[Federal Register Volume 59, Number 22 (Wednesday, February 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2304]


[[Page Unknown]]

[Federal Register: February 2, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AA95

 

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Least Bell's Vireo

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) designates critical 
habitat for the least Bell's vireo (Vireo bellii pusillus), an 
endangered species, pursuant to the Endangered Species Act of 1973, as 
amended (Act). This designation encompasses a total of about 38,000 
acres at 10 localities in portions of 6 counties in southern 
California. This designation results in additional protection 
requirements under section 7 of the Act for activities that are funded, 
authorized, or carried out by a Federal agency. The Service has 
considered economic and other relevant impacts in making a final 
decision on the size and scope of critical habitat.

EFFECTIVE DATE: March 4, 1994.

.ADDRESSES: The complete file for this rule is available for 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue 
West, Carlsbad, California 92008.

FOR FURTHER INFORMATION CONTACT: Larry Salata or Loren Hays, Fish and 
Wildlife Biologists, (see ADDRESSES section) at 619/431-9440.

SUPPLEMENTARY INFORMATION:

Background

Introduction

    The Act requires the Service to designate critical habitat to the 
maximum extent prudent and determinable concurrently with listing a 
species as endangered or threatened. On November 8, 1979, the Service 
received a petition from James M. Greaves to list the Arizona (V. b. 
arizonae) and least Bell's vireos as endangered. A notice of acceptance 
of the petition and status review was published on February 6, 1980 (45 
FR 8030). Based on the best scientific and commercial data available 
and comments submitted during the status review, the Service found that 
the petitioned action was warranted for the least Bell's vireo on 
October 13, 1983 (49 FR 2485, January 20, 1984); however, a listing 
action was precluded by other pending listing actions of higher 
priority, in accordance with section 4(b)(3)(C)(i) of the Endangered 
Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq.). Section 
4(b)(3)(C)(i) recycles such petitions, resulting in a new finding 
deadline of October 13, 1984. A finding was made on October 12, 1984, 
that this action was still warranted but precluded. The Service 
published a proposed rule to determine the least Bell's vireo to be an 
endangered species, and to designate critical habitat for the species 
on May 3, 1985 (50 FR 18968). This proposed rule constituted the next 
finding required under section 4(b)(3)(B)(ii) of the Act. A correction 
to some of the legal descriptions of the proposed critical habitat was 
published in the June 4, 1985, Federal Register (50 FR 23458). Rather 
than delay protected status for the vireo while the economic analysis 
that must accompany the final rule designating critical habitat was 
being prepared, the Service decided to make final only the listing 
portion of the rule to provide the Act's protection to the least Bell's 
vireo. Section 4(b)(6)(c)(ii) of the Act allows the Service to postpone 
designation of critical habitat for up to 12 months. On May 2, 1986, 
the vireo was listed as endangered and the comment period on proposed 
designation of critical habitat was reopened for an additional 90 days 
(51 FR 16483). A further extension of the comment period to January 1, 
1987, was published on July 31, 1986 (51 FR 27429). A revised proposed 
rule was published on August 7, 1992 (57 FR 34892) at which time the 
public comment period was reopened for 90 days.

Definition of Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as: (i) 
The specific areas within the geographical area occupied by a species 
on which are found those physical or biological features (I) essential 
to the conservation of the species and (II) that may require special 
management considerations or protection, and (ii) specific areas 
outside the geographical area occupied by a species at the time it is 
listed, upon determination that such areas are essential for the 
conservation of the species. Section 3(5)(C) further indicates that in 
most cases, critical habitat should not encompass the entire 
geographical area that can be occupied by the species.

Role in Species Conservation

    The term ``conservation,'' as defined in section 3 of the Act, 
means to use and the use of all methods and procedures which are 
necessary to bring an endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary (i.e., the species has recovered).
    The definition of critical habitat, while explicitly mentioning the 
features essential to conservation of a species, implicitly requires 
that the areas themselves be essential to the species' survival and 
recovery. Not all areas containing those features of a listed species' 
habitat are necessarily essential to its conservation. Conversely, 
areas not currently containing all of the essential features, but with 
the capability to do so in the future, may be designated as critical 
habitat. However, areas not included in critical habitat that contain 
one or more of the essential features are also important to the 
species' conservation and would be addressed under other facets of the 
Act and other conservation laws and regulations.

Relationship to Recovery

    Section 2(c)(1) of the Act declares that all Federal departments 
and agencies shall seek to conserve endangered and threatened species 
and shall utilize their authorities in furtherance of the purposes of 
the Act. Section 3(3) of the Act defines conservation to include all 
measures needed to recover the species and justify its removal from the 
list of endangered and threatened wildlife and plants. The Act mandates 
the conservation of listed species through different mechanisms, such 
as: Section 7 (requiring Federal agencies to further the purposes of 
the Act by carrying out conservation programs and insuring that Federal 
actions will not likely jeopardize the continued existence of the 
listed species or result in the destruction or adverse modification of 
designated critical habitat); section 9 (prohibition of taking of 
listed animal species); section 10 (wildlife research permits and 
conservation planning on State and private lands); section 6 
(cooperative State and Federal grants); land acquisition; and research.
    Recovery planning under section 4(f) of the Act is the ``umbrella'' 
that eventually guides all of these activities and promotes a species' 
conservation and eventual delisting. Recovery plans provide guidance, 
which may include population goals and identification of areas in need 
of protection or special management, so that a species can be removed 
from the list of endangered and threatened wildlife and plants. 
Recovery plans usually include management recommendations for areas 
proposed or designated as critical habitat.
    The Service considers the conservation of a species in its 
designation of critical habitat. The designation of critical habitat 
will not, in itself, lead to the recovery of the species, but is one of 
several measures available to contribute to the conservation of a 
species. Critical habitat helps focus conservation activities by 
identifying areas that contain essential habitat features (primary 
constituent elements) that may require special management. The 
protection given critical habitat under section 7 also immediately 
increases the protection given to these primary constituent elements 
and essential areas and preserves options for the long-term 
conservation of the species. The protection of these areas may also 
shorten the time needed to achieve recovery.
    Designating critical habitat does not create a management plan; it 
does not establish numerical population goals; it does not prescribe 
specific management actions (inside or outside of critical habitat); 
and it has no direct effect on areas not designated. Specific 
management recommendations for critical habitat are more appropriately 
addressed in recovery plans and in section 7 consultation. Areas 
outside of critical habitat also have an important role in the 
conservation of a listed species that is not addressed through 
designation of critical habitat.
    The designation of critical habitat may be reevaluated and revised 
at any time that new information indicates that changes are warranted. 
The Service will reassess proposals for designation of critical habitat 
if land management plans, recovery plans, or other conservation 
strategies are developed and fully implemented that may reduce the need 
for the additional protection provided by any critical habitat 
designation.

Primary Constituent Elements

    The Service is required to base critical habitat designations on 
the best scientific data available (50 CFR 424.12). In determining what 
areas are to be designated as critical habitat, the Service considers 
those physical and biological attributes that are essential to the 
conservation of the species and that may require special management 
considerations or protection. Such requirements, as stated in 50 CFR 
424.12, include, but are not limited to, the following:

     Space for individual and population growth, and for 
normal behavior;
     Food, water, or other nutritional or physiological 
requirements;
     Cover or shelter;
     Sites for breeding, reproduction, rearing of offspring; 
and generally; and
     Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distribution of a species.

    The Service has determined that the physical and biological 
habitat features (referred to as the primary constituent elements) 
that support feeding, nesting, roosting and sheltering are essential 
to the conservation of the least Bell's vireo. These habitat 
features can be described as riparian woodland vegetation that 
generally contains both canopy and shrub layers, and includes some 
associated upland habitats. Vireos meet their survival and 
reproductive needs (food, cover, nest sites, nestling and fledgling 
protection) within the riparian zone in most areas. In some areas 
they also forage in adjacent upland habitats.

Ecological Considerations

    The least Bell's vireo is a small gray migratory songbird that has 
declined dramatically in both numbers and distribution. This subspecies 
was once widespread and abundant throughout the Central Valley and 
other low elevation riverine areas of California. Least Bell's vireos 
historically bred in riparian woodlands from the interior of northern 
California (near Red Bluff, Tehama County) to northwestern Baja 
California, Mexico. Its current breeding distribution is restricted to 
a few localities in southern California and northwestern Baja 
California, Mexico (Franzreb 1989).
    Least Bell's vireos nest primarily in willows (Salix spp.) but also 
use a variety of other shrub and tree species for nest placement (Gray 
and Greaves 1984, Salata 1987). Least Bell's vireos forage in riparian 
and adjoining upland habitats (Salata 1983, Kus and Miner 1987). 
Preliminary studies of vireo foraging behavior along the Santa Ynez 
River and within the Mono Creek Basin (Santa Barbara County) indicated 
that a large percentage of their foraging may occur in the adjacent 
chaparral community up to 300 or more yards from the nest (Tom Keeney, 
biologist, U.S. Army Corps of Engineers, July 31, 1985).
    The reduction of least Bell's vireo numbers and distribution is 
associated with widespread loss of riparian habitats and brood 
parasitism by the brown-headed cowbird (Molothrus ater). Destruction or 
significant alteration of riparian woodlands may have rendered the 
least Bell's vireo population incapable of withstanding the increase in 
brown-headed cowbird numbers that began in the 1920's (Grinnell and 
Miller 1944, Gaines 1974).
    The population decline of the vireo has been well documented. In 
1973, no least Bell's vireos were found during an intensive search in 
nearly all remaining riparian habitat between Red Bluff, Tehama County, 
and Stockton, San Joaquin County (Gaines 1974). In 1977, the Service 
reviewed the literature, examined museum material, and contacted 
numerous National Audubon Society chapters and knowledgeable field 
observers for information on the status of the least Bell's vireo 
(Wilbur 1980). Since then, several intensive surveys of virtually all 
potential breeding habitat in California have been conducted (Gaines 
1977, Goldwasser 1978, Goldwasser et al. 1980, RECON 1989, unpublished 
data on file with the Fish and Wildlife Service). Least Bell's vireos 
remain at only about 40 of over 150 historically occupied sites (some 
localities cover many miles of a water course) surveyed in the United 
States from 1977 through 1991. Most of these locations contain fewer 
than five pairs of vireos. About 76 percent of the U.S. population is 
found at just five localities. The current breeding population of the 
least Bell's vireo in California consists of approximately 500 pairs. 
Fewer than several hundred pairs are estimated to occur in Mexico.

