[Federal Register Volume 66, Number 32 (Thursday, February 15, 2001)]
[Proposed Rules]
[Pages 10469-10481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1835]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH82


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Polygonum hickmanii (Scotts Valley 
Polygonum) and Chorizanthe robusta var. hartwegii (Scotts Valley 
Spineflower)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat pursuant to the Endangered Species Act of 
1973, as amended (Act), for Polygonum hickmanii (Scotts Valley 
polygonum) and Chorizanthe robusta var. hartwegii (Scotts Valley 
spineflower). Approximately 125 hectares (310 acres) of land fall 
within the boundaries of the proposed critical habitat designation. 
Proposed critical habitat is located in Santa Cruz County, California. 
Critical habitat receives protection from destruction or adverse 
modification through required consultation under section 7 of the Act 
with regard to actions carried out, funded, or authorized by a Federal 
agency. Section 4 of the Act requires us to consider economic and other 
relevant impacts when specifying any particular area as critical 
habitat.
    We solicit data and comments from the public on all aspects of this 
proposal, including data on economic and other impacts of the 
designation. We may revise this proposal to incorporate or address new 
information received during the comment period.

DATES: We will accept comments until April 16, 2001. Public hearing 
requests must be received by April 2, 2001.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    You may submit written comments and information to the Field 
Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2493, Portola Road, Suite B, Ventura, California, 93003.
    You may also send comments by electronic mail (e-mail) to 
[email protected]. See the Public Comments Solicited section below for 
file format and other information about electronic filing.
    You may hand-deliver comments to our Ventura Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, 
Ventura, California 93003.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Connie Rutherford, Ventura Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, 
Suite B, Ventura, California 93003 (telephone 805/644-1766; facsimile 
805/644-3958).

SUPPLEMENTARY INFORMATION:

Background

    Polygonum hickmanii and Chorizanthe robusta var. hartwegii are 
endemic to Purisima sandstone and Santa Cruz mudstone in Scotts Valley 
in the Santa Cruz Mountains. Chorizanthe robusta var. hartwegii was 
listed as endangered on February 4, 1994 (59 FR 5499). Polygonum 
hickmanii was proposed as endangered on November 9, 2000 (65 FR 67335).
    Polygonum hickmanii is a small, erect, taprooted annual in the 
buckwheat family (Polygonaceae). It grows from 2 to 5 centimeters (cm) 
(1 to 2 inches (in.)) tall, and can be either single stemmed or 
profusely branching near the base in more mature plants. The linear-
shaped leaves are 0.5 to 3.5 cm (0.2 to 1.4 in.) long and 1 to 1.5 cm 
(0.4 to 0.6 in.) wide and tipped with a sharp point. The single white 
flowers consist of two outer tepals and three inner tepals and are 
found in the axils of the bracteal leaves. The plant flowers from late 
May to August. Seed production ranges from a few dozen in a typical 
individual to as many as two hundred in a particularly robust 
individual (R. Morgan, pers. comm. 1998). Although pollination for this 
species has not been studied, Morgan observed a sphecid wasp (family 
Sphecidae) visitation to an individual of P. hickmanii (Morgan, pers. 
comm. 1998). Other potential pollinators have not been identified at 
this time, and the degree to which P. hickmanii depends on insect 
pollinators (rather than being self-pollinated) has not been 
determined. The nearest location of a closely related species, P. 
parryi, is at Mount Hamilton, about 48 kilometers (km) (30 miles (mi)) 
inland. Polygonum hickmanii differs from P. parryi in its larger white 
flowers, longer leaves, larger anthers and achenes, and longer, 
straight stem sheath (Hinds and Morgan 1995).
    Chorizanthe robusta var. hartwegii is a low-growing herb with rose-
pink involucral margins confined to the basal portion of the teeth and 
an erect habit. The aggregate flowers (heads) are medium in size (1 to 
1.5 cm (0.4 to 0.6 in.) in diameter) and distinctly aggregate. The 
plant germinates during the winter months and flowers from April 
through June. Although pollination ecology has not been studied for 
this taxon, it is likely visited by a wide array of pollinators; 
observations of pollinators on other species of Chorizanthe that occur 
in Santa Cruz County have included leaf cutter bees (megachilids), at 
least 6 species of butterflies, flies, and sphecid wasps. Each flower 
produces one seed; depending on the vigor of individual plants, dozens, 
if not hundreds, of seeds could be produced. The importance of 
pollinator activity in seed set has been demonstrated in another 
species of Chorizanthe by the production of seed with low viability 
where pollinator access was limited (Harding Lawson Associates 2000). 
Seed dispersal is facilitated by the involucral spines, which attach 
the seed to passing animals. Chorizanthe robusta var. hartwegii is one 
of two varieties of the species C. robusta. The other variety (C. 
robusta var. robusta), known as the robust spineflower, is known from 
the coast of southern Santa Cruz and northern Monterey counties and 
also is listed as endangered.
    Polygonum hickmanii and Chorizanthe robusta var. hartwegii are 
known from two sites about one mile apart at the northern end of Scotts 
Valley in Santa Cruz County, California. The plants are found on gently 
sloping to nearly level fine-textured shallow soils over outcrops of 
Santa Cruz mudstone and Purisima sandstone (Hinds and Morgan 1995). 
Together they occur with other small annual herbs in patches within a 
more extensive annual grassland habitat. These small patches have been 
referred to as ``wildflower fields'' because they support a large 
number of native herbs, in contrast to the adjacent annual grasslands 
that support a greater number of non-native grasses and herbs. While 
the wildflower fields are underlain by shallow, well-draining soils, 
the surrounding annual grasslands are underlain by deeper soils with a 
greater water-holding capacity, and therefore more easily support the 
growth of non-native grasses and herbs.

