[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Rules and Regulations]
[Pages 21450-21489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10333]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Determination of 
Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha 
bayensis); Final Rule

  Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH61


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for the Bay Checkerspot Butterfly 
(Euphydryas editha bayensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), 
designate critical habitat for the bay checkerspot butterfly 
(Euphydryas editha bayensis) (bay checkerspot), pursuant to the 
Endangered Species Act of 1973, as amended (Act). A total of 
approximately 9,673 hectares (23,903 acres) in San Mateo and Santa 
Clara counties, California, is designated as critical habitat.
    Critical habitat identifies specific areas that have the physical 
and biological features that are essential to the conservation of a 
listed species, and that may require special management considerations 
or protection. The primary constituent elements for the bay checkerspot 
are one or more of the following: stands of Plantago erecta, 
Castilleja exserta, or Castilleja densiflora; spring 
flowers providing nectar; pollinators of the bay checkerspot's food and 
nectar plants; soils derived from serpentinic rock; and space for 
dispersal between habitable areas. In addition, the following are each 
primary constituent elements to be conserved when present in 
combination with one or more of the primary constituent elements above: 
areas of open grassland, topography with varied slopes and aspects 
providing surface conditions with warm and moderate to cool 
temperatures during sunny spring days, stable holes or cracks in the 
soil and surface rocks or rock outcrops, wetlands providing moisture 
during times of spring drought.
    In addition, the following are each primary constituent elements to 
be conserved when present in combination with one or more of the 
primary constituent elements above: areas of open grassland, topography 
with varied slopes and aspects, stable holes or cracks in the soil and 
surface rocks or rock outcrops, and wetlands providing moisture during 
times of spring drought.
    Section 7 of the Act prohibits destruction or adverse modification 
of critical habitat by any activity funded, authorized, or carried out 
by any Federal agency. Section 4 of the Act requires us to consider 
economic and other impacts of specifying any particular area as 
critical habitat. We solicited data and comments from the public on all 
aspects of the proposed rule and economic analysis. We revised the 
proposal to incorporate or address new information received during the 
comment periods.

DATES: This rule becomes effective on May 30, 2001.

ADDRESSES: Comments and materials received, as well as 
supporting documentation used in the preparation of this final rule, 
will be available for public inspection, by appointment, during normal 
business hours at the Sacramento Fish and Wildlife Office, U.S. Fish 
and Wildlife Service, 2800 Cottage Way, Room W2605, Sacramento, 
California 95825.

FOR FURTHER INFORMATION CONTACT: David Wright or Chris Nagano 
at the address above (telephone 916/414-6600; facsimile 916/414-6712).

SUPPLEMENTARY INFORMATION:

Background

    The bay checkerspot is a medium-sized butterfly with a wingspan of 
about 5 centimeters (2 inches (in.)). The forewings have black bands 
along all the veins on the upper wing surface, contrasting sharply with 
bright red, yellow, and white spots. The bay checkerspot is 1 of about 
20 subspecies of Euphydryas editha (Miller and Brown 1981), and 
differs in physical appearance from other subspecies in a variety of 
size, wing coloration, larval, and pupal characteristics (Howe 1975; 
Mattoni et al. 1997). It differs from LuEsther's checkerspot 
(Euphydryas editha luestherae), (a later-flying, 
Pedicularis-feeding subspecies of Inner Coast Range chaparral 
in central California), by being darker, and lacking a relatively 
uninterrupted red band demarcating the outer third of the wing. The 
black banding on the forewings of the bay checkerspot gives a more 
checkered appearance than the smaller quino checkerspot butterfly 
(Euphydryas editha quino) of southern California (Service 
1998).
    Recent publications have advocated renaming the bay checkerspot, 
Euphydryas editha bayensis, as Euphydryas editha editha 
for reasons of historical precedence (Mattoni et al. 1997; 
Emmel et al. 1998). Mattoni and co-authors (1997) have also 
suggested that Euphydryas editha editha ranges from the San 
Francisco Bay area south to northern Santa Barbara County in 
California, and includes both the populations commonly known as the bay 
checkerspot and several populations south of Santa Clara County whose 
subspecific status has been uncertain. If this expanded subspecific 
assignment is accepted by the scientific community, it would represent 
a range extension for the bay checkerspot. Until such time as we make 
any new or revised determination on the taxonomy, in this final rule, 
we treat the threatened bay checkerspot as occurring in San Francisco 
Bay area counties, notably the counties of San Mateo and Santa Clara, 
as described in the final rule for the subspecies (52 FR 35378).
    The bay checkerspot formerly occurred around San Francisco Bay, 
from Twin Peaks and San Bruno Mountain (west of the Bay) and Contra 
Costa County (east of the Bay), south through Santa Clara County. 
Before the introduction of invasive Eurasian grasses and other weeds in 
the 1700s, its distribution may have been wider (Service 1998). In the 
decades preceding listing, the decline of the bay checkerspot was 
primarily attributed to loss of habitat and fragmentation of habitat 
due to increasing urbanization. Drought and other extremes of weather 
have also been implicated in bay checkerspot population declines 
(Ehrlich et al. 1980; Service 1998). Recent research has 
identified excess nitrogen deposition from polluted air as a threat to 
bay checkerspot habitats, due to its fertilizing effect enhancing the 
growth of invasive nonnative plants even in serpentine soil areas 
(Weiss 1999).
    Habitat of the bay checkerspot most commonly is found on shallow, 
serpentine-derived or similarly droughty or infertile soils, which 
support the butterfly's larval food plants and also includes nectar 
sources for adults that may also occur on other adjacent soil types. 
Serpentine soils are high in magnesium and low in calcium, and are a 
strong indicator of habitat value for the bay checkerspot. The primary 
larval host plant of the bay checkerspot is Plantago erecta 
(dwarf plantain), an annual, native plantain. The bay checkerspot 
usually is found associated with Plantago erecta in grasslands 
on serpentine soils, such as soils in the Montara series. In Santa 
Clara County, the Inks and Climara soil series are related soils and 
often have inclusions of Montara (U.S. Soil Conservation Service 1974). 
Henneke and other serpentine soils also occur within the range of the 
bay checkerspot. Populations of the bay checkerspot formerly occurred 
on San Bruno Mountain and other locations with soils that are not 
serpentine. We believe this

[[Page 21451]]