Consideration of New Information

    The final rule is based on new biological and economic data, and 
material received during the comment period for the proposed rule and 
revised proposed rule.

Total Acres Included in Critical Habitat

    The Service is designating critical habitat for the least Bell's 
vireo at 10 areas encompassing approximately 38,000 acres (15,200 ha) 
in Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, and 
San Diego Counties, California. About 49 percent of the vireo 
population in the United States occurs within these 10 areas. Critical 
habitat for the vireo occurs on the Santa Ynez River (Santa Barbara 
County), Santa Clara River (Ventura and Los Angeles Counties), Santa 
Ana River (Riverside and San Bernardino Counties), and Santa Margarita 
River, San Luis Rey River, Sweetwater River, San Diego River, Tijuana 
River, Coyote Creek, and Jamul-Dulzura Creeks (San Diego County).
    Federal land within the critical habitat consists of approximately 
10,979 acres (4,392 ha) including approximately 7,600 acres (3,040 ha) 
in Santa Barbara County under the jurisdiction of the Forest Service, 
3,338 acres (1,335 ha) in Riverside and San Bernardino Counties under 
the jurisdiction of the Corps of Engineers, and 53 acres (21 ha) in San 
Diego County under the jurisdiction of the International Boundary and 
Water Commission. The remainder of the critical habitat is in State, 
county, city, Indian Tribe, or private ownership.

Differences From Proposed Rule and Revised Proposed Rule and Final Rule

    The May 3, 1985, proposed rule identified approximately 43,000 
acres for designation as critical habitat. In preparing the revised 
proposed rule, it was discovered that the 43,000-acre critical habitat 
figure was in error and should have been reported as approximately 
45,805 acres. Therefore, this final rule and associated documents refer 
to the 45,805-acre figure as the correct acreage figure from the May 3, 
1985, proposed designation.
    The area encompassed by the 10 critical habitat areas has been 
adjusted from approximately 45,805 acres (18,322 ha) in the original 
proposed rule to 48,025 acres (19,210 ha) in the revised proposed rule 
to about 38,000 acres (15,200 ha) in the final rule. In adjusting the 
boundaries, 1,400 acres (560 ha) were deleted from critical habitat on 
the Santa Ynez River and 3,620 acres (1,448 ha) were added, resulting 
in a net increase of 2,220 acres (888 ha). This adjustment was 
recommended by the Forest Service and was based on the results of 
additional field research on the status, distribution, and behavior of 
the least Bell's vireo on the Santa Ynez River during the 1986 breeding 
season. An additional 120 acres (48 ha), adjacent to the northern 
border of Gibraltar Reservoir, were also recommended for deletion by 
the Forest Service but the Service does not believe that this change is 
warranted because this area contains potential nesting habitat. All the 
land suggested for either withdrawal or addition to the Santa Ynez 
River critical habitat is under the jurisdiction of the Forest Service. 
The additional 3,620 acres (1,448 ha) that were added are under Federal 
jurisdiction, withdrawn from mineral entry, and without any private or 
commercial interests.
    Two adjustments have been made in the Santa Margarita River 
critical habitat area. About 420 acres (168 ha) of upland private 
property were removed based on a refinement in the legal description. 
This adjustment did not exclude any vireo habitat. About 9,600 acres 
(3,840 ha) on Camp Pendleton Marine Corps Base were removed based on 
the finding that an existing Memorandum of Understanding (MOU) between 
the Service and the Marine Corps for vireo management is providing an 
adequate level of protection to the vireo and its habitat. Although 
this area is essential to the conservation of the species, the Service 
finds that a formal critical habitat designation is unnecessary because 
the MOU contains provisions for section 7 consultation for proposed 
actions that may destroy or adversely modify vireo habitat. The Service 
also finds that a level of protection equivalent to or greater than 
that provided by a critical habitat designation can be achieved for the 
vireo on this portion of the Santa Margarita River through cooperation 
with the Marine Corps under the MOU. The management actions implemented 
under this agreement have significantly benefitted the vireo population 
at this locality. It has increased from 98 territorial males in 1986 
when the MOU was established to 212 territorial males in 1991. However, 
the Service will reconsider its position to designate critical habitat 
on the Camp Pendleton reach of the Santa Margarita River if conditions 
warrant. The Service will use its authority under sections 7 and 9 of 
the Act to insure compliance with the prohibitions on unauthorized 
take.
    One adjustment has been made in the San Luis Rey River critical 
habitat area: About 80 acres (32 ha) of upland private property were 
removed based on a refinement in the legal description. This adjustment 
did not exclude any vireo habitat.

Available Conservation Measures

Section 7 Consultation

    Section 4(b)(8) of the Act requires, for any proposed or final 
regulation that designates critical habitat, a brief description and 
evaluation of those activities (public or private) that may adversely 
modify such habitat or may be affected by such designation. Regulations 
found at 50 CFR 402.02 define destruction or adverse modification of 
critical habitat 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.
    Once critical habitat is designated, section 7(a)(2) requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to destroy or adversely modify critical 
habitat. This Federal responsibility accompanies, and is in addition 
to, the requirement in section 7(a)(2) of the Act that Federal agencies 
insure that their actions are not likely to jeopardize the continued 
existence of any listed species. As required by 50 CFR 402.14, a 
Federal agency must consult with the Service if it determines an action 
may affect a listed species or its designated critical habitat. Thus, 
the requirement to consider adverse modification of critical habitat is 
an incremental section 7 consideration above and beyond section 7 
review to evaluate jeopardy and incidental take. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.

Basis for Analysis

    The evaluation of actions that may adversely modify least Bell's 
vireo critical habitat should consider a number of factors such as the 
present condition of the habitat, the number of current pairs, the 
reproductive success of breeding pairs, the expected time to regenerate 
sufficient habitat to support an effective population at a particular 
site, and local and regional problems. Although the Service considered 
the entire range of the least Bell's vireo in determining an approach 
to critical habitat designation, its section 7 analysis of actions that 
may adversely affect vireo critical habitat will consider the 
significance of impacts at individual critical habitat areas as well as 
the entire range. All proposed actions should be viewed as to their 
impacts on all four constituent elements relative to the potential for 
adverse modification on individual critical habitat areas.

Examples of Actions Affecting Critical Habitat

    Activities that disturb or remove the primary constituent elements 
within proposed critical habitat areas may constitute destruction or 
adverse modification of critical habitat. In the case of the vireo, 
these activities include: (1) Removal or destruction of riparian 
vegetation, (2) thinning of riparian growth, particularly near ground 
level, (3) removal or destruction of adjacent chaparral or other upland 
habitats used for foraging, and (4) increases in human-associated or 
human-induced disturbance. Specific actions that could adversely affect 
vireo critical habitat include stream channelization, water impoundment 
or extraction, water diversion, livestock grazing, intensive 
recreation, and conversion of presently existing riparian or adjacent 
upland areas to residential, agricultural, or commercial use. Complete 
or major destruction of riparian vegetation would result in the 
extirpation of the least Bell's vireo from the affected area, which 
could further endanger the species throughout the remainder of its 
range and preclude opportunities for recovery. Thinning or selectively 
removing components of riparian vegetation could cause vireos to 
abandon an area because suitable nesting and foraging sites are scarce 
or absent or could result in lowered reproductive success because of 
diminished habitat quality. Increases in recreation could cause actual 
destruction of nests or could disrupt nesting activities which in turn 
could cause nest abandonment, lowered hatching success, increased rates 
of cowbird parasitism and depredation events, and a decrease in the 
number of fledged young.

Other Conservation Measures: Non-Federal Lands

    Section 9 of the Act prohibits intentional and unintentional 
``take'' of listed species and applies to all landowners regardless of 
whether or not their lands are within critical habitat (see 16 U.S.C. 
1538(a)(1), 1532(1a) and 50 CFR 17.3). Section 10(a)(1)(B) authorizes 
the Service to issue permits for the taking of listed species 
incidental to otherwise lawful activities such as agriculture, sand and 
gravel mining, and urban development. Incidental take permits must be 
supported by a habitat conservation plan (HCP) that identifies 
conservation measures that the permittee agrees to implement to 
conserve the species, usually on the permittee's lands. A key element 
of the Service's review of an HCP is a determination of the plan's 
effect upon the long-term conservation of the species. The Service 
would approve an HCP, and issue a section 10(a)(1)(B) permit if the 
plan would minimize and mitigate the impacts of the taking and would 
not appreciably reduce the likelihood of the survival and recovery of 
that species in the wild.
    The San Diego Association of Governments (SANDAG) is coordinating 
the development of HCPs for the San Diego River and Sweetwater River 
critical habitat areas. This effort also included the development of 
draft plans for the Santa Ana River and San Luis Rey River critical 
habitat areas, but these plans are no longer under consideration. The 
intent of these plans is to address land use conflicts and to conserve 
the vireo and its habitat. The Service will issue section 10(a)(1)(B) 
permits, if the HCPs are acceptable. In November 1991, the Service 
received two permit applications and final draft HCPs from SANDAG for 
the incidental take of vireos on the San Diego and Sweetwater Rivers. 
SANDAG is currently finalizing the HCPs and a draft Environmental 
Assessment is under preparation. Based on the review of drafts of these 
plans, the Service anticipates that they will be compatible with the 
designation of critical habitat.

