[Federal Register Volume 64, Number 25 (Monday, February 8, 1999)]
[Rules and Regulations]
[Pages 5957-5963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2866]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC88


Endangered and Threatened Wildlife and Plants; Determination of 
Whether Designation of Critical Habitat for the Coastal California 
Gnatcatcher is Prudent

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service, have reconsidered our 
prudency finding for designating critical habitat for the coastal 
California gnatcatcher (Polioptila californica californica). We listed 
the coastal California gnatcatcher as a threatened species under the 
Endangered Species Act of 1973, as amended (Act) on March 30, 1993. At 
that time, we determined that designation of critical habitat was not 
prudent because designation would not benefit the coastal California 
gnatcatcher and would increase the degree of threat to the species. On 
May 21, 1997, the United States Court of Appeals for the Ninth Circuit 
issued an opinion that required us to issue a new decision regarding 
the prudency of designating critical habitat for the coastal California 
gnatcatcher. This notice of determination responds to that court order.

DATES: We made the finding announced in this document on January 21, 
1999.

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

FOR FURTHER INFORMATION CONTACT: Ken S. Berg, Field Supervisor, at the 
above address (telephone: 760/431-9440; facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Background

    We listed the coastal California gnatcatcher (Polioptila 
californica californica) (gnatcatcher) as a threatened species under 
the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.) on March 30, 1993 (58 FR 16742). This small, insectivorous 
songbird typically occurs in several distinctive subassociations of the 
coastal sage scrub plant community. Coastal sage scrub vegetation is 
composed of relatively low-growing, dry-season deciduous, and succulent 
plants. Characteristic plants of this community include coastal 
sagebrush (Artemisia californica), various species of sage (Salvia 
spp.), California buckwheat (Eriogonum fasciculatum), lemonadeberry 
(Rhus integrifolia), California encelia (Encelia californica), prickly 
pear and cholla cactus (Opuntia spp.), and various species of 
Haplopappus. The gnatcatcher exhibits a strong affinity to coastal sage 
scrub vegetation dominated by coastal sagebrush, although in some 
portions of its range (e.g., western Riverside County) other plant 
species may be more abundant. The species occurs below about 912 meters 
(m) (3,000 feet (ft)) in elevation. The species remains

[[Page 5958]]

threatened by habitat loss and fragmentation resulting from urban and 
agricultural development, and the synergistic effects of cowbird 
parasitism and predation (58 FR 16742).
    The precarious status of the gnatcatcher and the importance of 
habitat protection are well known to the general public and to land 
planning agencies. We are working with Federal, State, and local 
agencies and private landowners throughout the historic range of the 
gnatcatcher to implement or develop conservation plans for this species 
and the large array of other listed or sensitive species also found in 
its coastal sage scrub habitats.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and, (ii) specific areas outside the 
geographical area occupied by a species at the time it was listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and its implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
a species is determined to be endangered or threatened. According to 
our regulations (50 CFR 424.12(a)(1)), designation of critical habitat 
is not prudent when one or both of the following situations exist--(1) 
The species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    In general, critical habitat designation contributes to species 
conservation primarily by highlighting habitat areas in need of special 
management considerations or protection, and by describing the features 
within those areas that are essential to the conservation of the 
species. Critical habitat designation may provide additional protection 
under section 7 of the Act with regard to activities that are funded, 
authorized, or carried out by a Federal agency on either Federal or 
non-Federal land. Section 7(a)(2) of the Act requires Federal agencies, 
in consultation with us, to ensure that any action they carry out, 
fund, or authorize does not jeopardize the continued existence of a 
federally listed species or result in the destruction or adverse 
modification of designated critical habitat. This requirement of 
Federal agencies is the only mandatory legal consequence of a critical 
habitat designation. We refer to areas where a Federal agency may be 
involved as having a ``Federal nexus.''
    Regulations in 50 CFR part 402 define ``jeopardize the continued 
existence of'' and ``destruction or adverse modification of'' in 
similar terms. To jeopardize the continued existence of a species means 
to engage in an action ``that reasonably would be expected to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species.'' Destruction or adverse modification of habitat means 
an ``alteration that appreciably diminishes the value of critical 
habitat for both the survival and recovery of a listed species.'' 
Common to both definitions is an appreciable detrimental effect on both 
the survival and recovery of a listed species. Thus, actions that would 
adversely modify critical habitat generally also jeopardize the 
continued existence of the species.
    At the time of the listing, we concluded that designation of 
critical habitat for the gnatcatcher was not prudent because such 
designation would not benefit the species and would make the species 
more vulnerable to activities prohibited under section 9 of the Act. We 
were aware of several instances of apparently intentional habitat 
destruction that had occurred during the listing process. In addition, 
most land occupied by the gnatcatcher was in private ownership and a 
designation of critical habitat was not believed to be of benefit 
because of a lack of a Federal nexus.
    On May 21, 1997, the United States Court of Appeals for the Ninth 
Circuit (Court), issued an opinion (No. 95-56075; D.C. No. CV-93-999-
LHM) that required us to issue a new decision regarding the prudency of 
determining critical habitat for the gnatcatcher. In this opinion, the 
Court held that the ``increased threat'' criterion in the regulations 
may justify a not prudent finding only when we have weighed the 
benefits of designation against the risks of designation. Secondly, 
with respect to the ``not beneficial'' criterion explicit in the 
regulations, the Court ruled that our conclusion that designation of 
critical habitat was not prudent because it would fail to control the 
majority of land-use activities within critical habitat was 
inconsistent with Congressional intent that the imprudence exception to 
designation should apply ``only in rare circumstances.'' The Court 
noted that a substantial portion of gnatcatcher habitat would be 
subject to a future nexus sufficient to trigger section 7 consultation 
requirements regarding critical habitat. Third, the Court determined 
that our conclusion that designation of critical habitat would be less 
beneficial to the species than another type of protection (i.e., State 
of California Natural Community Conservation Planning efforts) did not 
absolve us from the requirement to designate critical habitat. The 
Court was also critical of our lack of specificity in our analysis.

