[Federal Register Volume 66, Number 32 (Thursday, February 15, 2001)]
[Proposed Rules]
[Pages 10419-10439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1837]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH83


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Chorizanthe robusta var. robusta 
(Robust Spineflower)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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[[Page 10420]]

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 Chorizanthe robusta var. robusta (robust 
spineflower). Approximately 660 hectares (1,635 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 and our approaches for handling any future habitat 
conservation plans. 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

    Chorizanthe robusta var. robusta, also known as robust spineflower 
and Aptos spineflower, is endemic to sandy soils in coastal areas in 
southern Santa Cruz and northern Monterey Counties. In California, the 
spineflower genus (Chorizanthe) in the buckwheat family (Polygonaceae) 
comprises species of wiry annual herbs that inhabit dry sandy soils, 
both along the coast and inland. Because of the patchy and limited 
distribution of such soils, many species of Chorizanthe tend to be 
highly localized in their distribution.
    Like other spineflowers, Chorizanthe robusta var. robusta is 
branched from the base and subtended by a rosette of basal leaves. The 
overall appearance of C. r. var. robusta is that of a low-growing herb 
that is soft-hairy and grayish or reddish in color. The plant has an 
erect to spreading or prostrate habit, with large individuals reaching 
50 centimeters (cm) (20 inches (in.)) or more in diameter. This taxon 
is distinguished by white (rarely pinkish) scarious (translucent) 
margins on the lobes of the involucre (circle or collection of modified 
leaves surrounding a flower cluster) or head that subtend the white- to 
rose-colored flowers. The aggregate of flowers (heads) tend to be 1.5 
to 2.0 cm (0.6 to 0.8 in.) across in diameter and distinctly aggregate. 
Chorizanthe robusta var. robusta is one of two varieties of the species 
Chorizanthe robusta. The other variety (Chorizanthe robusta var. 
hartwegii), known as Scotts Valley spineflower, is restricted to the 
Scotts Valley area in the Santa Cruz Mountains. The range of 
Chorizanthe robusta var. robusta partially overlaps with Chorizanthe 
pungens var. pungens (Monterey spineflower), another closely related 
taxon in the Pungentes section of the genus, in southern Santa Cruz 
County. Chorizanthe pungens var. pungens is a threatened species and 
Chorizanthe robusta var. robusta is an endangered species; for a 
detailed description of these related taxa, see the Draft Recovery Plan 
for the Robust Spineflower (Service 2000) and references within this 
plan. We are proposing critical habitat for Chorizanthe pungens var. 
pungens and Chorizanthe robusta var. hartwegii separately but 
concurrently with this proposal.
    Chorizanthe robusta var. robusta is a short-lived annual species. 
It germinates during the winter months and flowers from April through 
June; although pollination ecology has not been studied for this taxon, 
pollinators observed include leaf cutter bees (megachilids), at least 6 
species of butterflies, flies, and sphecid wasps (Randy Morgan, 
biologist, Soquel, California, pers. comm. 2000). Each flower produces 
one seed; depending on the vigor of the individual plant, dozens, if 
not hundred of seeds could be produced. The importance of pollinator 
activity in seed set has been demonstrated by the production of seed 
with low viability where pollinator access was limited (Harding Lawson 
Associates 2000). Seed is collectable through August. The plants turn a 
rusty hue as they dry through the summer months, eventually shattering 
during the fall. Seed dispersal is facilitated by the involucral 
spines, which attach the seed to passing animals. While animal vectors 
most likely facilitate dispersal between colonies and populations, the 
prevailing coastal winds undoubtedly play a part in scattering seed 
within colonies and populations.
    The locations where Chorizanthe robusta var. robusta occurs are 
subject to a mild maritime climate, where fog helps keep summer 
temperatures cool and winter temperatures relatively warm, and provides 
moisture in addition to the normal winter rains. Chorizanthe robusta 
var. robusta is currently known from a total of seven sites. Two sites 
are located on active coastal dunes, while the other five sites are 
located inland from the immediate coast in sandy openings within scrub, 
maritime chaparral, or oak woodland habitats. All of these habitat 
types include microhabitat characteristics that are favored by C. r. 
var. robusta. First, all sites are on sandy soils; whether the origin 
of the soils are from active dunes or interior fossil dunes is 
apparently unimportant. Second, these sites are relatively open and 
free of other vegetation; sandy soils tend to be nutrient-poor, which 
limits the abundance of other herbaceous species that can grow on them. 
However, if these soils have been enriched, either through the 
accumulation of organic matter or importation of other soils, these 
sandy soils may support more abundant herbaceous vegetation which may 
then compete with C. r. var. robusta. Management of the herb cover, 
either through grazing, mowing or fire, may allow the spineflower to 
persist. In scrub and chaparral communities, C. r. var. robusta does 
not occur under dense stands, but will occur between more widely spaced 
shrubs.
    According to information included in the California Natural 
Diversity Data Base (CNDDB), Chorizanthe robusta var. robusta once 
ranged from Alameda County, on the eastern side of San Francisco Bay, 
south to northern