Summary of Economic Analysis

    Section 4(b)(2) of the Act requires the Service to designate 
critical habitat on the basis of the best scientific data available and 
to consider the economic impact and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary may 
exclude any area from critical habitat if he determines that the 
benefits of such exclusions outweigh the benefits of specifying such 
area as part of the critical habitat, unless it is determined, based on 
the best scientific and commercial data available, that the failure to 
designate such area as critical habitat would result in the extinction 
of the species concerned. The Act thus requires the Service to evaluate 
those economic and other effects likely to take place due to the 
designation of critical habitat, and to consider whether to exclude 
some critical habitat.
    The economic effects of designating critical habitat for the least 
Bell's vireo are the project-related costs of habitat mitigation within 
the 10 areas designated as critical habitat over and above those costs 
incurred as a result of listing the vireo as an endangered species in 
May 1986 and as a result of compliance with the Federal Clean Water Act 
for those activities involving the placement of fill into waters of the 
United States.

Affected Agencies

    The Service assumes in the economic analysis that the impacts to 
Federal agencies are related to activities that physically alter 
critical habitat. The Forest Service, Corps of Engineers (Corps), 
Federal Highway Administration, and International Boundary and Water 
Commission are the agencies most likely to be affected by the critical 
habitat designation.

Economic Effects

    Activities that may be affected include construction and 
maintenance of dams, water control and transport, fire suppression, 
recreation, oil and gas production and transport, sand-mining, 
residential and commercial development and related facilities, 
agriculture, and highway and bridge construction.
    Private lands within critical habitat (15,961 acres) are currently 
used primarily for agricultural purposes and are not expected to be 
economically affected. There are no known proposals with Federal 
involvement.
    Numerous Federal, State, and local agencies have jurisdiction over 
the affected activities. Several informed the Service that critical 
habitat designation is consistent or compatible with their management 
objectives. Although a number of agencies expressed concern that the 
designation of critical habitat would affect proposed or future 
projects and asked to have various project areas removed, the economic 
costs attributable to critical habitat for those projects are expected 
to be insignificant.
    Federal agencies expected to incur economic costs attributable to 
designation of critical habitat include the Forest Service, Corps of 
Engineers, and the International Boundary and Water Commission. The 
Forest Service anticipates an increased cost of $2,000 per year for 
additional fire suppression activities and $1,000 per year for 
additional ranger patrols to protect vireo habitat in the Santa Ynez 
River critical habitat area. It may become necessary for the Corps of 
Engineers to initiate patrols of its land in the Santa Ana River 
critical habitat area to control trespassing, at an anticipated cost of 
$20,000 a year. The Service believes that the International Boundary 
and Water Commission flood control activities in the Tijuana River area 
will incur no significant economic costs.
    Construction of the Hamner Avenue Bridge in the Santa Ana River 
area was completed in 1985. The project included a compensation package 
for adverse effects to wildlife and wetlands that cost a total of 
$462,000, of which $113,400 was for cowbird control and nest monitoring 
to compensate for impacts to vireo habitat. The annualized value of the 
critical habitat effect is $8,000 per year.
    A number of projects may incur economic costs because critical 
habitat designation is expected in some cases to require habitat 
mitigation or compensation that goes beyond current requirements. Under 
current procedures, whenever proposed projects affect wetlands, the 
proposing agency is required to replace habitat values either 
concurrently (up to 5 acres replaced for every 1 acre lost) or prior to 
their destruction (1 acre replaced for every 1 acre lost). In most 
cases, the agencies have chosen to replace the habitat values 
concurrently in order to avoid expensive project delays. With critical 
habitat designation, the Service expects in some cases to require 
replacement of habitat values prior to implementation of the action. 
The Service anticipates that the maximum additional cost would be 
$75,000 per acre for replacement of vireo habitat values prior to their 
destruction rather than concurrently. The incremental cost is due 
primarily to the need for additional landscaping and revegetation to 
create fully functional vireo habitat in a 2 to 3-year period. The cost 
of land acquired for mitigation purposes in such cases is attributable 
to the provisions of the Clean Water Act, or other laws and regulations 
protecting the environment. In some cases where land values are high, 
the total cost per acre of habitat destroyed may be less for prior 
replacement than for concurrent replacement.
    A proposed road crossing of the San Diego River associated with the 
Mission Trails Regional Park could adversely affect critical habitat. 
The project is still in the planning stage and the exact amount of 
habitat that would be affected is not known. The Service estimates that 
up to 5 acres of habitat may need to be replaced. At $75,000 per acre, 
an additional cost of $375,000 would be required for prior replacement 
of lost vireo habitat values. The annualized equivalent of the $375,000 
one-time cost is $27,000 per year.
    The Home Capital Development Group's planned Rancho San Diego 
project may adversely affect critical habitat in the Sweetwater River 
area. The Service estimates that up to 3 acres of habitat may need to 
be replaced prior to project initiation at an additional cost of 
$225,000. The annualized equivalent of the $225,000 one-time cost is 
$16,000 per year.
    The Corps of Engineers authorizes a number of activities in the 
Prado Basin of the Santa Ana River critical habitat area. Future 
changes in some of these existing activities could affect critical 
habitat, and proponents may incur additional costs as a result. 
However, because project proposals were not identified during the 
public comment period of the proposed rule, the Service is unable to 
provide an estimate of any economic impact due to critical habitat 
considerations.
    Sand and gravel mining activities that are regulated under the 
Clean Water Act could affect critical habitat, especially along the San 
Luis Rey River. Although there are no specific project proposals, the 
Service anticipates that the maximum additional cost would be $75,000 
per acre of habitat destroyed.
    SANDAG is coordinating the development of HCPs under section 10 of 
the Endangered Species Act for the San Diego River and Sweetwater River 
critical habitat areas. This effort also included the development of 
draft plans for the Santa Ana River and San Luis Rey River critical 
habitat areas but these sites are no longer under consideration. The 
habitat conservation planning process is being used to address land use 
conflicts and to conserve the least Bell's vireo. The Service will 
issue section 10(a) permits if these plans are acceptable. Based on 
Service review of drafts of these plans, it is anticipated that they 
will be compatible with the designation of critical habitat, and no 
additional economic costs are expected.
    The total cost attributable to the designation of critical habitat 
for projects with supporting data is approximately $74,000 per year. 
Projects expected to be affected by critical habitat designation for 
which adequate cost data are not available would not add substantially 
to that total. Impacts on regional employment, household income, and 
tax revenues are expected to be insignificant.