Prudency Redetermination Process

    We have reevaluated our previous not prudent finding regarding 
critical habitat designation for the gnatcatcher as instructed by the 
Court. Initially, we inventoried all lands within the known range of 
the gnatcatcher containing coastal sage scrub habitats. These lands 
included coastal and inland areas--(1) that may support sage scrub or 
similar habitat within San Diego, Orange, Los Angeles, Riverside, San 
Bernardino, and Ventura counties, California, and (2) that are below 
912 m (3,000 ft) in elevation (the approximate maximum elevation 
occupied by gnatcatchers). Once we defined the study area, we 
categorized lands by ownership within each County using Geographic 
Information System (GIS) theme coverages, and estimated approximate 
acreages for each category. We used Federal and non-Federal (i.e., 
Tribal, local/State jurisdiction, and private) land ownership 
categories for the purposes of this prudency determination. We also 
considered the likelihood of a Federal nexus through land ownership, 
project funding or activity jurisdiction (Table 1).
    We considered all Federal and Tribal trust lands to have a Federal 
nexus. Because of its Tribal trust responsibilities, the Bureau of 
Indian Affairs (BIA) represents the Federal nexus on Tribal trust 
lands; the BIA does not represent a Federal nexus on Tribal fee-owned 
land. We evaluated State, local government, and private lands that 
contain gnatcatcher habitat for a potential Federal nexus. We expect 
some projects on State, local government, or private lands in Orange, 
San Diego and Ventura counties to have a Federal nexus.

[[Page 5959]]