[[Page 10470]]

The surface soil texture in the wildflower fields tends to be 
consolidated and crusty rather than loose and sandy (Biotic Resources 
Group (BRG) 1998). Elevation of the sites is from 215 to 245 meters (m) 
(700 to 800 feet (ft)) (Hinds and Morgan 1995). The climate in the city 
of Santa Cruz, 13 km (8 mi) to the south, is characterized by an 
average of 76.7 cm (30 in.) of rain per year, and an average 
temperature of 14 degrees Celsius (57 degrees Fahrenheit) per year, 
while the city of Los Gatos, 16 km (10 mi) to the north, averages 129.9 
cm (51 in.) of rain per year, and an average temperature of 15 degrees 
Celsius (58 degrees Fahrenheit) per year (Worldclimate 1998).
    Polygonum hickmanii and Chorizanthe robusta var. hartwegii are 
associated with a number of native herbs including Lasthenia 
californica (goldfields), Minuartia douglasii (sandwort), Minuartia 
californica (California sandwort), Gilia clivorum (gilia), Castilleja 
densiflora (owl's clover), Lupinus nanus (sky lupine), Brodiaea 
terrestris (brodiaea), Stylocline amphibola (Mount Diablo cottonweed), 
Trifolium grayii (Gray's clover), and Hemizonia corymbosa (coast 
tarplant). Non-native species present include Filago gallica (filago) 
and Vulpia myuros (rattail) (California Natural Diversity Data Base 
(CNDDB) 1998; Randy Morgan, biological consultant, pers. comm. 1998). 
In many cases, the habitat also supports a crust of mosses and lichens 
(Biotic Resources Group 1998).
    For purposes of this rule, a cluster of individuals of either 
Polygonum hickmanii or Chorizanthe robusta var. hartwegii will be 
referred to as a ``colony''. Because of the close proximity of many of 
the clusters to each other, it is uncertain whether clusters of each 
species biologically represent patches within a metapopulation, true 
colonies, or separate populations. The general location of the colonies 
will be referred to as a ``site''. Although clusters of P. hickmanii 
co-occur with C. robusta var. hartwegii at all sites, C. robusta var. 
hartwegii may occur without this association. Thus, of the two species, 
P. hickmanii tends to be the most restricted in distribution.
    Approximately 11 colonies of Polygonum hickmanii occur on the 2 
sites. Chorizanthe robusta var. hartwegii generally occurs at all the 
locations where Polygonum hickmanii occurs; in addition, colonies of 
Chorizanthe robusta var hartwegii occur at other locations at the 
Glenwood site and the Polo Ranch site without Polygonum hickmanii. The 
total number of colonies of Chorizanthe robusta var. hartwegii is 
difficult to count for several reasons: 1) depending on the scale at 
which colonies are mapped, a larger or smaller number of colonies may 
result, and 2) depending on the climate and other annual variations in 
habitat conditions, the extent of colonies may either shrink and 
temporarily disappear, or enlarge and merge into each other, thus 
appearing as larger but fewer colonies. Additional patches of suitable 
but unoccupied habitat for Polygonum hickmanii, Chorizanthe robusta var 
hartwegii, and other wildflower field taxa have been mapped on these 
parcels as well (Denise Duffy and Associates 1998). However, some of 
these patches, as well as those patches occupied by Chorizanthe robusta 
var hartwegii, were destroyed in 1999 during construction of Scotts 
Valley High School.
    The first site is located north of Casa Way and west of Glenwood 
Drive in northern Scotts Valley. Referred to as the Glenwood site, it 
contains five colonies of Polygonum hickmanii and a larger number of 
colonies of Chorizanthe robusta var hartwegii that occur on two 
privately owned parcels of land. Colonies of both of these taxa are 
situated within a 4-hectare (ha) (9-acre (ac) preserve on a 19-ha (48-
ac) parcel that is owned by the Scotts Valley Unified School District 
and is referred to as the ``School District'' colony (Denise Duffy and 
Associates 1998). Other colonies of both plants at the Glenwood site 
are located approximately 0.08 km (0.13 mi) to the west of the School 
District colony on a parcel of land owned by the Salvation Army (CNDDB 
1998) and are referred to as the ``Salvation Army'' colonies. 
Additional colonies of Chorizanthe robusta var hartwegii are located on 
a parcel owned by American Dream/Glenwood L.P. which is being proposed 
for development. On the west side of Glenwood Drive, colonies are 
located in proposed open space near the proposed Seacliff neighborhood; 
on the east side of Glenwood Drive, colonies are located in the 
southern portion of the parcel that is being proposed for open space 
(Impact Sciences 2000a).
    The second site is referred to as the ``Polo Ranch'' site. Located 
just east of Highway 17 and north of Navarra Road in northern Scotts 
Valley; this site is approximately 1.6 km (1 mi) east of the Salvation 
Army and School District colonies. Colonies within the Polo Ranch site 
occur on a parcel of land owned by Greystone Homes (Lyons in litt. 
1997). Six colonies of Polygonum hickmanii and a larger number of 
colonies of Chorizanthe robusta var hartwegii occur within 0.2 km (0.1 
mi) of each other on the Polo Ranch site (Lyons in litt. 1997; Impact 
Sciences 2000b).
    Both Polyonum hickmanii and Chorizanthe robusta var. hartwegii are 
threatened with extinction by habitat alteration due to secondary 
impacts of urban development occurring within close proximity. Urban 
development includes the recent construction and operation of a high 
school; installation and maintenance of water delivery pipelines, 
access roads, and water tanks; and currently existing and proposed 
housing. Over the last decade a variety of housing proposals have been 
considered for two of the parcels; active proposals currently exist for 
both of these parcels.
    The kinds of habitat alterations expected to impact Polygonum 
hickmanii and Chorizanthe robusta var. hartwegii as a result of 
development include changes in the hydrologic conditions, soil 
compaction; increased disturbance due from humans, pets, and bicycle 
traffic; the inadvertent application of herbicides and pesticides; 
dumping of yard wastes; and the introduction of non-native species. The 
proposed preserves and open space areas intended to protect P. 
hickmanii and C. robusta var. hartwegii are inadequate for maintaining 
viable populations of these species (Service in litt. 1998). Studies on 
habitat fragmentation and preserves established in urbanized settings 
have shown that these preserves gradually become destabilized from 
external forces (i.e., changes in the hydrologic conditions, soil 
compaction, etc.), resulting in preserves that are no longer able to 
support the species that they were established to protect (Kelly and 
Rotenberry 1993).
    The chance of random extinction for both Polygonum hickmanii and 
Chorizanthe robusta var. hartwegii is also increased due to the small 
numbers of individuals and limited area occupied by these species 
(Shaffer 1981). A random environmental event (e.g., fire) or human 
disturbance potentially could destroy all colonies occurring on a 
parcel, thus reducing the advantages of redundant populations and 
diminishing the likelihood of long-term persistence.