Summary of Comments and Recommendations

    In the proposed rule published May 3, 1985, the revised proposed 
rule published on August 7, 1992, and associated notifications, all 
interested parties were requested to submit factual reports or 
information that might contribute to the development of a final rule 
for the vireo or its critical habitat. Appropriate State agencies, 
county governments, Federal agencies, scientific organizations, and 
other interested parties were contacted and requested to comment. A 
correction to some of the legal descriptions of the proposed critical 
habitat was published in the June 4, 1985, Federal Register (50 FR 
23458). Newspaper notices were published by June 7, 1985, in the Blade 
Tribune, Enterprise, Los Angeles Times, News Press, Riverside Press, 
San Bernardino Sun, San Diego Transcript, San Diego Tribune, and San 
Diego Union, all of which invited general public comment. Notification 
of public hearings and an extension of the comment period to August 30, 
1985, was published on July 9, 1985 (50 FR 27992). Public hearings were 
conducted in San Diego on July 30, 1985, in Oxnard on July 31, 1985, 
and in Anaheim, California, on August 1, 1985.
    An additional notification extending the comment period to December 
2, 1985, was published on October 3, 1985 (50 FR 40424). These two 
additional notifications were also published in the aforementioned nine 
newspapers in July and October, respectively. On May 2, 1986, the least 
Bell's vireo was listed as endangered, and the public comment period on 
proposed critical habitat was reopened for an additional 90 days (51 FR 
16483). A further extension of the comment period to January 1, 1987, 
was published on July 31, 1986 (51 FR 27429). Approximately 120 
interested parties were notified regarding this extension of the 
comment period.
    The public comment period was again reopened for 90 days subsequent 
to the publication of the revised proposed rule on August 7, 1992 (57 
FR 34298). Two additional public hearings were also scheduled by the 
Service. A legal notice announcing the hearings and inviting general 
public comment on the revised proposal was published in the San Diego 
Union-Tribune on August 17, 1992. About 200 potentially affected or 
interested parties were notified regarding this revised proposed 
action. Public hearings were held in Garden Grove, California, on 
October 20, 1992, and in San Diego on October 22, 1992. A total of 
about 30 individuals attended these hearings.
    Multiple comments whether written or oral from the same interested 
party are regarded as one comment. Written comments and oral statements 
questioning or opposing critical habitat designation as originally 
proposed were grouped into 24 issues and discussed in the revised 
proposed rule (57 FR 34892).
    Of the 87 comments received on the revised proposal to designate 
critical habitat, 24 (28 percent) supported the designation, 3 (3 
percent) opposed the designation, 51 (59 percent) recommended that the 
Service change the boundaries or delay the designation, and 9 (10 
percent) were non-committal.
    The Service has identified 25 issues associated with these 87 
comments that reflect a questioning of, or opposition to, critical 
habitat designation and are discussed below.
    Issue 1: Certain areas should be excluded from critical habitat 
because the habitat is already degraded, or proposed plans will 
indirectly degrade the habitat. Along the Santa Clara River, for 
example, cowbirds are numerous within the habitat and make it less 
suitable for vireos. Also, reclaimed sewage water flows through the 
Santa Clara River, and treatment chemicals may affect the vireo. At 
expected build-out conditions, the noise generated by traffic along 
such areas as Jamul Creek and the San Luis Rey River may render the 
habitat unsuitable for vireos.
    Service Response: As long as the constituent elements of critical 
habitat are present, the factors leading to the degradation of such 
habitat are not considered in the designation process. Noise, cowbird 
parasitism, pollution, and other factors contribute incremental impacts 
upon the vireo, but management of critical habitat areas may reduce or 
eliminate these impacts. Extensive unmitigated habitat loss may 
preclude the ability of a listed species to recover. Critical habitat 
designation should reduce the chances of this occurring with respect to 
the least Bell's vireo.
    The Act also specifies that certain management considerations may 
be necessary in critical habitat areas. Cowbirds are common in riparian 
habitat throughout the range of the least Bell's vireo. The judicious 
trapping of cowbirds and monitoring of vireo nests has significantly 
reduced the detrimental effects of cowbird parasitism on the vireo at 
several localities.
    Issue 2: Critical habitat should be modified to more accurately 
reflect the location of nesting and foraging habitat. Urban 
developments, agricultural lands, industrial operations, recreational 
facilities, highways, railroads, etc., are included within the 
boundaries of critical habitat designation.
    The Service has exceeded its authority under the Act by including 
in the critical habitat area, land which it knows does not meet the 
Act's definition of critical habitat. The regulations state that 
``critical habitat will be defined by specific limits using reference 
points and lines as found on standard topographic maps of the area'' 
[50 CFR 424.12(c)]. The Service should choose reference points that are 
more precise than section lines, and less ephemeral than trees and 
sandbars.
    Service Response: The suggestion to designate more precise 
boundaries may be possible in some cases. No specifics on suggested 
boundaries were provided. Attempting to redefine the critical habitat 
by another means would unduly delay a final decision on this matter.
    The Service is required to use existing, readily recognizable 
boundaries in the development of legal descriptions for critical 
habitat. The Service cannot use ephemeral features such as vegetation 
for boundaries. In cases where areas designated as critical habitat do 
not contain the primary constituent elements, impacts occurring within 
this area will not result in a finding of adverse modification by the 
Service. Thus, designation of critical habitat will not effect those 
areas within the legal critical habitat boundaries that do not contain 
vireo nesting or foraging habitat.
    Issue 3: The Service has not clarified the potential effects of 
critical habitat designation on private landowners. For example, 
Service responses to Issues 7 and 18 in the revised proposed rule (50 
FR 34892) appear contradictory. The response to Issue 7 states that 
most activities potentially taking place within critical habitat will 
require Federal approval, and therefore be subject to the requirements 
of section 7 consultation. The discussion of Issue 18, however, implies 
that Federal involvement in projects on private land would be unusual.
    Federal case law indicates that designation of critical habitat 
will, contrary to the Service's representations, affect activities on 
State and private property even if there is no Federal involvement. For 
example, in Palila v. Hawaii, 639 F. 2d 495 (9th Cir. 1981), the court 
held that the state of Hawaii's maintenance of sheep and goats within 
Palila (Loxioides bailleui) critical habitat constituted a take, even 
though there was no Federal involvement.
    Service Response: Section 7 of the Act applies only to Federal 
agencies, directing them to ensure that their actions do not jeopardize 
the continued existence of listed species or adversely modify critical 
habitat. The Service maintains that a project potentially affecting a 
federally listed species will only require section 7 consultation when 
Federal funding, approval, permitting, licensing, or other 
discretionary authority is involved. Because the least Bell's vireo 
critical habitat is primarily wetland, it is anticipated that the Army 
Corps of Engineers will be involved in projects affecting this habitat, 
through the section 404 permitting process of the Clean Water Act. A 
section 404 permit is required for projects involving dredge or fill of 
jurisdictional wetlands or waters of the United States. For projects on 
private property, where wetland within critical habitat is neither 
dredged nor filled, Federal involvement under section 7 is not 
anticipated.
    By contrast, section 9, which prohibits the unpermitted ``take'' of 
endangered species, applies to all ``persons'' (as defined in the Act) 
within the jurisdiction of the United States. Pursuant to section 9 of 
the Act and the regulations and statutes pertaining thereto, ``take'' 
means to ``harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture or collect, or to attempt to engage in any such conduct'' [16 
U.S.C. 1532(19)]. In the case of Palila v. Hawaii, the Court rendered 
an opinion on the legal definition of ``take.'' The Court ruled in 
Palila v. Hawaii that habitat destruction harms a species by indirectly 
causing a decline in the population, and precluding recovery of the 
species. Therefore, the court's ruling in this case pertained to the 
legal definition of ``take'' and not the designation or function of 
critical habitat. A landowner destroying vireo habitat might be 
involved in a section 9 taking, but would have no incremental legal 
exposure as a result of critical habitat designation.
    Issue 4: The revised proposed rule uses an improper incremental 
approach to the economic analysis required by the Act. In the revised 
proposed rule, the Service stated that the economic analysis should 
only apply to project-related costs of mitigation within critical 
habitat designation over and above those costs that would be incurred 
as a result of listing the vireo. The Service thereby eliminated the 
restraints imposed through the balancing process set forth in section 4 
of the Act.
    Service Response: The effects of critical habitat designation are 
incremental, and represent only a portion of the total cost of a 
species' conservation. A high level of protection is already afforded 
to least Bell's vireo habitat by the Clean Water Act and Federal 
wetlands policy. An additional layer of protection has been added to 
this by the listing of the vireo, which prohibits jeopardy and take of 
the species. Even without designation of critical habitat, modification 
of occupied vireo habitat can constitute jeopardy or take. Federal 
agencies cannot adversely modify designated critical habitat. As 
discussed above under ``Available Conservation Measures,'' that is in 
addition to the requirement to avoid jeopardizing the continued 
existence of a federally listed species. Furthermore, if a Federal 
agency may affect critical habitat, that agency must consult with the 
Service even if the habitat happens to be unoccupied. These added 
section 7 requirements were considered in the development of the 
economic analysis.
    In the 1982 amendments to section 4 of the Act, Congress added the 
word ``solely'' to the statutory directive that the Secretary base 
listing on the best scientific and commercial data available. A House 
of Representatives report states:

    The addition of the word ``solely'' is intended to remove from the 
process of the listing or delisting of species any factor not related 
to the biological status of the species. The committee strongly 
believes that economic considerations have no relevance to 
determinations regarding the status of species * * *. Applying economic 
criteria to the analysis of these alternatives and to any phase of the 
species listing process is applying economics to the determinations 
made under section 4 of the Act and is specifically rejected by the 
inclusion of the word ``solely'' in this legislation. [H.R. Rep. No. 
97-304; see 16 U.S.C. 1533(b)(1)(A)]