[[Page 10421]]

Monterey County--a range of 160 kilometers (100 miles). The identity of 
the Alameda collections, however, is still unresolved; Reveal and 
Hardham (1989) noted that these collections may be more closely related 
to other spineflowers in the Pungentes section of the genus, but that 
resolution is unlikely since the Alameda population was last collected 
in 1948. Other historic collections were made from Colma in San Mateo 
County, Los Gatos and San Jose in Santa Clara County, and several 
locations in Santa Cruz and Monterey counties.
    Other collections of putative Chorizanthe robusta var. robusta have 
been made from northern Monterey County and from one location near 
Soledad. Barbara Ertter (1990, in litt. 1997) has suggested that these 
collections may form a separate morphological ``phase,'' whose ultimate 
taxonomic affinities lay either with Chorizanthe pungens var. pungens 
or Chorizanthe robusta var. robusta. For purposes of this rule, these 
collections are recognized as belonging to C. r. var. robusta.
    The current distribution of Chorizanthe robusta var. robusta is 
restricted to coastal and near-coastal sites in southern Santa Cruz 
County and northern Monterey County, ranging from Pogonip Park in the 
city of Santa Cruz, southeast to coastal dunes between Marina and 
Seaside that were formerly part of Fort Ord. With the discovery of two 
new populations in the year 2000, a total of seven populations are now 
known to exist. There is a high likelihood that other populations will 
be discovered in the future.
    At Pogonip Park, two colonies occur on sandy soils derived from the 
Santa Margarita sandstone formation; one colony is growing in sandy 
openings within a mixed forest community (CNDDB 2000; S. Baron, in 
litt. 1999a). Within the city of Santa Cruz, near where Highway 1 
crosses Carbonera Creek, (referred to as the Branciforte site) a 
population occurs in a field that supports grassland species, including 
Avena barbata (wild oats), Vulpia sp. (vulpia), Lupinus sp. (sky 
lupine), Eschscholzia californica (California poppy), Conyza sp. 
(telegraph weed), Navarettia atractyloides (navaretia), and Erodium sp. 
(filaree) (R. Morgan, pers. comm. 2000). At the Aptos site, Chorizanthe 
robusta var. robusta occurs in an opening within maritime chaparral on 
inland marine sand deposit (CNDDB 2000). At the Freedom site, C. r. 
var. robusta occurs in a grassy opening within maritime chaparral and 
oak woodland (Dean Taylor, Jepson Herbarium, Berkeley, CA, in litt. 
2000). At the Buena Vista site, C. r. var. robusta occurs on sandy 
soils in openings within oak forest and maritime chaparral (S. Baron, 
in litt. 1999b). The Buena Vista site also supports the endangered 
Santa Cruz long-toed salamander (Ambystoma californiense).
    At Sunset State Beach, Chorizanthe robusta var. robusta is found at 
the base of backdunes in openings of coastal scrub, including 
Eriophyllum staechadifolium (seaside woolly sunflower), Artemisia 
pycnocephala (coastal sagewort), Ericameria ericoides (mock heather), 
and Baccharis pilularis (coyote bush) (CNDDB 2000). Chorizanthe pungens 
var. pungens grows in a band parallel to the C. r. var. robusta, in the 
foredunes along the beach (CNDDB 2000). In 1992, a population of C. r. 
var. robusta was discovered on the coastal dunes between Marina and 
Seaside, in the course of surveys performed in preparation for the 
transfer of Department of Defense lands formerly known as Fort Ord to 
the California Department of Parks and Recreation; this same stretch of 
dunes also supports the threatened C. p. var. pungens and the 
threatened western snowy plover (Charadrius alexandrinus nivosus) (U.S. 
Army Corps of Engineers (ACOE) 1997). The distribution of suitable 
habitat on coastal dunes is subject to dynamic shifts caused by 
patterns of dune mobilization, stabilization, and successional trends 
in coastal dune scrub that increase in cover over time. Individual 
colonies of C. r. var. robusta, found in gaps between stands of scrub, 
shift in distribution and size over time.
    Portions of the coastal dune, coastal scrub, grassland, chaparral, 
and oak woodland communities that support Chorizanthe robusta var. 
robusta have been eliminated or altered by recreational use, conversion 
to agriculture, and urban development. Dune communities have also been 
altered in composition by the introduction of non-native species, 
especially Carpobrotus spp. (sea-fig or iceplant) and Ammophila 
arenaria (European beachgrass), in an attempt to stabilize shifting 
sands. In the last decade, significant efforts have been made to 
restore native dune communities, including the elimination of these 
non-native species.