   Table 1.--Geographic Distribution, Ownership, and Size of Areas Evaluated in the Critical Habitat Prudency Redetermination for the Coastal California
                                                                       Gnatcatcher
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                                                                                                                                     Gnatcatcher habitat
                                                                                                                                        with a Federal
                                                                    Total area within                           Gnatcatcher habitat      nexus where
                   Land ownership and county                      gnatcatcher study area  Gnatcatcher habitat   with federal nexus   critical habitat is
                                                                     hectares (acres)       hectares (acres)   hectares (acres) (b)    determined to be
                                                                                                  (a)                                  prudent hectares
                                                                                                                                           (acres)
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Federal:
  Los Angeles..................................................         186,004(459,625)       11,470(28,343)        11,470(28,343)       11,470(28,343)
  Orange.......................................................           26,948(66,590)           991(2,448)            991(2,448)           991(2,448)
  Riverside....................................................          88,072(217,631)        5,616(13,877)         5,616(13,877)        5,616(13,877)
  San Bernardino...............................................           22,890(56,562)         1,256(3,104)          1,256(3,104)         1,256(3,104)
  San Diego....................................................         178,285(440,550)       24,650(60,911)        24,650(60,911)       24,650(60,911)
  Ventura......................................................          77,287(190,980)        4,381(10,825)         4,381(10,825)        4,381(10,825)
                                                                ----------------------------------------------------------------------------------------
      Total Federal............................................       579,486(1,431,938)      48,364(119,508)       48,364(119,508)      48,364(119,508)
Non-Federal:
  Los Angeles..................................................       466,149(1,151,873)      53,058(131,108)               54(133)                    0
  Orange.......................................................         178,040(439,944)       23,572(58,247)      (d)8,428(20,826)           473(1,169)
  Riverside....................................................         380,789(940,946)      62,248(153,817)         (d)750(1,854)              83(205)
  San Bernardino...............................................         128,953(318,649)       15,697(38,789)                  (c)0                    0
  San Diego....................................................       510,191(1,260,706)     673,684(167,250)     (d)32,627(80,622)         1,095(2,706)
  Ventura......................................................         221,167(546,514)      79,070(195,385)           (d)243(600)             243(600)
                                                                ----------------------------------------------------------------------------------------
      Total Non-Federal........................................     1,885,289(4,658,632)     301,328(744,596)       42,102(104,035)         1,894(4,680)
                                                                ========================================================================================
      Grand Totals.............................................     2,464,775(6,090,570)     349,691(864,104)       90,465(223,543)      50,257(124,188)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(a)Total amount of coastal sage scrub habitats within designated category.
(b)Extent of habitat where a Federal nexus exists.
(c)There are no known proposed projects or likely future activities with an established Federal nexus on lands within category.
(d)See text for individual Federal project action areas contributing to totals; action areas in these categories may include small amounts of State and
  local lands.

    Of the approximately 2,464,775 hectares (ha) (6,090,570 acres (ac)) 
of land within the study area, 77 percent is non-Federal land and 23 
percent is Federal (Table 1). The GIS-based analysis of the study area 
landscape further revealed that only about 349,691 ha (864,104 ac) or 
14 percent of these lands support sage scrub habitat, with the majority 
of the habitat occurring on privately or federally owned lands (Table 
1). This estimate of habitat availability is more precise than our 
previous efforts and may differ with some published estimates.
    We followed existing statutes and regulations, the Court order, and 
our policy, to identify those lands for which a designation of critical 
habitat might be prudent. In general, we carried out the analytical 
steps for determining prudency sequentially--(1) we determined whether 
Federal lands were involved, (2) if lands were non-Federal, we 
determined whether a Federal nexus existed, (3) we determined whether 
any threats associated with designation as critical habitat of Federal 
lands and those non-Federal lands having a Federal nexus outweigh the 
benefits of such designation, and (4) we determined whether any threats 
associated with designation of non-Federal lands that lack a Federal 
nexus outweigh the benefits of such designation.
    The potential threats associated with designation include an 
increased likelihood of intentional acts of vandalism due to widespread 
public misunderstanding of critical habitat. The benefits of 
designating critical habitat include the section 7 consultation benefit 
and the benefit of highlighting areas needing special management 
considerations or protections. We describe several instances of 
vandalism and intentional destruction of endangered species habitat in 
the ``Prudency Finding'' section of this notice.
    In addition to determining whether designation of an area as 
critical habitat is prudent, we must also evaluate, in accordance with 
section 3(5)(A) of the Act, whether the area is essential to the 
conservation of the species and whether the area may require special 
management considerations or protection before designating the area as 
critical habitat. Section 4(b)(2) of the Act requires us to evaluate 
economic and other impacts, and exclude any area from the designation 
if the benefits of excluding the area outweigh the benefits of 
including the area. However, we can not exclude an area if the 
exclusion would result in the extinction of the species. These 
additional evaluations required to designate critical habitat are not a 
part of the prudency determination ordered by the Court, and, for the 
most part, have been deferred consistent with the current listing 
priority guidance published on May 8, 1998 (63 FR 10931).