    The Joint Regulations on Endangered Species also state that the 
Secretary may make a determination of listing ``solely on the basis of 
the best available scientific and commercial information regarding a 
species' status, without reference to possible economic or other 
impacts to such determination'' (50 CFR Sec. 424.11(b)). In 1978, 
Congress amended section 4 of the Act to require the Secretary to take 
into consideration ``the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat'' (16 
U.S.C. 1532(5)(A)(i)). Federal regulations on implementation of the Act 
state that ``A final designation of critical habitat shall be made on 
the basis of the best scientific information available, after taking 
into consideration the probable economic and other impacts of making 
such a designation in accordance with Sec. 424.19'' (50 CFR 
Sec. 424.12(a)). The Service interprets the history of the Act and 
Federal regulations to clearly indicate that the economic analysis 
should only take into account the effects of designating critical 
habitat, and not those of listing the species.
    Issue 5: Some individuals wanted to know if critical habitat 
designation would result in the need for additional mitigation for 
projects with ongoing management or conservation plans designed to 
mitigate impacts to vireos.
    Service Response: For projects that have completed the section 7 
consultation process to develop mitigation measures for direct and 
indirect impacts to the least Bell's vireo and vireo habitat, it is 
highly unlikely that additional measures will be required as a result 
of the critical habitat designation.
    For example, two California Department of Transportation (CALTRANS) 
projects in San Diego County and an Orange County Water District water 
conservation project in the Prado Basin that involve Federal funds, 
permits, or authorizations prompted formal section 7 consultations 
because of proposed impacts to vireos and/or vireo habitat irrespective 
(and in advance) of critical habitat designation. In each case, the 
overall project-related impacts to the vireo were evaluated and 
disclosed, and mitigation was proposed in the required environmental 
documentation. Mitigation was appropriately developed in each instance 
that compensates, to the extent deemed reasonable and prudent, for 
unavoidable direct and indirect impacts to the vireo, vireo habitat, 
and public fish and wildlife resources in general. Therefore, the 
Service fully anticipates, in these instances, that no additional 
mitigation would be required, prudent, or even possible as a result of 
the designation of critical habitat. In this regard, the Service cannot 
summarily dismiss the Orange County Water District's (District) 
position that ``barring unforeseen circumstances, the mitigation and 
conservation measures that have been implemented and proposed for 
implementation'' as a result of a current section 7 consultation will 
fully mitigate for impacts associated with the District's water 
conservation project.
    Issue 6: Since conversion of land to residential or commercial 
development would adversely affect critical habitat, property owners 
would lose beneficial use of their land. Critical habitat designation 
within certain areas, such as the San Luis Rey Municipal Water 
District, would thus constitute a regulatory taking of property.
    Service Response: Property owners within the critical habitat 
boundaries are not expected to lose beneficial use of their land as a 
result of critical habitat designation itself. In evaluating proposed 
projects within critical habitat boundaries, under section 7 of the 
Act, the Service would first determine if the specific area contained 
foraging or nesting habitat for least Bell's vireos. The designation of 
critical habitat would only affect those areas that contained elements 
of nesting or foraging habitat. Areas that lack foraging or nesting 
habitat would not be affected by the designation. Furthermore, within 
critical habitat, only those activities with Federal involvement would 
be subject to section 7 consultation. Such involvement is most likely 
to occur when a project involves dredge or fill of waters of the United 
States. In cases where section 7 consultation is required, reasonable 
and prudent alternatives or measures are likely to be developed that do 
not preclude the development of private property. Given the pertinent 
data pertaining to past section 7 consultations involving the vireo or 
other listed species in southern California, it is extremely unlikely 
that any project would be effectively stopped or significantly modified 
because of the section 7 process. In fact, a World Wildlife Fund study, 
using 12 years of data from the entire United States, concluded that 
``The vast majority of federal activities subject to consultation 
successfully proceeded to completion while accommodating the needs of 
endangered and threatened species.'' Less than 1 percent of the actions 
that were the subject of formal consultation during this study were 
``blocked'' because of section 7 (Barry et al. 1992).
    In the rare cases when the Service issues jeopardy opinions without 
acceptable reasonable and prudent alternatives, the action agency may 
take the project to an exemption committee and ask that its projects be 
exempted from the requirements of the Act. The Service anticipates that 
few, if any, opinions would not contain acceptable reasonable and 
prudent alternatives.
    Issue 7: If it is found that water extraction is damaging to least 
Bell's vireo critical habitat, then restrictions on water extraction 
would impinge on the rights of landowners and have a large economic 
impact on agriculture. Such restrictions would also threaten the supply 
of domestic water necessary to meet the water demands for certain 
communities.
    Service Response: As discussed in the response to Issue 3 above, 
only those projects with Federal involvement would be directly affected 
by critical habitat designation. The Service does not anticipate any 
circumstances in which there would be Federal involvement in water 
extraction processes on private property within any of the critical 
habitat areas. Water extraction rights on private property could not be 
negated because of critical habitat designation.
    Issue 8: The benefits of designating certain areas such as Newhall 
property on the Santa Clara River do not exceed the economic costs of 
such designation. Current and potential revenues from agriculture, 
housing development, and filming activities on Newhall property, within 
proposed critical habitat, exceed $200 million, and revenues from 
adjacent Newhall activities potentially impacted by the designation 
exceed $160 million. In addition to Newhall, other property owners have 
expressed concerns over the costs of mitigation requirements that would 
be generated by the critical habitat designation on their lands.
    Service Response: Newhall's analysis (Newhall Land and Farming 
Company 1992) and comments submitted by other landowners are based on 
the assumption that designation of critical habitat would prohibit or 
substantially modify all activities within the designated boundaries. 
The response to Issue 6 above indicates that the Service anticipates 
very few, if any, projects to be stopped or significantly modified due 
to critical habitat designation itself. Any impact on these projects 
would be through section 9 prohibitions on taking.
    In addition, habitat occupied by vireos is already protected 
because of its status as a federally-listed species. The Clean Water 
Act, National Environmental Policy Act, Fish and Wildlife Coordination 
Act, Federal wetland policy, sections 1601 and 1603 of the California 
Fish and Game Code, and the California Environmental Quality Act also 
provide various degrees of consideration or protection for these areas. 
The requirements of these statutes overlap considerably, and ascribing 
costs incurred for mitigation or compensation to each of these statutes 
separately is problematical.
    If occupied vireo habitat, jurisdictional wetlands or waters of the 
United States are to be affected by a Federal agency or project 
proponent, that agency or project proponent is presently required (in 
the absence of critical habitat designation) to replace those values 
with from 1 to 5 acres of appropriate habitat created for every acre 
lost. However, this replacement is generally mandated at the Federal 
level only if the impact exceeds 1 acre under the Corps' Nationwide 
Permit Program implementing, in part, section 404 of the Clean Water 
Act or if vireos would be affected by the project pursuant to section 7 
of the Act and the implementing regulations pertaining thereto.
    With critical habitat designation, the essential elements of 
suitable, but unoccupied, habitat must be preserved through project 
design or mitigation. Thus, designation of critical habitat generally 
would have an incremental economic effect only on federally involved 
projects that are less than an acre in size or that require mitigation 
measures above and beyond what is currently being negotiated or 
required given the vireo's status as a listed species and the 
regulatory authority of the Corps of Engineers and California 
Department of Fish and Game to require the minimization or mitigation 
of impacts to jurisdictional wetlands or waters. Therefore, those 
mitigation measures attributable solely to critical habitat designation 
(e.g., the replacement or rehabilitation of small amounts of habitat, 
contributions to habitat or species management funds) are expected to 
be relatively infrequent and add only incrementally to project costs. 
Costs associated with wetland creation are discussed under the response 
to Issue 3 in the revised proposed rule (57 FR 34892).
    In any case, the National Environmental Policy Act and the 
Endangered Species Act state that costs associated with mitigation or 
compensation are part of the project costs. Because the least Bell's 
vireo is essentially an obligate wetland species, the costs associated 
with impacts to unoccupied vireo habitat would be borne by the project 
applicant whether or not critical habitat was designated. However, the 
Service believes that no mitigation costs will be attributable to the 
designation of critical habitat for projects on private lands that are 
outside the jurisdiction of Federal regulatory agencies.
    Issue 9: The designation of critical habitat may impact flood 
control projects. If periodic removal of riparian vegetation from flood 
control channels is restricted, the impacts will involve not only 
losses of water and uncontrolled flooding, but also costs in terms of 
human life.
    Service Response: The response to Issue 6 above states that 
projects are rarely blocked, since reasonable and prudent alternatives 
or measures are usually developed that allow the project to proceed in 
a timely manner. The response to Issue 8 above addresses the potential 
increase in regulation due to critical habitat designation. A high 
level of protection is afforded to wetlands by the Clean Water Act and 
Federal wetland policy. Regulations to avoid, minimize, or compensate 
for impacts to wetlands in general, and vireo habitat in particular, 
would be incurred even if critical habitat was not designated. The 
layer of regulation added through critical habitat designation is not 
expected to preempt public health and safety. Although the Service 
encourages long-range planning of all projects that adversely affect 
the vireo or vireo habitat, it recognizes that emergencies (e.g., 
fires) develop that necessitate accelerated consultations or the 
assessment of impacts and development of appropriate mitigation 
measures after-the-fact.
    Issue 10: Utility corridors and access roads should not be included 
as critical habitat. Both routine and emergency maintenance are 
necessary to maintain public safety and service.
    Service Response: Utility corridors exist within least Bell's vireo 
critical habitat; however, no biological evidence or other basis 
justifies the exclusion of such corridors from a critical habitat 
designation. The Service will address each project on a case-by-case 
basis and assist the Federal action agency in avoiding, minimizing, and 
mitigating for impacts to the vireo and its critical habitat. In 
addition, agencies are generally encouraged to request formal 
consultation on programmatic activities. Such consultations would 
facilitate long range planning efforts. The Service is unaware of any 
instances where the maintenance of utility structures or facilities was 
precluded by the listing of the vireo; it is anticipated that the 
designation of critical habitat similarly will not impinge on necessary 
operations. Furthermore, as was explained in the response to Issue 9 
above, pertinent regulations and Service policy provide for the 
resolution of impacts to listed species and their critical habitat that 
result from corrective actions taken in true emergency situations.
    Issue 11: Designation of critical habitat requires an Environmental 
Impact Statement (EIS) pursuant to the requirement for Federal agencies 
to comply with the National Environmental Policy Act (NEPA).
    Service Response: For the reasons cited in the NEPA section of this 
rule, the Service has determined that rules issued pursuant to section 
4(a) of the Endangered Species Act do not require the preparation of an 
EIS.
    Issue 12: Prior replacement of habitat should only be required when 
it can be conclusively determined that existing habitat is being used 
at its full potential. Several commenters also expressed the opinion 
that the mandated replacement of vireo habitat prior to project 
commencement would be an unreasonable and excessive requirement.
    Service Response: In the vast majority of section 7 consultations 
on potential impacts to the vireo, the Service has recommmended prior 
replacement of vireo habitat, and does not anticipate changing this 
pattern with designation of critical habitat. Only in cases involving a 
relatively large acreage of unoccupied vireo habitat would such a 
requirement result from critical habitat designation. Because 
requirements for habitat replacement in advance have invariably been 
prompted by projects with substantial impacts to vireos or significant 
portions of occupied vireo habitat, it is anticipated that prior 
habitat replacement would be necessary in those circumstances 
regardless of whether critical habitat has been designated. In some 
cases, especially where land costs are high, project proponents have 
chosen to mitigate project-related impacts in advance to increase the 
likelihood of ``no net loss'' of wetland or vireo habitat values. This 
approach has also been used as a means to minimize the required amount 
of habitat compensation.
    Issue 13: Several commenters suggested that the Service should 
specify the criteria used to distinguish vireo quality habitat within 
the designated boundaries. Some suggested that the Service should have 
designated boundaries to more accurately reflect the actual habitat 
boundaries.
    Service Response: In establishing the approximate limits of actual 
critical habitat within the designated critical habitat area 
boundaries, the Service utilized National Wetland Inventory maps. 
Because the large majority of vireo habitat consists of mixed woodland 
or willow woodland habitats that are contained within jurisdictional 
wetlands and waters of the United States, these maps fairly accurately 
designate the extent of actual or potential habitat at a designated 
locale.
    Issue 14: The Service has not addressed the biological implications 
of artificially sustaining riparian habitat in the successional stage 
appropriate to support least Bell's vireos. What associated habitats 
and species will suffer from receiving a lower level of protection as a 