Previous Federal Action

    On May 16, 1990, we received a petition from Steve McCabe and 
Randall Morgan of the Santa Cruz Chapter of the California Native Plant 
Society to list Chorizanthe robusta var. hartwegii as endangered. Based 
on a 90-day finding that the petition presented substantial

[[Page 10471]]

information indicating that the requested action may be warranted (55 
FR 46080), we initiated a status review of this taxon. On October 24, 
1991 (56 FR 55107), we published a proposal to list C. robusta var. 
hartwegii, as an endangered species. On February 4, 1994, we published 
a final rule that listed C. robusta var. hartwegii, inclusive of C. 
robusta var. robusta, as endangered (59 FR 5499). Proposed designation 
of critical habitat for these taxa was believed prudent but not 
determinable at the time of listing. A Recovery Plan covering two 
insect species and four plant species from the Santa Cruz Mountains, 
including C. robusta var. hartwegii, was published in 1998 (Service 
1998).
    We first became aware of Polygonum hickmanii in 1992 during the 
course of proposing to list Chorizanthe robusta var. hartwegii. At that 
time, however, a name for the taxon had not formally been published, 
and therefore it could not be considered for Federal listing. Once the 
name, Polygonum hickmanii, was published by Hinds and Morgan (1995), we 
reviewed information in our existing files, in the California Natural 
Diversity Data Base, and new information on proposed projects being 
submitted to us for our review, and determined that sufficient 
information existed to believe that listing might be warranted. 
Polygonum hickmanii was included in the list of candidate species 
published in the Federal Register on October 25, 1999 (64 FR 57534). A 
proposal to list P. hickmanii as endangered was published on November 
9, 2000 (65 FR 67335). At the time of the proposed listing, we 
determined that critical habitat for P. hickmanii was prudent, but 
deferred proposing critical habitat designation until a proposal to 
designate critical habitat could be developed for both P. hickmanii and 
C. robusta var. hartwegii because the two taxa share the same ecology 
and geographic location. Due to the ecological and geographic isolation 
of the two varieties of Chorizanthe, C. robusta var. robusta and C. 
robusta var. hartwegii, we are proposing critical habitat for C. 
robusta var. robusta separately but concurrently with this proposal.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that 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. At the time Chorizanthe 
robusta var. hartwegii was listed, we found that designation of 
critical habitat for the species was prudent but not determinable, and 
that designation of critical habitat would occur once we had gathered 
the necessary data.
    On June 30, 1999, our failure to designate critical habitat for 
Chorizanthe robusta (including C. robusta var. hartwegii as well as C. 
robusta var. robusta) and three other species within the time period 
mandated by 16 U.S.C. 1533(b)(6)(C)(ii) was challenged in Center for 
Biological Diversity v. Babbitt (Case No. C99-3202 SC). On August 30, 
2000, the U.S. District Court for the Northern District of California 
(Court) directed us to publish a proposed critical habitat designation 
within 60 days of the Court's order, and a final critical habitat 
designation no later than 120 days after the proposed designation is 
published. On October 16, 2000, the Court granted the government's 
request for a stay of this order. Subsequently, by a stipulated 
settlement agreement signed by the parties on November 20, 2000, the 
Service agreed to proposed critical habitat for the Scotts Valley 
spineflower by January 15, 2001.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. In our regulations at 50 CFR 402.02, 
we define destruction or adverse modification as ``* * * the 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.'' Aside from the 
added protection that may be provided under section 7, the Act does not 
provide other forms of protection to lands designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation would not afford any 
additional protections under the Act against such activities.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or under 
short court-ordered deadlines, we will often not have sufficient 
information to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what, at the time of designation, we know to be critical habitat.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation. Within the 
geographic area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), which

[[Page 10472]]

provide essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by states and counties, 
scientific status surveys and studies, and biological assessments or 
other unpublished materials (i.e., gray literature).
    Habitat is often dynamic, and populations may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the prohibitions of section 9, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12) we used the best scientific information available to determine 
areas that contain the physical and biological features that are 
essential for the survival and recovery of Polygonum hickmanii and 
Chorizanthe robusta var. hartwegii. This information included 
information from the California Natural Diversity Data Base (CNDDB 
2000), soil survey maps (Soil Conservation Service 1978, 1979), recent 
biological surveys and reports, our recovery plan for these species, 
additional information provided by interested parties, and discussions 
with botanical experts. We also conducted multiple site visits to the 
two locations that are being proposed for designation.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features (primary 
constituent elements) that are essential to the conservation of the 
species and that may require special management considerations or 
protection. These include, but are not limited to--space for individual 
and population growth, and for normal behavior; food, water, air, 
light, minerals or other nutritional or physiological requirements; 
cover or shelter; sites for breeding, reproduction, or rearing of 
offspring, germination, or seed dispersal; and habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distributions of a species.
    The long-term probability of the survival and recovery of 
Chorizanthe robusta var. hartwegii and Polygonum hickmanii is dependent 
upon the protection of existing population sites, and the maintenance 
of ecologic functions within these sites, including connectivity 
between colonies within close geographic proximity to facilitate 
pollinator activity and seed dispersal mechanisms, and the ability to 
maintain disturbance factors (for example, fire disturbance) that 
maintain the openness of plant cover that the species depend on. In 
addition, the small range of these two taxa makes them vulnerable to 
edge effects from adjacent human activities, including disturbance from 
trampling and recreational use, the introduction and spread of non-
native species, and the application of herbicides, pesticides, and 
other contaminants (Conservation Biology Institute 2000).
    The primary constituent elements of critical habitat for Polygonum 
hickmanii and Chorizanthe robusta var. hartwegii are:
    (1) Thin soils that have developed over outcrops of Santa Cruz 
mudstone and Purisima sandstone;
    (2) ``Wildflower field'' habitat that has developed on these thin-
soiled sites;
    (3) A grassland plant community that supports the ``wildflower 
field'' habitat, which is stable over time and in which nonnative 
species do not exist or are at a density that has little or no adverse 
effect on resources available for growth and reproduction of Polygonum 
hickmanii and Chorizanthe robusta var. hartwegii;
    (4) Sites that allow each population to survive catastrophic events 
and recolonize adjacent suitable microhabitat sites,
    (5) Pollinator activity between existing colonies of Polygonum 
hickmanii and Chorizanthe robusta var. hartwegii;
    (6) Physical processes, such as occasional soil disturbance, that 
support natural dune dynamics along coastal areas;
    (7) Seed dispersal mechanisms between existing colonies and other 
potentially suitable sites; and
    (8) Sufficient integrity of the watershed above habitat for 
Polygonum hickmanii and Chorizanthe robusta var. hartwegii to maintain 
edaphic and hydrologic conditions that provide the seasonally wet 
substrate for growth and reproduction of Polygonum hickmanii and 
Chorizanthe robusta var. hartwegii.