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 (Scotts Valley 
spineflower) as endangered. Based on a 90-day finding that the petition 
presented substantial information indicating that the requested action 
may be warranted (55 FR 46080), we initiated a status review of this 
taxon. During that time we also reviewed the status of Chorizanthe 
robusta var. robusta. We proposed endangered status for the C. r. var. 
robusta on October 24, 1991 (56 FR 55107). The final rule, published on 
February 4, 1994, (59 FR 5499) listed C. robusta, inclusive of var. 
robusta and var. hartwegii, as endangered.
    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 was listed, inclusive of var. robusta and var. hartwegii, we 
found that designation of critical habitat for Chorizanthe robusta, 
inclusive of var. robusta and var. hartwegii, 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, inclusive of var. robusta and var. hartwegii, 
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, we agreed to propose critical habitat for 
Chorizanthe robusta var. robusta by January 15, 2001. Because the two 
varieties of Chorizanthe robusta are geographically and ecologically 
separated, proposed critical habitat designations have been developed 
separately. This proposed rule addresses critical habitat for 
Chorizanthe robusta

[[Page 10422]]

var. robusta. A proposed critical habitat designation for Chorizanthe 
robusta var. hartwegii (Scotts Valley spineflower) is being proposed 
concurrently.

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 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 Chorizanthe robusta var. 
robusta. This information included information from the California 
Natural Diversity Data Base (CNDDB 2000), soil survey maps (Soil 
Conservation Service 1979), recent biological surveys and reports, our 
draft recovery plan for this species, additional information provided 
by interested parties, and discussions with botanical experts. We also 
conducted site visits, either cursory or more extensive, at five of the 
seven locations (Pogonip, Freedom, Buena Vista, Sunset

[[Page 10423]]

State Beach, and dunes at former Fort Ord).
    Each of the critical habitat units includes areas that are 
unoccupied by Chorizanthe robusta var. robusta. Determining the 
specific areas that this taxon occupies is difficult for several 
reasons: (1) The distribution of Chorizanthe robusta var. robusta 
appears to be more closely tied to the presence of sandy soils than to 
specific plant communities; the plant communities may undergo changes 
over time, which, due to the degree of cover that is provided by that 
vegetation type, may either favor the presence of Chorizanthe robusta 
var. robusta or not; (2) the way the current distribution of 
Chorizanthe robusta var. robusta is mapped can be variable, depending 
on the scale at which patches of individuals are recorded (e.g. many 
small patches versus one large patch); and (3) depending on the climate 
and other annual variations in habitat conditions, the extent of the 
distributions may either shrink and temporarily disappear, or, if there 
is a residual seedbank present, enlarge and cover a more extensive 
area. Therefore, patches of unoccupied habitat are interspersed with 
patches of occupied habitat; the inclusion of unoccupied habitat in our 
critical habitat units reflects the dynamic nature of the habitat and 
the life history characteristics of this taxon.