direct or indirect effect of the designation?
    Service Response: The Service is not advocating artificial 
maintenance of riparian habitat at a particular successional stage. 
Rather, the Service is advocating maintenance of natural systems under 
conditions that will be conducive to supporting vireo populations. 
Since the vireo was first listed by the state of California in 1980, it 
has not been necessary to artificially maintain vireo habitat at a 
given successional stage.
    Issue 15: Designation of critical habitat should be postponed until 
ongoing conservation plans to mitigate negative impacts to the vireo 
are in place and evaluated, or until further studies are completed and 
we know exactly why the vireo has declined.
    Service Response: On the basis of past experience with other listed 
species and critical habitat designations, the Service believes that 
the designation of critical habitat will not be incompatible with 
existing conservation or management plans. Current drafts of habitat 
conservation plans for the San Diego and Sweetwater Rivers are 
considered by the Service to be compatible with critical habitat 
designation. The designation of critical habitat may, in fact, simplify 
the creation and funding of area or drainage-specific management plans.
    Based on the demonstrated, relative success of several vireo 
management plans and other conservation efforts within its range and 
the endangered status of this species, the Service cannot justify the 
postponement of critical habitat designation until all management plans 
are evaluated or in place. Such a postponement could reduce the chances 
for the survival or recovery of the species.
    Issue 16: The Orange County Water District requested the exclusion 
of all lands below the 505-foot elevation in the Prado Basin from 
critical habitat designation because of its commitment to mitigate 
impacts to vireos and vireo habitat below that elevational contour.
    Service Response: The Corps' Draft EIS for the Orange County Water 
District's water conservation project indicates that implementation of 
the District's project will be phased. The level of the water 
conservation pool will be incrementally raised: (1) Once habitat above 
the 505-foot elevation is rehabilitated, restored, or created to 
replace occupied and presently unoccupied vireo habitat below 505-ft 
that is destroyed or degraded because of the project, and (2) it is 
demonstrated that the vireo population is not adversely impacted by 
their displacement or the destruction or degradation of preferred 
habitat. For these reasons, the Service did not remove lands from 
critical habitat designation within the Prado Basin that currently 
accommodate a majority of the nesting pairs representing the second 
largest vireo population in the United States.
    Issue 17: Several commenters noted that the Service should also 
list critical habitat for other areas (e.g., the lower Santa Ynez River 
in Santa Barbara County) or for all areas with populations of more than 
10 pairs of vireos.
    Service Response: The Service retains the option to consider the 
designation of additional critical habitat. Designation of more 
critical habitat would be the subject of a new proposed rule that would 
solicit public comments and provide for a public hearing, if so 
requested.
    Issue 18: Given the high levels of cowbird nest parasitism and 
habitat loss, it may already be too late to save the vireo even if 
habitat is preserved.
    Service Response: The stability or instability of populations is 
not one of the criteria used to determine the appropriateness of 
designating critical habitat. The Act requires the Service to designate 
critical habitat for a listed species in areas that are essential to 
the conservation of the species, unless it is not prudent to do so. The 
Act would require the designation of critical habitat even if little 
could be done to minimize most threats facing the species. Fortunately, 
however, the vireo has responded favorably to management in a number of 
locations throughout its range. Therefore, it seems reasonable to 
conclude that the designation of critical habitat will provide 
additional protection to the vireo and increase the likelihood of its 
recovery.
    Issue 19: Certain areas should not be designated as critical 
habitat because they do not ``* * * require special management 
considerations or protections,'' as prescribed by section 
3(5)(A)(i)(II) of the Act. This comment was usually followed by a 
belief about which type of regulations already provide ``special 
management considerations or protections.''
    The Service should not designate critical habitat because other 
regulations and levels of government already protect the habitat 
sufficiently. For example, local and/or State governments can manage 
habitat and prevent private landowners from clearing riparian 
vegetation. Projects altering a stream course are subject to review 
under section 1601 or 1603 of the California Fish and Game Code.
    Federal regulations also protect proposed critical habitat. 
Designation of critical habitat is not necessary for areas in which 
activities are planned that will require National Environmental Policy 
Act (NEPA) review and compliance. Nor is it necessary to designate 
critical habitat on the Santa Ynez River because this area is already 
protected under the jurisdiction of the Forest Service. All these 
regulations and management practices preclude the need for designating 
critical habitat.
    Service Response: Local governments have not prevented habitat loss 
for the least Bell's vireo under existing regulatory mechanisms. Areas 
under Federal jurisdiction may require special management 
considerations or protection that would not be afforded without 
critical habitat designation. For these reasons, the Service believes 
that inclusion of areas already subject to local, State, or Federal 
regulations is consistent with the definition of critical habitat cited 
under section 3(5)(A)(i)(II) of the Act.
    Issue 20: Critical habitat designation in the Prado Basin of the 
Santa Ana River would force the Corps of Engineers to release storm 
water quickly (to minimize the adverse effects of standing water on 
vireo habitat) and at too great a velocity for the local water district 
to divert it into their percolation (spreading) basins for water 
conservation.
    Service Response: The Service has been working with the Corps of 
Engineers, Orange County Water District, and The Nature Conservancy to 
resolve conflicts between vireo conservation and flood control/water 
conservation activities in the Prado Basin. Based on the distribution 
and abundance of the vireo within the Prado Basin relative to the 
reservoir pool inundation zone, these water management activities may 
affect a listed species. On that basis, the Corps initiated formal 
consultation with the Service on October 16, 1992. The Corps has 
included a thorough compensation package as part of the project 
description. The proposed compensation measures very likely adequately 
provide for impacts to the vireo and its habitat. For this reason, the 
Service believes that a critical habitat designation is not likely to 
impose any additional costs for avoiding, minimizing, or mitigating 
impacts to the vireo.
    Issue 21: The cost of mitigation as a result of critical habitat 
designation would place an unreasonable financial risk on the project 
proponent. For example, one commenter estimated it would cost about $4-
10 million to create habitat to compensate for the habitat that would 
be destroyed by raising the height of Gibraltar Dam. Since riparian 
habitat creation is expensive and the results are unpredictable, the 
project proponents may spend a great deal of money with no return if 
the mitigation program should fail.
    Service Response: As stated in the response to Issue 12 above, 
designation of critical habitat could, in a few cases, require prior 
habitat replacement of applicants for projects in areas that contain 
suitable, but unoccupied, vireo habitat.
    Wetland compensatory mitigation can be a costly, time-consuming, 
and difficult endeavor with an uncertain probability of success. 
However, in the 6 years since the vireo was listed, two agencies have 
constructed projects that have been subject to this prior replacement 
requirement, and both have successfully created habitat that now 
supports vireos. As restoration techniques are further refined, it is 
likely that revegetation projects will become more successful in 
shorter time frames. The requirement to create vireo habitat before 
existing habitat is destroyed ensures that this federally listed 
species would not sustain a loss of habitat, even temporarily. In some 
cases, the temporary loss of habitat may have a significant adverse 
impact on the vireo. Given the uncertainty of wetland creation or 
restoration, it is unlikely that the Service would support a project 
proposal that would result in the destruction of large areas of 
riparian habitat without first providing adequate replacement habitat 
for the least Bell's vireos in the area.
    Under section 4(b)(2) of the Act, the Secretary has the authority 
to exclude an area from critical habitat designation ``* * * if he 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he 
determines, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species concerned.'' The Gibraltar Reservoir 
population of the vireo represents the northern edge of its current 
range, and therefore is most likely to be the source of recolonization 
to the north or to the Central Valley. Because of this geographical 
significance, the designation of this area as critical habitat is 
appropriate.
    In any case, the proposed project to raise the height of Gibraltar 
Dam is not currently being considered, since the city of Santa Barbara 
is using economically feasible alternative water sources.
    Issue 22: Critical habitat should not be designated because of 
project delays due to lengthy permitting processes and the time 
required to offset negative impacts before a project could be 
constructed.
    Service Response: For projects where unavoidable impacts to 
unoccupied vireo habitat would occur, compensatory mitigation in the 
form of habitat creation may have to be completed prior to the 
destruction of existing habitat so that the vireo would not sustain a 
net loss of available nesting or foraging habitat.
    The amount of time for successful habitat creation would vary 
depending on the methods used and could take several years. The action 
agency or permit applicant would need to initiate the restoration 
activities early enough to allow sufficient time for vireo habitat to 
develop. Most major projects are in the planning stages long enough to 
provide adequate time for advance habitat creation if the compensation 
efforts are done expeditiously. Proper planning would reduce the 
likelihood of a project delay.
    Section 7 regulations require the Service to complete formal 
consultation within 90 days of initiation and issue a biological 
opinion within an additional 45 days. By policy and in practice, the 
Service usually completes formal consultation within 90 days.
    Issue 23: Designation of critical habitat is unnecessary because 
nest parasitism by cowbirds and predation are responsible for the 
decline of the vireo, rather than habitat loss. One commenter stated 
that vireo habitat is plentiful, and efforts to conserve the species 
should focus on other aspects of its ecology.
    Service Response: Two major factors have been identified as being 
responsible for the relatively recent, dramatic decline of the least 
Bell's vireo: (1) Widespread habitat destruction, and (2) high rates of 
nest parasitism by cowbirds (Goldwasser et al. 1980). The synergistic 
effects of these two factors may have further exacerbated the 
situation. Although cowbird removal programs have effectively solved 
the problem of excessive parasitism at a number of locales, habitat 
conservation and creation programs have not achieved the same level of 
success. These programs eventually must be successful if conservation 
and recovery of the vireo is to be achieved. To that end, the 
designation of critical habitat affords a higher level of protection to 
riparian woodland habitats that currently (or potentially could) 
support nesting pairs of vireos. The Service considers this action 
particularly appropriate in light of the inability of existing 
regulatory mechanisms (e.g., the Clean Water Act, local regulations) to 
adequately protect vireo habitat.
    Issue 24: The critical habitat designation would result in more 
stringent local permitting and approval processes.
    Service Response: The Service has no authority to require local 
agencies to implement land use restrictions consistent with the 
regulations protecting designated critical habitat although the Service 
would support such actions. The commenters who raised this issue are 
land owners in San Diego County. The Service contacted the San Diego 
County Department of Planning and Land Use (DPLU) with respect to this 
issue and was informed that the DPLU does not anticipate any changes in 
local ordinances as a result of critical habitat designation (T. 
Oberbauer, County of San Diego, Department of Planning and Land Use, 
pers. comm.).
    Issue 25: The Service should not designate critical habitat on Camp 
Pendleton Marine Corps Base because the Service and the Marine Corps 
have signed a Memorandum of Understanding (MOU) that was designed to 
accomplish the same degree of habitat protection as critical habitat 
would provide. The management program for the least Bell's vireo on 
Camp Pendleton eliminates the need for special management 
considerations, and therefore, designation of critical habitat is 
unnecessary.
    Service Response: The Service believes that the MOU is providing an 
adequate level of protection to the vireo and its habitat on Camp 
Pendleton. Under the MOU, the Service agreed to offer technical 
assistance and to consult under section 7 of the Act when requested. 
The Marine Corps agreed to consult under section 7 of the Act on 
activities that may affect the least Bell's vireo, to request formal 
consultation on various programmatic issues such as road maintenance 
and fire control, to maintain 1,200 acres (480 ha) of vireo quality 
habitat along the Santa Margarita River, and to continue cowbird 
trapping efforts (which were initiated in 1983) and nest monitoring 
activities (which were initiated in 1981) as long as funding was 
available.
    The Santa Margarita River supported 1,200 acres of quality vireo 
habitat and 98 territorial male least Bells' vireos when the MOU was 
signed in 1986. Since 1986, the Marine Corps has continued cowbird 
trapping efforts, and until 1991 carried out a thorough monitoring 
program. The vireo population along the Santa Margarita River on Camp 
Pendleton has increased from 98 to 212 territorial males from 1986 to 
1991.
    Although this area is essential to the conservation of the species, 
the Service finds that a formal critical habitat designation is 
unnecessary because the MOU contains provisions for section 7 
consultation for proposed actions that may destroy or adversely modify 
vireo habitat. The Service also finds that a level of protection 
equivalent to or greater than that provided by a critical habitat 
designation can be achieved for the vireo on this portion of the Santa 
Margarita River through cooperation with the Marine Corps under the 
MOU. However, the Service will reconsider its position to designate 
critical habitat at this locality if conditions warrant. The Service 
will use its authority under sections 7 and 9 of the Act to insure 
compliance with the prohibitions on unauthorized take. For these 
reasons, the Service has removed about 9,600 acres (3,840 ha) on Camp 
Pendleton from the critical habitat designation.