Prudency Finding

    The only regulatory impact of a critical habitat designation is 
through the consultation provisions of section 7. Section 7 applies 
only to activities having a Federal nexus, not to activities that are 
exclusively State or private. Thus, the existence or lack of a Federal 
nexus is a key consideration in determining whether designating 
critical habitat is prudent. A Federal nexus exists when a Federal 
agency carries out, funds, or authorizes an activity or project on 
Federal or non-Federal lands. As we previously stated, the designation 
of non-Federal lands that lack a Federal nexus may not be prudent 
because the limited benefit may be outweighed by the threat of 
destruction of these areas. On the other hand, the designation of non-
Federal lands where a Federal nexus exists or may exist in the future 
could prove to be beneficial to the species. However, even for non-
Federal lands where there may be a future Federal nexus, we must weigh 
the benefits of designation as

[[Page 5960]]

critical habitat against any threat associated with designation. We 
discuss our prudency findings, arranged by land ownership, below.
    Tribal Lands. Tribal lands include Tribal fee-owned and Tribal 
trust lands. Tribal fee-owned lands are treated as private lands and 
thus have no inherent Federal nexus. However, activities on such lands 
are subject to section 7 consultation if a Federal action is involved. 
Tribal trust lands have a Federal nexus in light of the trust 
responsibility of the BIA. However, given the extremely small 
proportion of coastal sage scrub habitat on Tribal lands (2 percent of 
the 349,691 ha (864,104 ac) of total existing habitat) (Table 1), and 
because no significant gnatcatcher populations are known to occur on 
Tribal lands, we conclude that such lands are not essential to the 
conservation of the species and do not meet the definition of critical 
habitat.
    Federal Lands. Federal lands are generally those administered by 
the Department of Defense (DOD) (including the Army Corps of Engineers 
(COE), Department of Navy, Marine Corps, and Air Force), Bureau of Land 
Management (BLM), Federal Aviation Administration (FAA), Forest 
Service, National Park Service, Fish and Wildlife Service, and Bureau 
of Reclamation. For convenience, we included Tribal trust lands in the 
Federal lands category in Table 1 due to the inherent BIA nexus; 
however, for the reasons stated above in the discussion under ``Tribal 
Lands,'' we conclude that Tribal trust lands are not essential to the 
conservation of the species and do not meet the definition of critical 
habitat. Approximately 579,486 ha (1,431,938 ac) of land within the 
study area are in this Federal land category. Of this total, an 
estimated 48,363 ha (119,508 ac), or 8 percent, support sage scrub 
habitat (Table 1). We have determined that it is prudent to designate 
critical habitat for the gnatcatcher on all Federal lands (not 
including Tribal trust lands) containing coastal sage scrub within the 
defined study area. We will further evaluate these lands during our 
development of a proposed critical habitat rule. That evaluation may 
indicate that not all of such habitat is essential for the conservation 
of the species or requires special management. We may also exclude some 
of these areas from designation as critical habitat because of economic 
impacts of such designation.
    Non-Federal Lands. Non-Federal lands include lands owned by local 
and State jurisdictions and private entities. This category includes 
Tribal fee-owned lands. A Federal nexus exists on non-Federal lands 
when there is Federal authorization or funding of, or participation in, 
a project or activity. In such cases, a Federal action agency is 
required to consult with us under section 7(a)(2) of the Act if the 
proposed activity or project may affect a listed species or any 
designated critical habitat.
    Several types of activities on non-Federal lands supporting sage 
scrub habitat could potentially involve a Federal nexus. We have 
evaluated all habitat within the range of the gnatcatcher and all types 
of projects for a potential Federal nexus. For each Federal agency, we 
describe below the agency's potential involvement in activities on non-
Federal lands and identify those areas for which designation of 