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.
    Little is known about the specific physical and biological 
requirements of Chorizanthe robusta var. robusta beyond that described 
in the Background section of this proposed rule. Based on the best 
available information at this time, the primary constituent elements of 
critical habitat for C. r. var. robusta are:
    (1) sandy soils associated with active coastal dunes and inland 
sites with sandy soils;
    (2) plant communities that support associated species, including 
coastal dune, coastal scrub, grassland, maritime chaparral, and oak 
woodland communities, and have a structure such that there are openings 
between the dominant elements (e.g. scrub, shrub, oak trees, clumps of 
herbaceous vegetation);
    (3) plant communities that contain no or little cover by nonnative 
species which would compete for resources available for growth and 
reproduction of Chorizanthe robusta var. robusta;
    (4) Pollinator activity between existing colonies of Chorizanthe 
robusta var. robusta;
    (5) Physical processes, such as occasional soil disturbance, that 
support natural dune dynamics along coastal areas; and
    (6) Seed dispersal mechanisms between existing colonies and other 
potentially suitable sites.
    We selected critical habitat areas to provide for the conservation 
of Chorizanthe robusta var. robusta, at the two coastal sites and five 
inland sites where it is known to occur. Historic locations for which 
there are no recent records of occupancy (within the last 25 years) 
were not proposed for designation. At a number of these sites, 
including Alameda in Alameda County, Colma in San Mateo County, and Los 
Gatos and San Jose in Santa Clara County, the plant has not been seen 
for approximately 100 years; this, combined with the consideration that 
these locations have been urbanized, leads us to conclude that a 
critical habitat designation would be inappropriate for these sites.
    We considered proposing critical habitat in two areas where 
Chorizanthe robusta var. robusta has been documented within the last 25 
years, but not within the last few years. The first is at Manresa State 
Beach, just seaward from the community of La Selva Beach in Santa Cruz 
County. Chorizanthe robusta var. robusta was observed near the entrance 
to the Beach in 1979, but it has not been seen since then and may be 
extirpated (CNDDB 2000). However, Manresa State Beach is being proposed 
as critical habitat for Chorizanthe pungens var. pungens. Should that 
final critical habitat designation include Manresa State Beach, the 
designation may afford benefits to C. r. var. robusta through increased 
awareness of the importance of this habitat, particularly if the C. r. 
var. robusta is found to still persist at this site.
    The second area where Chorizanthe robusta var. robusta has been 
documented within the last 25 years is an area north of the community 
of Soquel in Santa Cruz County, and bounded by Paul Sweet Road to the 
west, Rodeo Gulch Road to the east, and as far north as Mountain View 
Road. Collections from this area were made in 1936, 1960, and 1977; 
although this area has undergone some scattered development, much of 
the area remains rural, and populations of C. r. var. robusta may 
persist in this area. However, due to the size of this area and our 
lack of information needed to delineate boundaries more specifically, 
we are not proposing critical habitat in this area at this time.
    We do not believe that critical habitat designation, in this 
proposed rule, will be sufficient to conserve Chorizanthe robusta var. 
robusta, a species in danger of extinction due to the precariously few 
sites where it is still extant. The draft recovery plan for C. r. var. 
robusta (Service 2000) proposes as a recovery task ``the 
reestablishment of populations within the historic range of the species 
if appropriate habitat can be located''. The task of locating 
appropriate habitat, which would entail developing a predictive model 
based on habitat characteristics (similar to, but more detailed than, 
the constituent elements described in this proposed rule), followed by 
field surveys and coordination with other agencies, has not yet been 
initiated. Once these data have been gathered and the recovery plan is 
finalized, we may revisit critical habitat designation for this 
species, if appropriate.
    The long-term probability of the survival and recovery of 
Chorizanthe robusta var. robusta is dependent to a great extent upon 
the protection of existing population sites, and of maintaining 
ecologic functions within these sites, including connectivity between 
sites within close geographic proximity to facilitate pollinator 
activity and seed dispersal mechanisms, and the ability to maintain 
disturbance factors (for example dune dynamics at the coastal sites, 
and fire disturbance at inland site) that maintain the openness of 
vegetative cover upon which the species depends. Threats to the habitat 
of Chorizanthe robusta var. robusta include: residential development, 
recreational use, and the introduction of non-native species (February 
4, 1994; 59 FR 5499). The areas we are proposing to designate as 
critical habitat provide some or all of the habitat components 
essential for the conservation of C. r.

