200, 3870800; 722200, 3871900;
723000, 3871900; 723000, 3872000; 722300, 3872300; 722300, 3872600;
722100, 3872900.
(6) Cirsium loncholepis. Ca[ntilde]ada de Las Flores Unit; San Luis
Obispo and Santa Barbara Counties, California.
(i) From USGS 1:24,000 scale quadrangle map Sisquoc. Lands bounded
by UTM Zone 10, NAD 1927 coordinates (E, N): 741100, 3853100; 741300,
3853400; 741300, 3853500; 741100, 3853700; 741200, 3854000; 741300,
3854500; 741300, 3854700; 741200, 3854900; 741300, 3855100; 741300,
3855600; 741400, 3855900; 741600, 3856200; 741800, 3856300; 741900,
3856300; 742700, 3855500; 743200, 3854000; 743300, 3853800; 743600,
3853400; 743700, 3853300; 744000, 3853000; 744200, 3852900; 745000,
3852400; 745200, 3852300; 745600, 3851900; 745200, 3851400; 744600,
3851700; 744500, 3851700; 744200, 3851400; 743700, 3851400; 743400,
3851200; 743300, 3851000; 743200, 3851000; 743200, 3850800; 742500,
3850800; 742100, 3850900; 742300, 3851800; 742400, 3852000; 742200,
3852100; 741600, 3852300; 741200, 3852400; 741100, 3852500; 741100,
3852700; 741000, 3852800; 741000, 3853000; 741100, 3853100.
(ii) Note: Map follows:
BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TR17MR04.000

[[Page 12569]]

Dated: March 10, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-5925 Filed 3-16-04; 8:45 am]

BILLING CODE 4310-55-C