critical habitat is prudent.
     The BIA may provide funding, logistical support, and 
technical assistance to Indian Tribes for activities that may involve 
Tribal fee-owned lands. In some cases these actions require the BIA to 
consult with us pursuant to section 7 of the Act. However, for the 
reasons stated above in the discussion under ``Tribal Lands,'' we 
conclude that Tribal fee-owned lands, as well as Tribal trust lands, 
are not essential to the conservation of the species and do not meet 
the definition of critical habitat.
     The Federal Highway Administration (FHWA) provides funding 
for transportation projects and approves linkages with the Federal 
highway system. These activities require section 7 consultation. Two 
regional transportation plans identify potential transportation 
alignments and alternatives with potential FHWA involvement in southern 
California. The 1998 Regional Transportation Plan authored by the 
Southern California Association of Governments addresses Los Angeles, 
Orange, Riverside, San Bernardino, and Ventura counties, while the 
Regional Transportation Plan 1996-2020 authored by the San Diego 
Association of Governments covers San Diego County. We have identified 
several projects having a Federal nexus through FHWA involvement that 
may affect gnatcatcher habitat. In Orange County, the action area of 
the Foothill Transportation Corridor, which is under the jurisdiction 
of FWHA, contains 461 ha (1,140 ac) of coastal sage scrub, and the 
action area of the State Route 133/Laguna Canyon Road Realignment 
project, which is also under the jurisdiction of FHWA, contains 
approximately 12 ha (29 ac) of habitat. In San Diego County, State 
Route 125 Project contains about 42 ha (105 ac) of habitat; State Route 
905 Project contains about 8 ha (20 ac); State Route 78 Project 
contains about 0.25 ha (0.65 ac) of habitat; and State Route 76 Project 
contains about 7 ha (17 ac). The Moorpark Specific Plan 2/
Highway 118 Extension Project, which is a Ventura County project under 
the jurisdiction of the FHWA, contains 243 ha (600 ac) of coastal sage 
scrub habitat. We conclude that designation of critical habitat in 
these areas is prudent.
     The Fish and Wildlife Service conducts internal section 7 
consultations when our actions may affect a listed species. Our 
activities on non-Federal lands include issuance of permits for 
incidental take of listed species under section 10 of the Act. Because 
the decision to apply for an incidental take permit, thereby creating a 
Federal nexus for consultation, rests solely with the potential non-
Federal permit applicant, we do not consider the section 10 permit 
process as providing a reliable future Federal nexus for activities on 
non-Federal lands.
     The COE and the Environmental Protection Agency (EPA) 
administer the Clean Water Act Section 404 permit program. Under 
Section 404 of the Clean Water Act, a Department of the Army permit is 
required for projects on non-Federal and Federal lands involving a 
discharge of dredged or fill material into waters of the United States, 
including wetlands. The COE and EPA do not generally have jurisdiction 
over upland areas where gnatcatchers are found unless upland 
development is dependent upon an activity requiring a Section 404 
permit. For this reason, Section 404 of the Clean Water Act would not 
ordinarily provide a Federal nexus for activities on non-Federal lands 
where gnatcatchers occur. However, the COE has exercised jurisdiction 
on the SilverHawk project in Riverside County which contains 83 ha (205 
ac) of coastal sage scrub. We conclude that it is prudent to designate 
these 83 ha (205 ac) of coastal sage scrub as critical habitat. We do 
not know of any other projects in gnatcatcher habitat under the 
jurisdiction of the COE.
    By delegation of authority from the Department of Defense through 
the Department of the Army, the COE also has responsibility to address 
all ordnance and explosive wastes concerns and environmental 
restoration activities at former defense sites. As a result, the COE 
has jurisdiction over the East Elliot Ordnance Removal, a project that 
would affect 243 ha (600 ac) of habitat in San Diego County. We 
conclude that it is prudent to designate these 243 ha (600 ac) of 
coastal sage scrub as critical habitat.

