[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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