National Environmental Policy Act

    The Service has determined that an Environmental Assessment, as 
defined under the authority of 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 of 1973, as 
amended. A notice outlining the Service's reasons for this 
determination was published in the Federal Register on October 25, 1983 
(48 FR 49244).

Regulatory Flexibility Act and Executive Order 12866

    This rule has been reviewed under Executive Order 12866. The 
Department of the Interior has determined that this designation will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Based on the information discussed in this rule concerning public 
projects and private activities within the critical habitat areas, it 
is not expected that significant economic impacts will result from the 
critical habitat designation. In addition, there are a limited number 
of actions on private land that have Federal involvement through funds 
or permits that would affect or be affected by the critical habitat 
designation; the potential economic impact of the critical habitat 
designation on these actions will be minor. Also, no direct costs, 
enforcement costs, or information collection or recordkeeping 
requirements are imposed on small entities by this designation. This 
action does not impose any recordkeeping requirements as defined by the 
Paperwork Reduction Act of 1980.

References Cited

Barry, D., L. Harroun, and C. Halverson. 1992. For conserving listed 
species, talk is cheaper than we think: The consultation process 
under the Endangered Species Act. World Wildlife Fund, Washington, 
DC.
Franzreb, K.E. 1989. Ecology and conservation of the endangered 
least Bell's vireo. U.S. Fish and Wildl. Serv., Biol. Rep. 89(1). 17 
pp.
Gaines, D. 1974. A new look at the nesting riparian avifauna of the 
Sacramento Valley, California. Western Birds 5:61-79.
Gaines, D. 1977. The status of selected riparian forest birds in 
California. Unpubl. rep. California Department of Fish and Game, 
Sacramento, California. 56 + viii pp.
Goldwasser, S. 1978. Distribution, reproductive success and impact 
of nest parasitism by brown-headed cowbirds on least Bell's vireos. 
California Department of Fish and Game, Nongame Wildlife 
Investigations, Job IV-1.5.1. 27 pp.
Goldwasser, S., D. Gaines, and S. Wilbur. 1980. The least Bell's 
vireo in California: A de facto endangered race. American Birds 
34:742-745.
Gray, M.V., and J. Greaves. 1984. Riparian forest as habitat for the 
least Bell's vireo. Pages 605-611 in R. Warner and K. Hendrix, eds. 
California riparian systems: Ecology, conservation and productive 
management. University of California Press, Davis.
Grinnell, J., and A. Miller. 1944. The distribution of the birds of 
California. Pacific Coast Avifauna 27. 608 pp.
Kus, B.E., and K.L. Miner. 1987. Foraging behavior of the least 
Bell's vireo: Use of riparian and non-riparian habitats. Unpubl. 
rep. San Diego State University, San Diego, California. 22 pp.
Newhall Land and Farming Company. 1992. Public comments submitted to 
the Fish and Wildlife Service on November 5, 1992, regarding the 
revised proposed rule to designate critical habitat for the least 
Bell's vireo.
RECON (Regional Environmental Consultants). 1989. Comprehensive 
species management plan for the least Bell's vireo (Vireo bellii 
pusillus). Unpubl. rep. prepared for the San Diego Association of 
Governments, San Diego, California. Salata, L. 1983. Status of the 
least Bell's vireo on Camp Pendleton, California. Unpubl. rep. U.S. 
Fish and Wildlife Service, Laguna Niguel, California. 62 pp.
Salata, L. 1987. The status of the least Bell's vireo at Camp 
Pendleton, California in 1987. Unpubl. rep. U.S. Marine Corps, Camp 
Pendleton, California. 43 pp.
U.S. Fish and Wildlife Service. 1992. Economic analysis of critical 
habitat designation for the least Bell's vireo. Unpubl. rep. on file 
at U.S. Fish and Wildlife Service, Carlsbad, California. 115 pp.
Wilbur, S. 1980. Status report on least Bell's vireo. Unpubl. rep. 
U.S. Fish and Wildlife Service, Portland, Oregon. 46 pp.

Authors

    This rule was prepared by Service staff from the Carlsbad Field 
Office, 2730 Loker Avenue West, Carlsbad, California 92008 (telephone: 
619/431-9440) and the Region 1 Regional Office, 911 NE 11th Avenue, 
Portland, Oregon 97232-4181 (telephone: 503/231-6131).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

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

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


Sec. 17.11  [Amended]

    2. Amend Sec. 17.11(h) by revising the ``Critical habitat'' entry 
for ``Vireo, least Bell's,'' under BIRDS to read ``17.95(b)''.
    3. Amend Sec. 17.95(b) by adding critical habitat for the least 
Bell's vireo in the same alphabetical order as the species occurs in 
Sec. 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) * * *

LEAST BELL'S VIREO (Vireo bellii pusillus)

    California: Areas of land and water as follows:

TR02FE94.005

    1. Santa Ynez River, Santa Barbara County (Index map location 
A).
    T. 5 N., R. 27 W.: secs. 1, W\1/2\, and 12, all except NE\1/4\. 
In addition, all adjacent lands within the following circumscribed 
area: beginning at a point 0.25 mi south of the northeast corner of 
sec. 12, T. 5 N., R. 27 W.; thence east about 0.5 mi; thence north 
about 1.25 mi; thence east approximately 1.3 mi to the intersection 
of Mono Creek and the Los Prietos Y Najalayegua land grant boundary; 
thence south about 2.5 mi; thence east approximately 2.6 mi to Agua 
Caliente Creek (at a point about 0.4 mi north and 0.1 mi east of the 
Pendola Guard Station); thence south about 0.5 mi; thence east about 
1.0 mi; thence south about 0.25 mi; thence east about 0.5 mi; thence 
south about 0.75 mi to the southwest corner of T. 5 N., R. 25 W., 
sec. 19; thence east to the southeast corner of T. 5 N., R. 25 W., 
sec 20; thence south about 0.63 mi; thence west to western boundary 
of T. 5 N., R. 26 W., sec. 25; thence south about 0.16 mi; thence 
west to eastern boundary of T. 5 N., R. 26 W., sec. 27; thence north 
about 0.25 mi; thence west to western boundary of T. 5 N., R. 26 W., 
sec. 27; thence north to the northeastern corner of T. 5 N., R. 26 
W., sec. 27; thence north to the northeastern corner of T. 5 N., R. 
26 W., sec. 28; thence west to the northwest corner of T. 5 N., R. 
26 W., sec. 28; thence north to the northeast corner of T. 5 N., R. 
26 W., partially unsurveyed sec. 20; thence west to the northeast 
corner of T. 5 N., R. 26 W., unsurveyed sec. 19; thence north about 
0.5 mi; thence west to the southeast corner of T. 5 N., R. 27 W., 
sec. 13, NE\1/4\; and thence north to the southeast corner of T. 5 
N., R. 27 W., sec. 12.

TR02FE94.006

    2. Santa Clara River, Los Angeles and Ventura Counties (Index 
map location B).
    T. 4 N., Rs. 17 and 18 W.: all land within 3,500 feet 
perpendicularly and generally southward or westward of a line 
commencing at a point 100 yards west of BM 740 (a point about 2.3 mi 
east of the intersection of Main Street and State Highway 126 in 
Piru); thence east along State Highway 126 to its intersection with 
The Old Road at Castaic Junction; and thence eastward and southward 
along The Old Road to its intersection with Rye Canyon Road.