Criteria Used To Identify Critical Habitat

    In our delineation of the critical habitat units, we selected areas 
to provide for the conservation of Polygonum hickmanii and Chorizanthe 
robusta var. hartwegii at the only two sites where they are known to 
occur. The two species are currently growing on less than 0.4 ha (1 ac) 
of land; however, habitat is not restricted solely to the area actually 
occupied by the species. It must include an area that is large enough 
to maintain the ecological functions upon which the species

[[Page 10473]]

depends (e.g., the hydrologic and edaphic conditions). We believe it is 
important to designate the area currently occupied by the two taxa that 
is of sufficient size to maintain landscape scale processes and to 
minimize the secondary impacts resulting from human occupancy and human 
activities occurring in adjacent areas.
    The units were mapped with a degree of precision commensurate with 
the available information, the size of the unit, and the time allotted 
to complete this proposed rule. We anticipate that in the time between 
the proposed rule and the final rule, and based upon the additional 
information received during the public comment period, that the 
boundaries of the two mapping units will be refined. The proposed 
critical habitat units were delineated by creating data layers in a 
geographic information system (GIS) format of the areas of known 
occurrences of Polygonum hickmanii and Chorizanthe robusta var. 
hartwegii using information from the California Natural Diversity Data 
Base (CNDDB 2000) and the other information sources listed above. These 
data layers were created on a base of USGS 7.5' quadrangle maps 
obtained from the State of California's Stephen P. Teale Data Center. 
Because the areas within proposed critical habitat boundaries are 
portions of the San Augustin Spanish Land Grant, they have not been 
surveyed according to the State Plan Coordinate System. Therefore, 
instead of defining proposed critical habitat boundaries using a grid 
of township, range, and section, we defined the boundaries for the 
proposed critical habitat units using known landmarks and roads.
    In selecting areas of proposed critical habitat, we made an effort 
to avoid developed areas, such as housing developments, which are 
unlikely to contribute to the conservation of Polygonum hickmanii and 
Chorizanthe robusta var. hartwegii. However, we did not map critical 
habitat in sufficient detail to exclude all developed areas, or other 
lands unlikely to contain the primary constituent elements essential 
for the conservation of P. hickmanii and C. robusta var. hartwegii. 
Areas within the boundaries of the mapped units, such as buildings, 
roads, parking lots, and other paved areas, lawns, and other urban 
landscaped areas will not contain any of the primary constituent 
elements. Federal actions limited to these areas, therefore would not 
trigger a section 7 consultation, unless they affect the species and/or 
primary constituent elements in adjacent critical habitat.

Proposed Critical Habitat Designation

    The proposed critical habitat areas described below constitute our 
best assessment at this time of the areas needed for the species' 
conservation. Critical habitat is being proposed for Polygonum 
hickmanii and Chorizanthe robusta var. hartwegii at the only two sites 
where they are known to occur. We are not proposing any critical 
habitat units that do not contain the plants of both species. In 
accordance with section 3(5)(C) of the Act, we are proposing to 
designate critical habitat in the entire geographical area which can be 
occupied by the species as we find that the areas included in the 
proposed designation are essential to the conservation of the two 
species. The areas we are proposing provide the essential life cycle 
needs of the species and provide some or all of the habitat components 
essential for the conservation (primary constituent elements) of C. 
robusta var. hartwegii and P. hickmanii. The two areas being proposed 
as critical habitat are both within the city limits of Scotts Valley in 
Santa Cruz County, California, and include the grassland habitat that 
contains the smaller ``wildflower field'' patches. Given the threats to 
the habitat of these species discussed above, we believe that these 
areas may require special management considerations or protection.
    Table 1. Approximate proposed critical habitat area (ha (ac)) by 
Proposed Critical Habitat Unit and land ownership. Estimates reflect 
the total area within critical habitat unit boundaries.

------------------------------------------------------------------------
              Unit                   Local agency           Private
------------------------------------------------------------------------
Unit 1.........................  9 ha (22 ac).......  81 ha (200 ac)
Unit 2.........................  0 ha (0 ac)........  35 ha (86 ac)
------------------------------------------------------------------------

    Because we consider maintaining hydrologic and edaphic conditions 
in these grasslands so important, the proposed critical habitat area 
extends outward to the following limits-(1) upslope from the 
occurrences of P. hickmanii and C. robusta var. hartwegii to include 
the upper limit of the immediate watershed; (2) downslope from the 
occurrences of P. hickmanii and C. robusta var. hartwegii to the point 
at which grassland habitat is replaced by forest habitats (oak forest, 
redwood forest, or mixed conifer-hardwood forest); and (3) to the 
boundary of existing development.
    The following general areas are proposed as critical habitat (see 
legal descriptions for exact critical habitat boundaries).
Unit 1: Glenwood Site
    Unit 1 consists of approximately 90 ha (222 acres) to the west of 
Glenwood Drive and north and northwest of Casa Way, in the City of 
Scotts Valley, including land owned and managed by the Salvation Army, 
land owned and managed by the Scotts Valley High School District as a 
Preserve, but excluding the rest of the High School, and to the east of 
Glenwood Drive, encompassing the parcel known as the Glenwood 
Development. All of the land proposed within this unit is privately 
owned.
Unit 2: Polo Ranch Site
    The Polo Ranch site consists of approximately 35 ha (86 ac) to the 
east of Carbonera Creek on the east side of Highway 17 and north and 
northeast of Navarra Drive, in the City of Scotts Valley, known as the 
Polo Ranch, both in the County of Santa Cruz, California. All of the 
land being proposed for critical habitat designation is privately 
owned.