[[Page 10424]]

var. robusta. Given the species' need for an open plant community 
structure and the risk of non-native species, we believe that these 
areas may require special management considerations or protection.
    In our delineation of the critical habitat units, we believed it 
was important to designate all the known areas where Chorizanthe 
robusta var. robusta occurs. When possible, areas that were in close 
geographic proximity were included in the same unit to emphasize the 
need to maintain connectivity between different populations. We also 
included habitat for C. r. var. robusta adjacent to and contiguous to 
areas of known occurrences to maintain landscape scale processes. Each 
mapping unit contains habitat that is occupied by C. r. var. robusta; 
none of the mapping units are comprised entirely of unoccupied habitat. 
Some units were mapped with a greater precision that others, based on 
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 certain 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 Chorizanthe robusta var. robusta, using 
information from the California Natural Diversity Data Base (CNDDB 
2000), recent biological surveys and reports, our draft recovery plan 
for this species, and discussions with botanical experts. 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. We defined 
the boundaries for the proposed critical habitat units using a 
combination of (1) Public Land Survey (PLS) coordinates of township, 
range, and section; (2) known landmarks and roads; and (3) a protracted 
PLS grid system used to infill grid coordinates within Spanish land 
grant areas where actual PLS does not exist.
    In selecting areas of proposed critical habitat, we made an effort 
to avoid developed areas, such as housing developments, that are 
unlikely to contribute to the conservation of Chorizanthe robusta var. 
robusta. However, we did not map critical habitat in sufficient detail 
to exclude all developed areas, or other lands unlikely to contain the 
primary constituent elements essential for the conservation of C. r. 
var. robusta. Areas within the boundaries of the mapped units, such as 
buildings, roads, parking lots, railroads, airport runways and other 
paved areas, lawns, and other urban landscaped areas will not contain 
one or more 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 conservation 
and recovery of the Chorizanthe robusta var. robusta. Critical habitat 
being proposed for C. r. var. robusta includes seven units that 
currently sustain the species. This proposed critical habitat is 
essential for the conservation of the species because the geographic 
range that C. r. var. robusta occupies has been reduced to so few sites 
that the species is in danger of extinction (56 FR 55107). The areas 
being proposed as critical habitat are either along the coast (Sunset 
State Beach and the dunes at former Fort Ord), or are at inland sites 
ranging from Pogonip Park southeast to the Buena Vista property in 
southern Santa Cruz County, and include the appropriate dune, scrub, 
maritime chaparral, or oak woodland habitat that include the sandy 
openings which support Chorizanthe robusta var. robusta.
    A brief description of each critical habitat unit is given below:

Unit A: Pogonip Unit

    Unit A consists of sandy openings within mixed forest habitat 
within Pogonip Park in the city of Santa Cruz. Of the 166-ha (411-acre) 
unit, 100 ha (248 ac) are owned and managed by the city; a portion of 
the remaining 66 adjacent hectares (163 ac) are owned by the University 
of California, and the remainder are privately owned.

Unit B: Branciforte Unit

    Unit B consists of an old field/grassland unit within the city 
limits of Santa Cruz. The 5 ha (11-ac) unit is privately owned.

Unit C: Aptos Unit

    Unit C consists of sandy openings within maritime chaparral. The 
32-ha (78-ac) unit is comprised entirely of private lands.

Unit D: Freedom Unit

    Unit D consists of grasslands and sandy areas in openings within 
maritime chaparral and oak woodland. This 3.8-ha (9.5-ac) unit is 
comprised of local agency lands (Aptos High School District) and 
private lands.