TR02FE94.007

    3. Santa Ana River, Riverside and San Bernardino Counties (Index 
map location C).
    All lands below the 543-foot contour in partially surveyed T. 3 
S., R. 7 W., within the Prado Flood Control Basin (upstream from 
Prado Dam). In addition, the following adjacent lands above the 543-
foot contour in the Santa Ana River bottom and within the following 
boundaries: commencing at a point 0.1 mi east and 0.2 mi north of 
the southwest corner of sec. 2, T. 3 S., R. 7 W.; thence north about 
0.4 mi; thence to a point 0.25 mi east and 0.4 mi north of southwest 
corner of sec. 31, T. 2 S., R. 6 W.; thence to the northeast corner 
of sec. 31, T. 2 S., R. 6 W.; thence east 0.35 mi; thence to 
midpoint of southern section line of sec. 21, T. 2 S., R. 6 W.; 
thence to a point 0.6 mi south of the northwest corner of sec. 25, 
T. 2 S., R. 6 W.; thence east about 0.6 mi; thence to a point 0.2 mi 
north of the center of sec. 30, T. 2 S., R. 5 W.; thence east about 
0.7 mi; thence to a point 0.6 mi east of the southwest corner of 
sec. 20, T. 2 S., R. 5 W.; thence east about 0.8 mi; thence 0.6 mi 
south; thence to a point 0.3 mi north of the southwest corner of 
sec. 28, T. 2 S., R. 5 W.; thence to a point 0.45 mi north of the 
southwest corner of sec. 29, T. 2 S., R. 5 W.; thence generally 
westward and southward along the Riverside Corporation Boundary (as 
shown on USGS Riverside Quadrangle 1980) to its intersection with 
Van Buren Blvd.; thence to a point 0.2 mi east and 0.75 mi south of 
the northwest corner of sec. 27, T. 2 S., R. 6 W.; thence 0.25 mi 
north; thence 0.7 mi west; thence to a point 0.85 mi north of the 
southwest corner of sec. 32, T. 2 S., R. 6 W.; thence to a point 
0.75 mi west and 0.1 mi south of the northeast corner of sec. 6, T. 
3 S., R. 6 W.; thence 0.5 mi west; and thence to the 543-foot 
contour at a point 0.3 mi west of the southeast corner of sec. 2, T. 
3 S., R. 7 W.

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TR02FE94.008


BILLING CODE 4310-55-C

TR02FE94.009

    4. Coyote Creek, San Diego County (Index map location D).
    T. 9 S., R. 5 E.: secs. 22, N\1/2\, SE\1/4\; and 23, SW\1/4\.

TR02FE94.010

    5. Santa Margarita River, San Diego County (Index map location 
E).
    T. 9 S., R. 3 W.: secs. 4, all lands below the 600-foot contour; 
5 SE\1/4\; 7; and 8.
    In T. 9 S., R. 4 W., Sec. 12 E\1/2\; 13 NE\1/4\.

TR02FE94.011

    6. San Luis Rey River, San Diego County (Index map location F).
    T. 11 S., R. 5 W.: secs. 13, S\1/2\NE\1/4\, SE\1/4\NW\1/4\, 
SW\1/4\; 14, SE\1/4\SW\1/4\, S12SE\1/4\; and 23, NW\1/4\.
    T. 11 S., R. 4 W.: secs. 3, all land north of Murray Road; 4, 
E\1/2\NE\1/4\, E\1/2\SE\1/4\SW\1/4\, W\1/2\NE\1/4\SE\1/4\, E\1/
2\NW\1/4\SE\1/4\, SW\1/4\SE\1/4\; 7, N\1/2\NE\1/4\NE\1/4\, NW\1/
4\NE\1/4\, E\1/2\W\1/2\, SW\1/4\SW\1/4\; 8, N\1/2\NE\1/4\, N\1/
2\N\1/2\NW\1/4\; 9, N\1/2\NW\1/4\; and 18, NW\1/4\.
    T. 10 S., R. 4 W.: sec. 34, S1/2SW\1/4\.
    Surveyed and unsurveyed portions according to the following 
metes and bounds: bordered on the north by a line commencing at the 
intersection of North River Road and the surveyed eastern section 
line of sec. 3, T. 11 S., R. 4 W.; thence east along said road to 
its junction with Via Puerta Del Sol; thence east approximately 0.5 
mi to State Highway 76 nearest the midpoint of sec. 31, T. 10 S., R. 
3 W.; thence northward and eastward along said highway to its 
intersection with the eastern section line of sec. 27, T. 9 S., R. 2 
W.; and bordered on the south by a line commencing at the 
intersection of Murray Road and the surveyed eastern section line of 
sec. 3, T. 11 S., R. 4 W.; thence southward and eastward along said 
road to its junction with State Highway 76; thence eastward and 
northward along said highway to its junction with Santa Fe Avenue; 
thence southeastward 3,000 feet along said avenue; thence northward 
along a straight line to Guajome Lake Road at a point 800 feet from 
the junction of said road and State Highway 76; thence northwestward 
along Guajome Lake Road to its junction with said highway; thence 
eastward along said highway to its junction with River Road in sec. 
31, T. 10 S., R. 3 W.; thence northward along said road to its 
intersection with the surveyed eastern section line of sec. 20, T. 
10 S., R. 3 W.; thence north to and northeasterly along the 250-foot 
contour in sec. 21 through partially surveyed sec. 15, T. 10 S., R. 
3 W.; thence north to a point about 0.2 mi south of the northwest 
corner of sec. 14 and continuing along the 300-foot contour from the 
western section line of sec. 14 eastward through unsurveyed sec. 11, 
surveyed secs. 13 and 12, T. 10 S., R. 3 W.; and surveyed sec. 18, 
T. 10 S., R. 2 W.; thence east to and along the 325-foot contour 
through sec. 1, T. 10 S., R. 3 W.; thence south to and along the 
350-foot contour in secs. 6 and 5, T. 10 S., R. 2 W., and secs. 32 
and 33, T. 9 S., R. 2 W., to the northern section line of sec. 33; 
thence east approximately 1.5 mi to the southeastern corner of sec. 
27, T. 9 S., R. 2 W.; and thence north about 0.4 mi to State Highway 
76 in Pala.

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TR02FE94.012


BILLING CODE 4310-55-C
    7. San Diego River, San Diego County (Index map location G).
    T. 15 S., Rs. 1 and 2 W.: commencing at the intersection of the 
Second San Diego Aqueduct and Mission Gorge Road; thence eastward 
along said road to the western-most intersection with Father 
Junipero Serra Trail; thence northward and eastward along said trail 
to the eastern-most intersection of said trail and said road; thence 
eastward along Mission Gorge Road to its intersection with Carlton 
Hills Blvd.; thence northward to its intersection with Carlton Oaks 
Drive; thence westward along said drive to its eastern-most 
intersection with Inverness Road; thence westward along said road to 
its intersection with Carlton Oaks Drive; thence westward along said 
drive to its intersection with Mast Street; thence westward and 
southward along the 320-foot contour to its intersection with the 
Second San Diego Aqueduct on the north side of the San Diego River; 
thence southeastward along said aqueduct to its intersection with 
Mission Gorge Road.

TR02FE94.013


    8. Sweetwater River, San Diego County (Index map location H).
    T. 16 and 17 S., R. 1 W.: commencing at the intersection of the 
320-foot contour and 116o58 deg.14'' W longitude immediately north 
of the confluence of Sweetwater River and Sweetwater Reservoir; 
thence eastward along the contour to the intersection of said 
contour with State Highway 94; thence northward along said highway 
to its intersection with State Highway 54; thence northeastward 
along said highway to the San Bernardino Meridian; thence south 
approximately 1,500 feet to the intersection with the 340-foot 
contour; thence westward and southward along said contour to the 
south end of the Steele Canyon Bridge on State Highway 94; thence 
south approximately 900 feet to the 340-foot contour; thence 
southwesterly along said contour to its intersection with 
116 deg.58 deg.14'' W longitude; thence north to starting point.

[Insert Map # 9 here]

    9. Jamul-Dulzura Creeks, San Diego County (Index map location 
I).
    T. 17 and 18 S., R. 1 E.: commencing from a point approximately 
2,200 feet west of BM 515 along Otay Lakes Road, in sec. 5, T. 18 
S., R. 1 E.; thence east approximately one mile to the crossing of 
said road at a bridge over Jamul Creek, including all land within 
1,500 feet southward of Otay Lakes Road as measured perpendicularly 
from the road; thence eastward for about 2.4 mi along said road and 
including all lands within 1,500 feet northward of said road as 
measured perpendicularly from the road, and including all lands 
within 500 feet of said bridge not otherwise included above.

TR02FE94.014

    10. Tijuana River, San Diego County (Index map location J).
    T. 18 S., R. 2 W.: secs. 34, S\1/2\SE\1/4\SE\1/4\; and 35, S\1/
2\SW\1/4\, SW\1/4\SW\1/4\SE\1/4\.
    T. 19 S., R. 2 W.: secs. 1, W\1/2\SW\1/4\NW\1/4\; 2, S\1/2\NE\1/
4\NE\1/4\, NW\1/4\NE\1/4\, N\1/2\SE\1/4\NE\1/4\, N\1/2\NE\1/4\NW\1/
4\, W\1/2\NW\1/4\; 3, N\1/2\; and 4, NE\1/4\, N\1/2\NW\1/4\.

TR02FE94.015

    Primary constituent elements: riverine and floodplain habitats 
(particularly willow-dominated riparian woodland with dense 
understory vegetation maintained, in part, in a non-climax stage by 
periodic floods or other agents) and adjacent coastal sage scrub, 
chaparral, or other upland plant communities.
    Dated: October 12, 1993.
Richard N. Smith,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 94-2304 Filed 2-1-94; 8:45 am]
BILLING CODE 4310-55-P