Effects of Critical Habitat Designation

    Section 7(a) of the Act requires Federal agencies to ensure that 
actions they fund, authorize, or carry out do not jeopardize the 
continued existence of a listed species or destroy or adversely modify 
its critical habitat. Destruction or adverse modification of critical 
habitat is defined by our regulations 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 (50 CFR 402.02). 
Individuals, organizations, States, local governments, and other non-
Federal entities are affected by the designation of critical habitat 
only if their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding.
    Section 7 (a) of the Act means that Federal agencies must evaluate 
their actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
402. If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency must enter into consultation 
with us. If, at the conclusion of consultation, we issue a

[[Page 10474]]

biological opinion concluding that project is likely to result in the 
destruction or adverse modification of critical habitat, we also 
provide reasonable and prudent alternatives to the project, if any are 
identifiable. Reasonable and prudent alternatives are defined at 50 CFR 
402.02 as alternative actions identified during consultation that can 
be implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
destruction or adverse modification of critical habitat.
    Section 7(a)(4) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory. We may issue a formal conference report 
if requested by a Federal agency. Formal conference reports on proposed 
critical habitat contain a biological opinion that is prepared 
according to 50 CFR 402.14, as if critical habitat were designated. We 
may adopt the formal conference report as the biological opinion when 
the critical habitat is designated, if no significant new information 
or changes in the action alter the content of the opinion (see 50 CFR 
402.10 (d)).
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request consultation or 
conferencing with us on actions for which formal consultation has been 
completed if those actions may affect designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Activities on lands being proposed as critical habitat for the 
Polygonum hickmanii and Chorizanthe robusta var. hartwegii or 
activities that may indirectly affect such lands and that are conducted 
by a Federal agency, funded by a Federal agency or that require a 
permit from a Federal agency will be subject to the section 7 
consultation process. Federal actions not affecting critical habitat, 
as well as actions on non-Federal lands that are not federally funded 
or permitted, will not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat would 
be those that alter the primary constituent elements to the extent that 
the value of critical habitat for both the survival and recovery of 
Polygonum hickmanii or Chorizanthe robusta var. hartwegii is 
appreciably reduced. We note that such activities may also jeopardize 
the continued existence of the species. Activities that, when carried 
out, funded, or authorized by a Federal agency, may directly or 
indirectly destroy or adversely modify critical habitat include, but 
are not limited to:
    (1) Activities that alter watershed characteristics in ways that 
would appreciably alter or reduce the quality or quantity of surface 
and subsurface flow of water needed to maintain natural grassland 
communities and the ``wildflower field'' habitat. Such activities 
adverse to Polygonum hickmanii and Chorizanthe robusta var. hartwegii 
could include, but are not limited to, vegetation manipulation such as 
chaining or harvesting timber in the watershed upslope from P. 
hickmanii and C. robusta var. hartwegii; maintaining an unnatural fire 
regime either through fire suppression or prescribed fires that are too 
frequent or poorly-timed; residential and commercial development, 
including road building and golf course installations; agricultural 
activities, including orchardry, viticulture, row crops, and livestock 
grazing;
    (2) Activities that appreciably degrade or destroy native grassland 
communities, including but not limited to livestock grazing, clearing, 
discing, introducing or encouraging the spread of nonnative species, 
and heavy recreational use.
    Designation of critical habitat could affect the following agencies 
and/or actions: development on private lands requiring permits from 
Federal agencies, such as 404 permits from the U.S. Army Corps of 
Engineers, or permits from Housing and Urban Development, or 
authorization of Federal grants or loans. Such activities would be 
subject to the section 7 consultation process. Where federally listed 
wildlife species occur on private lands proposed for development, any 
habitat conservation plans submitted by the applicant to secure a 
permit to take according to section 10(a)(1)(B) of the Act would be 
subject to the section 7 consultation process. The Ohlone tiger beetle 
(Cicindela ohlone), a species that is proposed for listing under the 
Act, occurs in close proximity to P. hickmanii and C. robusta var. 
hartwegii at their western site on Salvation Army and Scotts Valley 
High School property.
    If you have questions regarding whether specific activities will 
likely constitute adverse modification of critical habitat, contact the 
Field Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES 
section). Requests for copies of the regulations on listed wildlife and 
inquiries about prohibitions and permits may be addressed to the U.S. 
Fish and Wildlife Service, Portland Regional Office, 911 NE 11th 
Avenue, Portland, Oregon 97232-4181 (503/231-6131, FAX 503/231-6243).

Relationship To Habitat Conservation Plans

    Currently, there are no HCPs that include Polygonum hickmanii and 
Chorizanthe robusta var. hartwegii as covered species. However, we 
believe that in most instances the benefits of excluding habitat 
conservation plans (HCPs) from critical habitat designations will 
outweigh the benefits of including them. In the event that future HCPs 
covering Polygonum hickmanii and Chorizanthe robusta var. hartwegii are 
developed within the boundaries of designated critical habitat, we will 
work with applicants to ensure that the HCPs provide for protection and 
management of habitat areas essential for the conservation of these 
species. This will be accomplished by either directing development and 
habitat modification to nonessential areas, or appropriately modifying 
activities within essential habitat areas so that such activities will 
not adversely modify the primary constituent elements. The HCP 
development process would provide an opportunity for more intensive 
data collection and analysis regarding the use of particular habitat 
areas by Polygonum hickmanii and Chorizanthe robusta var. hartwegii. 
The process would also enable us to conduct detailed evaluations of the 
importance of such lands to the long-term survival of the species in 
the context of constructing a biologically configured system of 
interlinked habitat blocks. We will also provide technical assistance 
and work closely with applicants throughout the development of any 
future HCPs to identify lands essential for the long-term conservation 
of Polygonum hickmanii and Chorizanthe