Unit E: Buena Vista Unit

    Unit E consists of grasslands within maritime chaparral and oak 
woodland on the Buena Vista parcel. The 75-ha (185-ac) unit is 
comprised entirely of private lands. The Service has prepared a 
proposal to allow addition of the Buena Vista parcel into the Ellicott 
Slough National Wildlife Refuge (Service 1998b); however, its future 
disposition is uncertain.

Unit F: Sunset Unit

    Unit F consists of coastal dune habitat, and is identical to 
critical habitat that is being proposed for the Chorizanthe pungens 
var. pungens. All of this 53-ha (132-ac) unit is within Sunset State 
Beach.

Unit G: Marina Unit

    Unit G consists of coastal dune habitat on the dunes at former Fort 
Ord, and is south of Marina State Beach and north of Del Monte. All 
this 326-ha (804-ac) unit consists of former Fort Ord lands that are 
being transferred to the California State Parks system.
    The approximate areas of proposed critical habitat by land 
ownership are shown in Table 5. Lands proposed are under private, City, 
and State jurisdiction, with Federal lands including lands managed by 
the DOD at former Fort Ord.

    Table 5.--Approximate Areas, Given in Hectares (ha) and Acres (ac) \1\, of Proposed Critical Habitat for Chorizanthe robusta var. robusta By Land
                                                                       Ownership.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      City and other local
             Unit name                     State lands            Private lands          jurisdictions          Federal lands              Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
A. Pogonip.........................  20 ha (50 ac).........  45 ha (115 ac)........  100 ha (250 ac)......  .....................  165 ha (410 ac)
B. Branciforte.....................  ......................  5 ha (10 ac)..........  .....................  .....................  5 ha (10 ac)
C. Aptos...........................  ......................  30 ha (80 ac).........  .....................  .....................  30 ha (80 ac)

[[Page 10425]]

 
D. Freedom.........................  ......................  2 ha (6 ac)...........  2 ha (4 ac)..........  .....................  4 ha (10 ac)
E. Buena Vista.....................  ......................  75 ha (185 ac)........  .....................  .....................  75 ha (185 ac)
F. Sunset..........................  55 ha (130 ac)........  ......................  .....................  .....................  55 ha (130 ac)
G. Marina..........................  ......................  ......................  .....................  325 ha (805 ac)......  325 ha (805 ac)
      Total........................  75 ha (180 ac)........  157 ha (396 ac).......  102 ha (254 ac)......  325 ha (805 ac)......  659 ha (1,635 ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Approximate acres have been converted to hectares (1 ha = 2.47 ac). Based on the level of imprecision of mapping of each unit, hectares and acres
  greater than 10 have been rounded to the nearest 5; hectares and acres less than or equal to 10 have been rounded to the nearest whole number. Totals
  are sums of units.

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 
part 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 
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 
Chorizanthe robusta var. robusta 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 
Chorizanthe robusta var. robusta 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 appreciably degrade or destroy native dune, 
scrub, maritime chaparral, and oak woodland communities, including but 
not limited to inappropriately managed 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 Army Corps of Engineers 
or permits from Housing and Urban Development, military activities of 
the Department of Defense on their lands or lands under their 
jurisdiction, the release of authorization of release of biological 
control agents by the Department of Agriculture, regulation by the 
Environmental Protection Agency of activities affecting point source 
pollution discharges into waters of the U.S., authorization of Federal 
grants or loans, and land acquisition by the Service's Refuges 
Division. These