indicates that, with otherwise suitable habitat conditions, the bay 
checkerspot is capable of living in nonserpentine soil areas.
    Serpentine soils are well known for harboring rare and endemic 
plant species, and because the bay checkerspot inhabits serpentine 
areas, our critical habitat designation for the bay checkerspot 
overlaps habitat of several federally listed plant species: the San 
Mateo thornmint (Acanthomintha obovata ssp. duttonii), 
Santa Clara Valley dudleya (Dudleya setchellii), Coyote 
ceanothus (Ceanothus ferrisae), Tiburon paintbrush 
(Castilleja affinis ssp. neglecta), fountain thistle 
(Cirsium fontinale var. fontinale), Marin dwarf flax 
(Hesperolinon congestum), white-rayed pentachaeta 
(Pentachaeta bellidiflora), and Metcalf Canyon jewelflower 
(Streptanthus albidus ssp. albidus) (Service 1998). 
However, bay checkerspot critical habitat does not include all the 
habitat essential to any of these plant species. Bay checkerspot 
critical habitat is also coincident with habitat for a number of rare 
plants and animals that are not federally listed (Service 1998).
    In many years, bay checkerspot larvae may use a secondary host 
plant species, for instance, when dwarf plantain dries up while 
prediapause larvae are still feeding. Castilleja 
(Orthocarpus) densiflora (purple owl's-clover) and 
Castilleja exserta (Orthocarpus purpurascens) (exserted 
paintbrush) are known secondary host plants that often remain edible 
later in the season than dwarf plantain. Bay checkerspot adults also 
visit flowers for nectar. Nectar plants commonly visited include 
Lomatium spp. (desert parsley), Lasthenia californica 
(= chrysostoma) (California goldfields), Layia 
platyglossa (tidy-tips), Muilla maritima, and others. 
Moderate grazing is normally compatible with habitat for the bay 
checkerspot, since grazing can reduce the density and height of 
nonnative plants that compete with the native plants supporting the 
butterfly.
    The bay checkerspot's life cycle is closely tied to host plant 
biology. Host plants germinate anytime from early October to late 
December, and senesce (dry up and die) from early April to mid May. 
Most of the active parts of the bay checkerspot life cycle also occur 
during this period. Adults emerge from pupae (a transitional stage 
between caterpillar and adult butterfly) in early spring, and feed on 
nectar, mate, and lay eggs during a flight season that typically lasts 
for 4 to 6 weeks in the period between late February to early May. The 
eggs hatch and the tiny larvae feed for about 2 to 3 weeks before 
entering diapause (a temporary cessation of development) in mid to late 
spring. The postdiapause larvae emerge after winter rains stimulate 
germination of Plantago, and feed and bask until they are large 
enough to pupate and emerge as adults (Service 1998). If insufficient 
food is available, a post-diapause checkerspot larva can re-enter 
diapause and emerge again one year or more later (Singer and Ehrich 
1979; Mattoni et al. 1997).
    Most Euphydryas editha subspecies exhibit generally 
sedentary behavior, with adults frequently remaining in the same 
habitat patch in which they developed as larvae (Ehrlich 1961, 1965; 
Boughton 1999, 2000). Female bay checkerspots were found to be more 
likely to emigrate than males (Ehrlich et al. 1984). When 
female Euphydryas editha butterflies fail to encounter 
preferred host plants, the likelihood of emigration to other suitable 
habitat patches increases (Thomas and Singer 1987). Adult dispersal by 
the bay checkerspot is typically less than 150 meters (490 feet) 
between recaptures (Ehrlich 1961, Ehrlich 1965, Gilbert and Singer 
1973). However, Harrison (1989) recaptured bay checkerspots greater 
than 1 kilometer (0.6 mile) from the point of release in 5 percent of 
cases. Long-distance dispersal in bay checkerspot butterflies has been 
documented as far as 7.6 km (4.7 miles) (D. Murphy pers. comm.), 5.6 km 
(3.5 miles) (1 male), and 3 km (2 miles) (1 female) (Harrison 1989). 
The butterflies are likely to be capable of dispersing even longer 
distances. In all dispersal observations and experiments, long-distance 
movements are hard to detect, and thus their frequency and importance 
are difficult to quantify. Qualitative observations suggest that bay 
checkerspots move readily over suitable grassland habitat, but are more 
reluctant to cross scrub, woodland or other unsuitable habitat. Roads, 
especially, those traveled more heavily and at higher speeds, present a 
risk of death or injury to dispersing butterflies. Where corridors that 
facilitate dispersal exist, they may support the persistence of bay 
checkerspot populations.
    Long-distance habitat patch colonization may be achieved within a 
single season through long-distance dispersal of individual 
butterflies, or over several seasons through stepping-stone habitat 
patch colonization and dispersal events. In one study of the Santa 
Clara County bay checkerspot metapopulation, no colonizations of 
unoccupied habitat patches farther than 4.5 kilometers (2.8 miles) from 
the source population were detected over a 10-year period (Harrison 
et al. 1988). A mathematical model of unknown accuracy 
predicted satellite habitat patches at a distance greater than 7 to 8 
kilometers (4 to 5 miles) from a primary source population were not 
likely to support populations (Harrison et al. 1988).
    The known range of the bay checkerspot is now reduced to Santa 
Clara and San Mateo counties, and it is patchily distributed in these 
locales. Studies of the bay checkerspot have described its distribution 
as an example of a metapopulation (see literature cited in Service 
1998). A metapopulation is a group of spatially separated populations 
that can occasionally exchange dispersing individuals. The populations 
in a metapopulation are usually thought of as undergoing interdependent 
extinction and colonization, where individual populations may go 
extinct, but later recolonize from another population. That is, 
although member populations may change in size independently, their 
probabilities of existing at a given time are not independent of one 
another because they are linked by processes of extinction and mutual 
recolonization, processes that occur on the order of every 10 to 100 
generations (Harrison et al. 1988). The ability and propensity 
of larvae to undergo multiple-year diapause in the field, and survival 
rates during repeated diapause, all currently unquantified, will also 
affect the persistence time of local populations. Bay checkerspot 
populations may also exhibit ``'pseudo-extinction,''' where the species 
is not found, but nonetheless continues to inhabit a site and reappears 
in a subsequent year. Since the early stages of the bay checkerspot are 
extremely difficult or impossible to locate in surveys (White 1987), 
the failure to discover caterpillars that diapause for more than 1 year 
may be responsible for pseudo-extinctions. Because of pseudo-extinction 
and metapopulation dynamics, even sites that in some years apparently 
lack the bay checkerspot are important to the survival and recovery of 
the species.
    The timescale of bay checkerspot metapopulation dynamics, which 
includes boom and bust fluctuations of site populations, effects of 
California's variable climate, extirpations (loss of local populations) 
and recolonizations, is on the scale of decades to centuries, much 
longer than typical human planning efforts. Adequacy of designated 
critical habitat lands for conservation of the bay checkerspot depends 
on long-term persistence of the species' Santa Clara and San Mateo 
metapopulations, through conservation of many habitat patches and 
opportunity for dispersal/