[[Page 10475]]

robusta var. hartwegii and appropriate management for those lands. The 
take minimization and mitigation measures provided under such HCPs 
would be expected to protect the essential habitat lands proposed as 
critical habitat in this rule.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species. We will conduct 
an analysis of the economic impacts of designating these areas as 
critical habitat prior to a final determination. When completed, we 
will announce the availability of the draft economic analysis with a 
notice in the Federal Register, and we will open a comment period at 
that time.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of 
Polygonum hickmanii and Chorizanthe robusta var. hartwegii habitat, and 
what habitat is essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any economic or other impacts resulting from the proposed 
designation of critical habitat, in particular, any impacts on small 
entities or families;
    (5) Economic and other values associated with designating critical 
habitat for Polygonum hickmanii and Chorizanthe robusta var. hartwegii 
such as those derived from non-consumptive uses (e.g., hiking, camping, 
bird-watching, enhanced watershed protection, improved air quality, 
increased soil retention, ``existence values,'' and reductions in 
administrative costs); and
    (6) The methods we might use, under section 4(b)(2) of the Act, in 
determining if the benefits of excluding an area from critical habitat 
outweigh the benefits of specifying the area as critical habitat.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods. You may mail 
comments to the Assistant Field Supervisor, Ventura Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, 
Ventura, California 93003. You may also comment via the Internet to 
[email protected]. Please submit Internet comments as an ASCII file 
avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: 1018-AH82 and your name and return address 
in your Internet message.'' If you do not receive a confirmation from 
the system that we have received your Internet message, contact us 
directly by calling our Ventura Fish and Wildlife Office at phone 
number 805-644-1766. Please note that the Internet address 
``[email protected]'' will be closed out at the termination of the 
public comment period. Finally, you may hand-deliver comments to our 
Ventura office at 2493 Portola Road, Suite B, Ventura, California. Our 
practice is to make comments, including names and home addresses of 
respondents, available for public review during regular business hours. 
Individual respondents may request that we withhold their home address 
from the rulemaking record, which we will honor to the extent allowable 
by law. There also may be circumstances in which we would withhold from 
the rulemaking record a respondent's identity, as allowable by law. If 
you wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will solicit the expert opinions of three appropriate and 
independent specialists regarding this proposed rule. The purpose of 
such review is to ensure listing decisions are based on scientifically 
sound data, assumptions, and analyses. We will send these peer 
reviewers copies of this proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed listing and 
designation of critical habitat.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final determination may differ from 
this proposal.

Public Hearings

    The Act provides for one or more public hearing on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and be addressed to the Field Supervisor (see 
ADDRESSES section). We will schedule public hearings on this proposal, 
if any are requested, and announce the dates, times, and places of 
those hearings in the Federal Register and local newspapers at least 15 
days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following--(1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the notice in the ``Supplementary Information'' section 
of the preamble helpful in understanding the notice? What else could we 
do to make this proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to the office identified in the ADDRESSES 
section at the beginning of this document.

[[Page 10476]]

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB). We are preparing a draft analysis of this proposed 
action, which will be available for public comment, to determine the 
economic consequences of designating the specific areas as critical 
habitat. The availability of the draft economic analysis will be 
announced in the Federal Register so that it is available for public 
review and comments.
    (a) While we will prepare an economic analysis to assist us in 
considering whether areas should be excluded pursuant to section 4 of 
the Act, we do not believe this rule will have an annual economic 
effect of $100 million or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. 
Therefore, we do not believe a cost benefit and economic analysis 
pursuant to EO 12866 is required.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored, authorized, or permitted by a 
Federal agency (see Table 2 below). Section 7 requires Federal agencies 
to ensure that they do not jeopardize the continued existence of these 
species. Based upon our experience with these species and their needs, 
we conclude that any Federal action or authorized action that could 
potentially cause an adverse modification of the proposed critical 
habitat would currently be considered as ``jeopardy'' under the Act in 
areas occupied by the species. Accordingly, the designation of 
currently occupied areas as critical habitat does not have any 
incremental impacts on what actions may or may not be conducted by 
Federal agencies or non-Federal persons that receive Federal 
authorization or funding. The designation of areas as critical habitat 
where section 7 consultations would not have occurred but for the 
critical habitat designation may have impacts on what actions may or 
may not be conducted by Federal agencies or non-Federal persons who 
receive Federal authorization or funding that are not attributable to 
the species listing. We will evaluate any impact through our economic 
analysis (under section 4 of the Act; see Economic Analysis section of 
this rule). Non-Federal persons that do not have a Federal 
``sponsorship'' of their actions are not restricted by the designation 
of critical habitat.

  Table 2.--Impacts of Polygonum hickmanii and Chorizanthe robusta var.
           hartwegii Listing and Critical Habitat Designation
------------------------------------------------------------------------
                                                         Additional
                                   Activities            activities
  Categories of activities    potentially affected  potentially affected
                               by species listing    by critical habitat
                                      only             designation \1\
------------------------------------------------------------------------
Federal Activities            Activities conducted  Activities by these
 Potentially Affected \2\.     by the Army Corps     Federal Agencies in
                               of Engineers, the     designated areas
                               Department of         where section 7
                               Housing and Urban     consultations would
                               Development, and      not have occurred
                               any other Federal     but for the
                               Agencies.             critical habitat
                                                     designation.
Private or other non-Federal  Activities that       Funding,
 Activities Potentially        require a Federal     authorization, or
 Affected \3\.                 action (permit,       permitting actions
                               authorization, or     by Federal Agencies
                               funding) and may      in designated areas
                               remove or destroy     where section 7
                               habitat for           consultations would
                               Polygonum hickmanii   not have occurred
                               and Chorizanthe       but for the
                               robusta var.          critical habitat
                               hartwegii by          designation.
                               mechanical,
                               chemical, or other
                               means or
                               appreciably
                               decrease habitat
                               value or quality
                               through indirect
                               effects (e.g., edge
                               effects, invasion
                               of exotic plants or
                               animals,
                               fragmentation of
                               habitat).
------------------------------------------------------------------------
\1\ This column represents activities potentially affected by the
  critical habitat designation in addition to those activities
  potentially affected by listing the species.
\2\ Activities initiated by a Federal agency.
\3\ Activities initiated by a private or other non-Federal entity that
  may need Federal authorization or funding.