[[Page 10426]]

actions 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. Several other 
species that are listed under the Act occur in the same general areas 
as Chorizanthe robusta var. robusta. Chorizanthe pungens var. pungens 
occurs in close proximity to Chorizanthe robusta var. robusta at Sunset 
State Beach and the dunes at former Fort Ord; sand gilia (Gilia 
tenuiflora ssp. arenaria) occurs at Sunset State Beach and the dunes at 
former Fort Ord; western snowy plover occurs at Sunset State Beach and 
the dunes at former Fort Ord; and the Santa Cruz long-toed salamander 
(Ambystoma macrodactylum croceum) occurs on the Buena Vista property.
    We have prepared a proposal to allow addition of the Buena Vista 
parcel into the Ellicott Slough National Wildlife Refuge (Service 
1998). At this time, the parcel remains in private ownership and its 
future disposition is uncertain. However, should the parcel be acquired 
by the Service in the future, this action would be subject to the 
section 7 consultation process.
    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 Chorizanthe robusta var. 
robusta as a 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 C. r. var. 
robusta 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 this 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 C. r. var. robusta. 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 C. r. var. robusta 
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 concerned. 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 
Chorizanthe robusta var. robusta 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 Chorizanthe robusta var. robusta 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-AH83] 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

[[Page 10427]]

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.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order (EO) 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 the 
species. Based upon our experience with this species and its 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'' in their actions are not restricted by the designation 
of critical habitat.

    Table 2.--Impacts of Chorizanthe robusta var. robusta 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

[[Page 10428]]

 
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
                               Chorizanthe robusta   not have occurred
                               var. robusta by       but for the
                               mechanical,           critical habitat
                               chemical, or other    designation
                               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. robusta 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 the 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 Endangered Species 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 a 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 a result of the critical habitat 
designation, and in such cases determine if it will significantly 
affect a substantial number of small entities. As indicated on Table 1 
(see ``Proposed Critical Habitat Designation'' section), we have 
proposed to designate property owned by Federal, State, and County 
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) Military activities of the U.S. Department of Defense (Navy and 
Army) on their lands or lands under their jurisdiction;
    (4) The release or authorization of release of biological control 
agents by the U.S. Department of Agriculture;
    (5) Regulation of activities affecting point source pollution 
discharges into waters of the United States by the Environmental 
Protection Agency under section 402 of the Clean Water Act.;
    (6) Authorization of Federal grants or loans; and
    (7) The potential acquisition of the Buena Vista parcel by the 
Service's Refuges Division. 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 in 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 should occur 
regardless of the critical habitat designation. We will evaluate 
through our economic analysis any impact of designating areas where 
section 7 consultations would not have occurred but for the critical 
habitat designation.

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

[[Page 10429]]

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 this 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 Chorizanthe robusta var. robusta 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 this 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 Chorizanthe robusta var. robusta.

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 need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the Endangered Species Act, as 
amended. A notice outlining our reason for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244). 
This 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 critical habitat for 
Chorizanthe robusta var. robusta 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 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), remove the entry for Chorizanthe robusta 
(incl. vars. robusta and hartwegii) and add the following, 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. robusta  Robust Spineflower.  U.S.A. (CA)........  Polygonaceae--Buckw  T                               17.96(b)            NA
                                                                             heat.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 10430]]

    3. In Sec. 17.96, as proposed to be amended at 65 FR 66865, 
November 7, 2000, amend paragraph (b) by adding an entry for 
Chorizanthe robusta var. robusta in alphabetical order under 
Polygonaceae to read as follows:


Sec. 17.96  Critical habitat--plants.

* * * * *
    (b) Single-species critical habitat--Flowering plants.
    Family Polygonaceae: Chorizanthe robusta var. robusta (robust 
spineflower)
    (1) Critical habitat units are depicted for Santa Cruz and Monterey 
counties, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Chorizanthe robusta var. robusta are the habitat components that 
provide:
    (i) Sandy soils associated with active coastal dunes, coastal 
bluffs with a deposition of windblown sand, inland sites with sandy 
soils, and interior floodplain dunes;
    (ii) Plant communities that support associated species, including 
coastal dune, coastal scrub, grassland, maritime chaparral, oak 
woodland, and interior floodplain dune communities, and have a 
structure such that there are openings between the dominant elements 
(e.g, scrub, shrub, oak trees, clumps of herbaceous vegetation);
    (iii) Plant communities that contain no or little cover by 
nonnative species which would compete for resources available for 
growth and reproduction of Chorizanthe robusta var. robusta;
    (iv) Pollinator activity between existing colonies of Chorizanthe 
robusta var. robusta;
    (v) Physical processes, such as occasional soil disturbance, that 
support natural dune dynamics along coastal areas; and
    (vi) Seed dispersal mechanisms between existing colonies and other 
potentially suitable sites.
    (3) 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.