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recolonization /gene flow events that link populations in the 
metapopulations. Such dispersal events must include long-distance 
colonizations that are rare because they occur during unusually 
favorable years or sequences of years for the bay checkerspot, 
resulting in population booms and many more dispersing butterflies.
    Bay checkerspot populations vary greatly from year to year. Many or 
most individuals of the species live only a single year, and with high 
fecundity (fertility), high mortality, and sensitivity to weather and 
perhaps other ecological conditions, large population swings are common 
for the bay checkerspot. Fluctuations of more than 100-fold have been 
observed. These fluctuations are not always in synchrony among 
populations at different sites.
    Weiss et al. (1988) and Murphy and Rehm (1992) found that 
the populations of the bay checkerspot butterfly take refuge during dry 
years largely on cool north- and northeast-facing serpentine grassland 
slopes. However, they reported that during years of above-average 
rainfall the species expands its population on warmer slopes, including 
more xeric south- and west-facing slopes. Although infrequent and 
short-term, such expansions can contribute to the long-term 
metapopulation persistence, especially for a species like the bay 
checkerspot, whose numbers are regulated more by environmental factors 
than population density. Murphy and White (1984) stated that long-
distance dispersal events associated with population outbreaks may 
contribute significantly to colonization or recolonization of 
unoccupied areas and hence to long-term survival of the checkerspot 
butterflies.
    Habitat areas that appear to be low quality or are temporarily low 
quality, therefore, can be essential to the long-term persistence of 
bay checkerspot populations, which reside in habitats vulnerable to 
highly variable or catastrophic environmental phenomena, such as 
drought, or habitat destruction caused by urban development. Patches of 
habitat, whether of high or marginal quality, can serve as ``stepping 
stones'' for regional metapopulations. These patches can facilitate 
gene flow between small populations and can provide routes for 
individuals to colonize surrounding habitats that have been subject to 
local extinction. Loss of temporarily empty ``stepping stone'' habitat 
patches would disrupt the dynamics of the entire bay checkerspot 
metapopulation. According to Murphy (1990) ``* * * the necessity of 
protecting remnants of once extensive metapopulations will demand the 
protection of both presently occupied habitat patches and those which 
may be presently unoccupied, but which can support the bay checkerspot 
under certain climatic conditions.''

Previous Federal Action

    On October 21, 1980, we were petitioned by Dr. Bruce O. Wilcox, 
Dennis D. Murphy, and Dr. Paul R. Ehrlich to list the bay checkerspot 
as an endangered species. We published a Notice of Status Review on 
February 13, 1981 (46 FR 12214). Following our status review, we found 
that listing the bay checkerspot was warranted but precluded by other 
pending listing actions (49 FR 2485). We proposed the bay checkerspot 
for listing as endangered with critical habitat on September 11, 1984 
(49 FR 35665), and listed the subspecies as threatened on September 18, 
1987 (52 FR 35366). At the time of listing, because of difficulty in 
resolving the value of specific habitats to the subspecies and 
assessing the activities being conducted in those areas, we concluded 
that critical habitat was not determinable. We published a Recovery 
Plan for Serpentine Soil Species of the San Francisco Bay Area 
(Recovery Plan) in September 1998 that includes the bay checkerspot 
(Service 1998), as required under section 4(f) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.).
    On June 30, 1999, the Center for Biological Diversity filed a 
complaint against us challenging our critical habitat findings for 
seven species, including the bay checkerspot butterfly. On August 30, 
2000, the United States District Court for the Northern District of 
California (Southwest Center for Biological Diversity v. Bruce Babbitt, 
et al., CIV 99-3202 SC) ruled on several of the species 
involved, including the bay checkerspot butterfly. The court ordered us 
to propose critical habitat within 60 days of the ruling and to 
finalize the designation within 120 days of the proposed designation. A 
subsequent settlement agreement with the Center for Biological 
Diversity extended the date for the final decision to April 20, 2001.
    We proposed critical habitat for the bay checkerspot butterfly on 
October 16, 2000 (65 FR 61218). The original comment period closed on 
December 15, 2000. A notice of availability for the draft economic 
analysis and reopening of the public comment period was published in 
the Federal Register on February 9, 2001 (66 FR 9683). The 
second comment period closed on March 12, 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 consideration 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon 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 species 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 consultation 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.
    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