    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions not jeopardize the continued existence of 
Chorizanthe robusta var. hartwegii since its listing in 1994. The 
prohibition against adverse modification of critical habitat would not 
be expected to impose any additional restrictions to those that 
currently exist in the proposed critical habitat on currently occupied 
lands. We will evaluate any impact of designating areas where section 7 
consultations would not have occurred but for the critical habitat 
designation through our economic analysis. Because of the potential for 
impacts on other Federal agency activities, we will continue to review 
this proposed action for any inconsistencies with other Federal agency 
actions.
    (c) This proposed rule, if made final, will not materially affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. Federal agencies are currently 
required to ensure that their activities do not jeopardize the 
continued existence of a listed species, and, as discussed above, we do 
not anticipate that the adverse modification prohibition, resulting 
from critical habitat designation, will have any incremental effects in 
areas of occupied habitat.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Act.

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

    In the economic analysis (required under section 4 of the Act), we 
will determine whether designation of critical habitat will have a 
significant effect on a substantial number of small entities. As 
discussed under Regulatory Planning and Review above, this rule is not 
expected to result in any restrictions in addition to those currently 
in existence for areas where section 7 consultations would have 
occurred as result of the species being listed under the Act. We will 
also evaluate whether designation includes any areas where section 7 
consultations would occur only as result of the critical habitat 
designation, and in such cases determine if it will significantly 
affect a substantial number of small entities. As

[[Page 10477]]

indicated on Table 1 (see Proposed Critical Habitat Designation 
section), we designated property owned by local governments and private 
property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (2) Development on private lands requiring permits from other 
Federal agencies such as Housing and Urban Development;
    (3) Authorization of Federal grants or loans.
    Potentially some of these activities sponsored by Federal agencies 
within the proposed critical habitat areas are carried out by small 
entities (as defined by the Regulatory Flexibility Act) through 
contract, grant, permit, or other Federal authorization. As discussed 
above, these actions are currently required to comply with the listing 
protections of the Act, and the designation of critical habitat is not 
anticipated to have any additional effects on these activities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current, applicable 
restrictions of the Act remain in effect, and this rule will have no 
additional restrictions.

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

    In the economic analysis, we will determine whether designation of 
critical habitat will cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. As discussed above, we anticipate that the designation of 
critical habitat will not have any additional effects on these 
activities in areas where section 7 consultations would occur 
regardless of the critical habitat designation. We will evaluate any 
impact of designating areas where section 7 consultations would not 
have occurred but for the critical habitat designation through our 
economic analysis.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
August 25, 2000 et seq.):
    (a) We believe this rule will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. Small governments will be affected only to the extent that 
any programs having Federal funds, permits, or other authorized 
activities must ensure that their actions will not adversely affect the 
critical habitat. However, as discussed above, these actions are 
currently subject to equivalent restrictions through the listing 
protections of the species, and no further restrictions are anticipated 
to result from critical habitat designation of occupied areas. In our 
economic analysis, we will evaluate any impact of designating areas 
where section 7 consultations would not have occurred but for the 
critical habitat designation.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year; that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. The rule will not increase or 
decrease current restrictions on private property concerning these 
plant species. We do not anticipate that property values will be 
affected by the critical habitat designations. Landowners in areas that 
are included in the designated critical habitat will continue to have 
opportunity to utilize their property in ways consistent with State law 
and with the continued survival of the plant species.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. As discussed above, the designation of critical habitat in 
areas currently occupied by Polygonum hickmanii and Chorizanthe robusta 
var. hartwegii would have little incremental impact on State and local 
governments and their activities. The designations may have some 
benefit to these governments in that the areas essential to the 
conservation of these species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the survival of the 
species are identified. While this definition and identification does 
not alter where and what federally sponsored activities may occur, it 
may assist these local governments in long range planning rather than 
waiting for case-by-case section 7 consultation to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We designate critical habitat 
in accordance with the provisions of the Endangered Species Act. The 
rule uses standard property descriptions and identifies the primary 
constituent elements within the designated areas to assist the public 
in understanding the habitat needs of Polygonum hickmanii and 
Chorizanthe robusta var. hartwegii.

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

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act

    We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 as amended need not be prepared in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act. A notice outlining our reason for this determination was published 
in the Federal Register on October 25, 1983 (48 FR 49244). This 
proposed rule does not constitute a major Federal action significantly 
affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951) and the Department of the Interior's manual 
at 512 DM 2, we readily acknowledge our responsibility to communicate 
meaningfully with federally recognized Tribes on a Government-to-
Government basis. The proposed designation of

[[Page 10478]]

critical habitat for Polygonum hickmanii and Chorizanthe robusta var. 
hartwegii does not contain any Tribal lands or lands that we have 
identified as impacting Tribal trust resources.

References Cited

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

Author

    The primary author of this proposed rule is Constance Rutherford, 
Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 
Portola Road, Suite B, Ventura, California 93003 (805/644-1766).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

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

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

    2. In Sec. 17.12(h) as proposed to be amended at 65 FR 67343, 
November 9, 2000, revise the entry for Polygonum hickmanii and remove 
the entry for Chorizanthe robusta var. hartwegii (incl. vars. robusta & 
hartwegii) and add the following entry in alphabetical order under 
``FLOWERING PLANTS'' to the List of Endangered and Threatened Plants to 
read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species
------------------------------------------------------    Historic range        Family name          Status      When listed    Critical       Special
         Scientific name              Common name                                                                                habitat        rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Chorizanthe robusta var.          Scotts Valley        U.S.A. (CA)........  Polygonaceae         E              ............     17.96(a)            NA
 hartwegii.                        Spineflower.                              Buckwheat.
 
                   *                  *                  *                  *                  *                  *                  *
Polygonum hickmanii.............  Scotts Valley        U.S.A. (CA)........  Polygonaceae         E                 17.96(a)            NA
                                   Polygonum.                                Buckwheat.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec. 17.96, as proposed to be amended at 65 FR 66865, 
November 7, 2000, add paragraph (a)(2) to read as follows:


Sec. 17.96  Critical habitat--plants.