[[Page 5961]]

     The BLM and Forest Service occasionally exchange their 
lands for non-Federal lands. These land exchanges generally result in 
more manageable landownership configurations for these agencies. These 
agencies mostly try to acquire private inholdings within larger Federal 
holdings in exchange for isolated Federal parcels that are surrounded 
by non-Federal land. The BLM and Forest Service have already completed 
most such land exchanges in southern California, and we do not 
anticipate any future land exchange efforts that would affect the 
gnatcatcher. Occasionally, projects such as roads or utility rights-of-
way will cross both private and Forest Service or BLM property. In 
these instances, both Federal and non-Federal lands will be considered 
during the section 7 consultation process. Because private lands in the 
vicinity of Forest Service or BLM land generally do not contain 
gnatcatcher habitat, the potential of utility projects on Federal land 
also affecting gnatcatcher habitat on private land is speculative and 
likely remote.
     The Immigration and Naturalization Service (INS) conducts 
activities along the United States/Mexico border and at immigration 
check stations on major highways north of the border. Current 
anticipated projects along the border include fences and roads to 
increase interdiction of illegal immigrants. These projects are 
generally located within 400 m (0.25 mile) of the international border. 
Within this area, there are approximately 786 ha (1941 ac) of non-
Federal lands containing gnatcatcher habitat that may be affected by 
these projects. We conclude that the designation of critical habitat in 
these areas is prudent.
     The Department of Housing and Urban Development (HUD) 
conducts programs to assist private landowners in the purchase, sale, 
and development of their properties. However, these programs generally 
involve rehabilitation or redevelopment of previously disturbed areas 
that do not contain gnatcatcher habitat.
     The Federal Emergency Management Agency (FEMA) is involved 
with non-Federal lands following natural disasters and other 
emergencies such as floods, earthquakes, and other natural events. 
FEMA's involvement in the projects typically does not occur during an 
``emergency'' situation, but rather after the disaster has occurred, so 
that any impact to gnatcatcher habitat from such natural disasters 
would also likely have already occurred prior to FEMA involvement. For 
example, actions taken on private lands during a flood event, placing 
riprap for example, do not involve FEMA funds since private landowners 
are taking actions immediately. FEMA may provide financial assistance 
for the repair of culverts, roads, etc. after a disaster. In these 
cases, FEMA consults with us to avoid or minimize impacts to 
gnatcatchers. Additionally under the Hazard Mitigation Grant Program, 
FEMA funds programs, including vegetation management activities to 
reduce the likelihood of wildfires. FEMA is currently consulting with 
us on these actions. The existence of a Federal nexus from future FEMA 
disaster relief or other actions cannot be predicted and is at best 
speculative.
     The Federal Aviation Administration (FAA) oversees 
activities at existing airports and evaluates proposed airport 
expansion and new airport construction. Construction of new airports 
and expansion of existing airports have already been planned in 
southern California, and we considered these projects in the 
development of this determination. The Ramona Airport expansion project 
contains 9 ha (22 ac) of habitat. The designation of critical habitat 
on this parcel is prudent. We do not know of any other FAA projects 
proposed in gnatcatcher habitat.
    As discussed above, FHWA, FAA, INS, and COE may carry out, fund, or 
authorize projects in gnatcatcher habitat on non-Federal lands in San 
Diego, Orange, and Ventura counties. We evaluated these lands to 
determine whether a designation of critical habitat would be prudent. 
We found that a Federal nexus exists for projects covering a total of 
1,894 ha (4,680 ac), and determined that a designation of critical 
habitat would be prudent for these lands.