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    Map Unit A (Pogonip): Santa Cruz County, California. From USGS 7.5' 
quadrangle map Santa Cruz, California. The following lands within the 
Canada del Rincon en El Rio San Lorenzo de Santa Cruz Land Grant: T. 11 
S., R. 2 W., S.E.\1/4\ of S.W.\1/2\ and S.\1/2\ of S.E.\1/4\, Mount 
Diablo Principal Meridian, sec. 2 (protracted); T. 11 S., R. 2 W., 
N.E.\1/4\ of N.W.\1/4\ and N.E.\1/4\, Mt. Diablo Principal Meridian, 
sec. 11 (protracted); W.\1/2\ of N.W.\1/4\, Mt. Diablo Principal 
Meridian, sec. 12 (protracted); bounded on the north by State Highway 
9.
    Map Unit B (Branciforte). Santa Cruz County, California. From USGS 
7.5' quadrangle map Santa Cruz, California. Lands within: T. 11 S., R. 
1 W., Mt. Diablo Principal Meridian, sec. 7; bounded on the west by 
Branciforte Creek, on the south by Highway 101, on the east by Market 
Street and Isbel Drive, and on the north by an east-west trending line 
connecting the terminus of Lee Street (west side of Branciforte Creek) 
to Isbel Drive.

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    Map Unit C (Aptos). Santa Cruz County, California. Santa Cruz 
County, California. From USGS 7.5' quadrangle map Soquel, California. 
The following lands within the Aptos Land Grant: T. 11 S., R. 1 E., 
S\1/2\ of the N.E.\1/4\, Mt. Diablo Principal Meridian, sec. 8 
(protracted).
    Map Unit D (Freedom). Santa Cruz County, California. From USGS 7.5' 
quadrangle map Watsonville West, California. The following lands within 
the Languna de los Calabasas and Aptos Land Grants: T. 11 S., R. 1 E., 
N.E.\1/4\ of S.W.\1/4\ of N.E.\1/4\, Mt. Diablo Principal Meridian, 
sec. 16 (protracted).

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    Map Unit E (Buena Vista). Santa Cruz County, California. From USGS 
7.5' quadrangle map Watsonville West, California. The following lands 
within the San Andreas Land Grant: T. 11 S., R. 1 E., N.W.\1/4\ of 
S.W.\1/4\, and N.W.\1/4\ of N.W.\1/4\, and W.\1/2\ of N.E. \1/4\, Mt. 
Diablo Principal Meridian, sec. 35 (protracted).
    Map Unit F (Sunset). Santa Cruz County, California. From USGS 7.5' 
quadrangle map Watsonville West, California. Lands within: T.12 S., R.1 
E., Mt. Diablo Principal Meridian, secs. 14 and 23; bounded at the N. 
by Sunset State Beach at Monte Vista Way, N.W. along Monte Vista Way to 
Shell Road; S.E. 2.33 km (1.45 mi) along Shell Road, W. at the point at 
which Shell Road veers E. and then W. to mean high water, N.W. along 
mean high water 2.17 km (1.35 mi) to a point perpendicular to the 
boundary of Sunset State Beach; proceeding N.E. to point of beginning.

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    Map Unit G (Marina). Monterey County, California. From USGS 7.5' 
quadrangle maps Marina and Seaside, California. The following lands 
within the former Ft. Ord beaches: From the northern boundary of former 
Fort Ord, S. about .8 km (0.5 mi) along the Southern Pacific Railroad 
to its intersection with Beach Range Road, S. about 5.6 km (3.5 mi) 
along Beach Range Road to its terminus; S. to the southern boundary of 
former Fort Ord, W. to the mean high tide line, N. along the mean high 
tide line to the northern boundary of former Fort Ord.

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* * * * *

    Dated: January 16, 2001
Kenneth L. Smith.
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-1837 Filed 2-14-01; 8:45 am]
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