    (a) * * *
    (2) California.
    (i) Maps and critical habitat unit descriptions. The following 
paragraphs contain the legal descriptions of the critical habitat units 
designated for multiple plant species in the State of California. 
Critical habitat does not include existing features and structures, 
such as buildings, roads, aqueducts, railroads, airports, other paved 
areas, lawns, and other urban landscaped areas not containing one or 
more of the primary constituent elements described for the species in 
paragraph (a)(2)(ii)(A) of this section. Therefore, these features or 
structures are not included in the critical habitat designation.
    (A) Polygonum hickmanii, Scotts Valley polygonum and Chorizanthe 
robusta var. hartwegii, Critical habitat includes the grasslands and 
other native plant communities upslope from them identified on the maps 
below and adjacent areas out to the beginning of existing development 
and downslope out to other plant communities, including oak woodland, 
redwood forest, and mixed conifer-hardwood forest. Critical habitat 
units are depicted for Santa Cruz County, California, on the maps 
below.

Unit 1

    Santa Cruz County, California. From USGS 7.5' quadrangle map 
Felton, California. Mt. Diablo Meridian, California. Because this area 
was part of the San Augustin Spanish Land Grant, it has not been 
surveyed according to the State Plan Coordinate System. The outer 
perimeter of this critical habitat unit is bounded by the following: 
beginning at a point west of Glenwood Drive and north of Casa Way at 
the southeastern corner of the Scotts Valley High School Preserve; 
proceeding west along the southern boundary of the Preserve until 
reaching the southwest corner of the Preserve; proceeding south to the 
southern boundary of the Salvation Army property; proceeding west along 
the southern boundary of the Salvation Army property until the point at 
which the grassland community gives way to the oak woodland community; 
then following the treeline in a generally northern direction, skirting 
around the west side of ``cupcake hill'' and ``teacup hill''; 
proceeding to the pint at which treeline intersects with the ridgeline 
on the north side of ``teacup hill'', proceeding north-northeasterly 
along the ridgeline, essentially paralleling the eastern boundary of 
the Salvation Army property; proceeding to the summit of the subsequent 
rock outcrop; proceeding east-southeasterly to Glenwood Drive, 
essentially following the treeline downslope; proceeding north along 
Glenwood Drive to Canham Road; proceeding 0.3 km (0.2 mi) east on 
Canham Road; then proceeding south for approx. 0.3 km (0.2 mi), then 
veering southeasterly and heading toward the summit near the northern 
terminus of Tabor Drive; proceeding south along the western edge of the 
existing homesites on the west side of Tabor Drive until reaching the 
northern boundary of Vine Hill School; proceeding west along the 
northern boundary of Vine Hill School until reaching the northeast 
corner of Siltanen Park; proceeding south for approx. 0.2 km (0.1 mi), 
approaching the 90 degree bend in Vine Hill Road; proceeding west for 
approx. 0.2 km (0.1 mi) to Glenwood Drive; and proceeding west across 
Glenwood Drive for approx. 0.08 km (0.05 mi) to the southwest corner of 
the Scotts Valley High School Preserve. Inside of this boundary, the 
following is excluded from critical habitat: approximately 16 ha (40 
acres) where the Scotts Valley High School is

[[Page 10479]]

situated, excepting the Scotts Valley High School Preserve; and the 
existing homesites between Glenwood Drive and the eastern boundary of 
the Scotts Valley High School Preserve.

Unit 2

    Santa Cruz County, California. From USGS 7.5' quadrangle map 
Laurel, California. Because this area was part of the San Augustin 
Spanish Land Grant, it has not been surveyed according to the State 
Plan Coordinate System. The outer perimeter of this critical habitat 
unit is bounded by the following: beginning at Sucinto Drive; 
proceeding directly west to the closest point on Carbonera Creek; 
proceeding north-northeasterly along Carbonera Creek to the point where 
Carbonera Creek crosses under Highway 17; proceeding east, then 
slightly east-southeasterly for approx. 0.6 km (0.4 mi) following the 
ridgeline until reaching the summit of a hill that is 310 m (1,020 ft) 
in elevation; proceeding southeasterly for approx. 0.08 km (0.05 mi) to 
another hill that is 310 m (1,020 ft) in elevation; proceeding south 
along the ridgeline for approx. 0.2 km (0.1 mi) to another hill that is 
320 m (1,040 ft) in elevation; proceeding south-southeasterly along the 
ridgeline for approx. 0.5 km (0.3 mi) to a hill that is approx. 305 m 
(1,000 ft) in elevation; proceeding west-northwesterly for approx. 0.2 
km (0.1 mi); proceeding generally west along the northern edge of the 
existing homesites along Navarra Drive, to Sucinto Drive.
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[GRAPHIC] [TIFF OMITTED] TP15FE01.000


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[[Page 10481]]

    (ii) California plants--Constituent elements.
    (A) Flowering plants.
    Family Polygonaceae: Polygonum hickmanii (Scotts Valley polygonum) 
and Chorizanthe robusta var. hartwegii (Scotts Valley spineflower).
    Units 1 and 2, identified in the legal descriptions in paragraph 
(a)(2)(i)(A) of this section, constitute critical habitat for Polygonum 
hickmanii and Chorizanthe robusta var. hartwegii. Within these areas, 
the primary constituent elements are the habitat components that 
provide: (1) Thin soils that have developed over outcrops of Santa Cruz 
mudstone and Purisima sandstone; (2) ``Wildflower field'' habitat that 
has developed on these thin-soiled sites; (3) A grassland plant 
community that supports the ``wildflower field'' habitat, which is 
stable over time and in which nonnative species do not exist or are at 
a density that has little or no adverse effect on resources available 
for growth and reproduction of Polygonum hickmanii and Chorizanthe 
robusta var. hartwegii; (4) Sites that allow each population to survive 
catastrophic events and recolonize adjacent suitable microhabitat 
sites; (5) Pollinator activity between existing colonies of Polygonum 
hickmanii and Chorizanthe robusta var. hartwegii; (6) Physical 
processes, such as occasional soil disturbance, that support natural 
dune dynamics along coastal areas; (7) Seed dispersal mechanisms 
between existing colonies and other potentially suitable sites; and (8) 
Sufficient integrity of the watershed above habitat for Polygonum 
hickmanii and Chorizanthe robusta var. hartwegii to maintain edaphic 
and hydrologic conditions that provide the seasonally wet substrate for 
growth and reproduction of Polygonum hickmanii and Chorizanthe robusta 
var. hartwegii.

    Dated: January 16, 2001.
Kenneth L. Smith,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-1835 Filed 2-14-01; 8:45 am]
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