Approved NCCP Efforts

    Several multi-species planning efforts and habitat conservation 
planning efforts have been undertaken within the southern California 
range of the gnatcatcher to conserve the species and its coastal sage 
scrub habitat. Principal among these are State of California Natural 
Community Conservation Planning (NCCP) efforts in Orange and San Diego 
counties. NCCP plans completed and permitted to date have resulted in 
the conservation of 40,208 ha (99,310 ac) of gnatcatcher habitat.
    In southern San Diego County, the development of the NCCP Multiple 
Species Conservation Program (MSCP) has resulted in our approval of 
three southern County subarea plans under section 10(a)(1)(B) of the 
Act. These three southern subarea plans account for approximately 95 
percent of the gnatcatcher habitat in southern San Diego County. 
Approval is pending for four other subarea plans within southern San 
Diego County's MSCP. This planning effort has resulted in the 
establishment of conservation areas that collectively contain 28,844 ha 
(71,274 ac) of coastal scrub habitat within a 69,573-ha (171,917-ac) 
preserve area.
    In addition, we have approved the Orange County NCCP Central/
Coastal Plan and issued an incidental take permit under section 
10(a)(1)(B) of the Act. This planning effort has resulted in the 
conservation of 15,677 ha (38,738 ac) of reserve lands, which contain 
7,621 ha (18,831 ac) of coastal sage scrub habitat.
    We have also approved several smaller multiple species habitat 
conservation plans (HCPs) in San Diego Riverside, Los Angeles, and 
Orange counties. These include, Bennett Property, Meadowlark Estates, 
Fieldstone, and Poway Subarea Plan in San Diego County; Coyote Hills 
East and Shell Oil in Orange County; Ocean Trails in Los Angeles 
County; and Lake Mathews in Riverside County. These efforts have 
resulted in the protection of 3,743 (9,250 ac) of gnatcatcher habitat.
    The gnatcatcher habitat in the approved NCCPs in San Diego and 
Orange counties was selected for permanent preservation and 
configuration into a biologically viable interlocking system of 
reserves by the local jurisdictions with our technical assistance and 
that of the California Department of Fish and Game. The reserve system 
established under the approved NCCP plans includes the coastal sage 
scrub habitat subject to the jurisdiction of those plans that we 
consider essential to the long-term survival and recovery of the 
gnatcatcher. In addition, the plans provide for management of the 
reserve lands to protect, restore, and enhance their value as 
gnatcatcher habitat. Because the essential gnatcatcher habitat that is 
subject to the jurisdiction of the approved plans is permanently 
protected in the habitat reserves, no additional private lands covered 
by the plans warrant designation as critical habitat. In addition, 
because the gnatcatcher habitat preserved in the plan is managed for 
the benefit of the gnatcatcher as required under the plans, there are 
no ``additional management considerations or protections'' within the 
meaning of ``critical habitat'' under section 3(5)(A)(ii) of the Act 
required for those lands. Therefore, we have determined that private 
lands subject to the approved NCCPs do not meet the

[[Page 5962]]

definition of critical habitat in the Act and that designation of such 
lands would not benefit the gnatcatcher.

Private Lands Without a Federal Nexus

    We conclude that the designation of critical habitat on the 259,226 
ha (640,560 ac) of coastal sage scrub on non-Federal lands that either 
lack a Federal nexus or are covered by approved HCPs under the NCCP 
program is not prudent. Threats and acts of vandalism toward coastal 
sage scrub habitats were most acute at the time of the publication of 
the final listing for the gnatcatcher in 1993 (58 FR 16742). The 
destruction of coastal scrub habitat in apparent attempts to circumvent 
potential land use restrictions resulting from Endangered Species Act 
prohibitions continues. Our Law Enforcement Division has received 
information on six incidents of land clearing that cumulatively 
resulted in the destruction of about 243 ha (600 ac) of coastal sage 
habitat and the possible take of up to eight pairs of gnatcatchers. 
These actions involved clearing of coastal sage scrub, in some 
instances without County grading permits, in San Diego, Riverside and 
San Bernardino counties. We also have recently initiated investigation 
into activities that apparently affected two endangered species, the 
Quino checkerspot butterfly and the Delhi Sands flower-loving fly.
    As has been documented by a series of recent newspaper articles, 
some members of the public believe that--(1) critical habitat can be 
``* * *put off limits for development* * *'' (San Diego Union Tribune, 
May 22, 1997), and (2) the presence of listed species on a land parcel 
can create ``* * *a lot of uncertainty among developers* * *'' and 
complicate land sales (Riverside Press-Enterprise, January 7, 1998).
    The vast majority of private lands lack a Federal nexus that would 
invoke the section 7 prohibition against adverse modification of 
critical habitat. Also, considering the common misunderstandings about 
the effects of designation, we believe that designating such lands as 
critical habitat would increase the instances of habitat destruction 
and exacerbate threats to the gnatcatcher. Therefore, we conclude that 
the threats that would result from designating these lands as critical 
habitat outweigh the benefit that would be provided.
    We will continue to investigate all instances of coastal sage scrub 
clearing that may result in an unauthorized ``take'' of gnatcatchers in 
violation of section 9 of the Act. Also, we are continuing extensive 
outreach efforts to address public misunderstandings about the 
gnatcatcher and its habitat. We are continuing to encourage local 
jurisdictions to pursue comprehensive multi-species conservation plans 
(e.g., NCCP plans) to conserve the gnatcatcher and other sensitive 
species. Our cooperative approach is intended to ameliorate the 
circumstances that may have led private landowners to destroy coastal 
sage scrub habitat and to correct the misinformation presented by some 
media accounts.
    We acknowledge that in some cases a designation of critical habitat 
on private lands may provide some benefit to a species by highlighting 
areas where the species may occur or areas that are important to the 
species' recovery. However, as discussed above, the status of the 
gnatcatcher, its coastal sage scrub habitat requirements, and the 
location of that habitat are already well known, and this information 
is readily available. County planning agencies inform members of the 
public about sensitive resources, including the gnatcatcher and its 
habitat, that may potentially occur on their lands. For example, the 
County of San Diego informs applicants for grading permits of the 
status of gnatcatchers and may require them to survey for the birds 
prior to receiving a permit. Numerous newspaper articles have also 
appeared describing the gnatcatcher and its habitat. The plight of this 
species and coastal sage scrub habitat is well known to the public, and 
a designation of critical habitat on private lands will not appreciably 
increase landowners' knowledge of areas important for gnatcatcher 
conservation.
    We, therefore, conclude that no benefit would arise from 
designating critical habitat on private lands that do not have a 
Federal nexus. To the contrary, we believe it is likely that a 
designation of critical habitat on private lands may incite some 
members of the public and increase incidences of habitat destruction 
through acts of vandalism above current levels. Because, in this case, 
no benefit can be identified, and because of increased threats to the 
gnatcatcher and its habitat likely to result from designation, we 
conclude that designation of critical habitat on private lands that 
lack a Federal nexus is not prudent.

Summary and Conclusion

    We conclude that designation of critical habitat totaling 50,257 ha 
(124,188 ac) on lands within the United States portion of the range of 
the gnatcatcher is prudent (Table 1). This total includes all Federal 
lands within the range of the gnatcatcher (48,364 ha (119,508 ac)) and 
1,894 ha (4,680 ac) of non-Federal lands where a Federal nexus exists.
    In addition to determining whether designation of an area as 
critical habitat is prudent, we must also evaluate, in accordance with 
section 3(5)(A) of the Act, whether the area is essential to the 
conservation of the species and whether the area may require special 
management considerations or protection before designating the area as 
critical habitat. Also, section 4(b)(2) of the Act requires us to 
evaluate economic and other impacts, and exclude any area from the 
designation if the benefits of excluding the area outweigh the benefits 
of including the area, unless the exclusion would result in the 
extinction of the species. These additional determinations required to 
designate critical habitat are not a part of the prudency determination 
ordered by the Court. We are deferring these additional determinations 
consistent with the current listing priority guidance published (63 FR 
10931) described below.

Listing Priority Guidance

    We published Listing Priority Guidance for Fiscal Years 1998 and 
1999 on May 8, 1998 (63 FR 25502). The guidance clarifies the order in 
which we will process rulemakings, giving highest priority (Tier 1) to 
processing emergency rules to add species to the Lists of Endangered 
and Threatened Wildlife and Plants; second priority (Tier 2) to 
processing final determinations on proposals to add species to the 
lists, processing new listing proposals, processing administrative 
findings on petitions (to add species to the lists, delist species, or 
reclassify listed species), and processing a limited number of proposed 
and final rules to delist or reclassify species; and third priority 
(Tier 3) to processing proposed and final rules designating critical 
habitat. Upon completion of higher priority listing actions in 
accordance with the listing priority guidance, we intend to go forward 
with the critical habitat designation process for the gnatcatcher.

References Cited

Riverside Press-Enterprise. January 7, 1998. Rats! Irked developers 
frustrated by butterfly. Page 22.
San Diego Union Tribune. May 22, 1997. Court says gnatcatcher must 
have safe habitat. Page A-3.

Authors

    The primary authors of this document are Loren R. Hays, Doug 
Krofta, Art Davenport, Clark Roberts, and Jim

[[Page 5963]]

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

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 21, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-2866 Filed 2-5-99; 8:45 am]
BILLING CODE 4310-55-U