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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), that 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 (Vol. 
59, p. 34271), identifies criteria, establishes procedures, and 
provides guidance to ensure that decisions made by the Service 
represent the best scientific and commercial data available. It 
requires Service 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 is 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, biological assessments, unpublished materials, and expert 
opinion or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, because of the information available 
for us at the time of designation, 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, 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 take 
prohibitions of section 9 of the Act, 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

    In identifying areas that are essential to conserve the bay 
checkerspot, we used the best scientific information available. This 
included habitat suitability and site-specific species information. We 
have emphasized areas of current and historical bay checkerspot 
occurrences, especially larger sites in proximity to known occurrences. 
To maintain genetic and demographic interchange that will help maintain 
the viability of a regional metapopulation, we included corridor areas 
that allow movement between populations. Dispersal is a crucial 
function for a species with metapopulation dynamics like the bay 
checkerspot.
    We used data on known and historic locations and maps of serpentine 
soils to identify potentially important areas. Then, through the use of 
1990s digital orthophotos available through the Bay Area Digital 
GeoResource (BADGER) website (http://badger.parl.com), and limited 
ground checking, we estimated the current extent of suitable breeding 
habitat. We included in critical habitat both suitable habitat and 
areas that link suitable breeding habitat, since these links facilitate 
movement of individuals between habitat areas and are important for 
dispersal and gene flow and, thus, to the conservation of the 
subspecies. For the final rule, we checked the critical habitat 
boundaries we proposed for the subspecies against 1999 SPOT satellite 
imagery and removed identifiable developed areas.
    Our 1984 proposal to list the bay checkerspot with critical habitat 
(49 FR 35665) proposed five critical habitat zones. Four of the five 
are included in this designation, with modifications based on improved 
knowledge of the biology and habitat of the subspecies. Since 
publication of the original proposal, the fifth zone (Woodside Zone) 
has been mostly converted to housing. Therefore, it is not included in 
the critical habitat designation. Since 1984, a great deal of 
literature on the bay checkerspot butterfly, both published and 
unpublished, has added to our understanding of the subspecies (see 
literature cited in Service 1998; Weiss 1999; Weiss and Launer 2000). 
Based on this expanded information and other information in the 
Recovery Plan (Service 1998), we have been able to identify habitats 
and populations that were poorly documented before the mid-1980s, and 
assess their significance. Besides the four previously identified 
critical habitat zones, this final rule identifies 11 additional 
habitat units essential to the conservation of the bay checkerspot, for 
a total of 15 critical habitat units. Further, information provided in 
comments on the proposed designation and draft economic analysis were 
evaluated and taken into consideration in the development of this final 
designation.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas to designate as critical 
habitat, we must consider those physical and biological features 
(primary constituent elements) essential to the conservation of the 
species and that may require special management considerations and 
protection. These include, but are not limited to, space for individual 
and population growth and for normal behavior; food, water, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, or rearing of

[[Page 21454]]

offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The primary constituent elements of critical habitat for the bay 
checkerspot are those habitat components that are essential for the 
primary biological needs of foraging, sheltering, breeding, maturation, 
and dispersal. The areas we are designating as critical habitat provide 
some or all of the known primary constituent elements for the 
subspecies, which include: stands of Plantago erecta, 
Castilleja exserta, or Castilleja densiflora; spring 
flowers providing nectar; pollinators of the bay checkerspot's food and 
nectar plants; soils derived from serpentinic rock; and space for 
dispersal between habitable areas. In addition, the following are each 
primary constituent elements to be conserved when present in 
combination with one or more of the primary constituent elements above: 
areas of open grassland, topography with varied slopes and aspects 
providing surface conditions with warm and moderate to cool 
temperatures during sunny spring days, stable holes or cracks in the 
soil and surface rocks or rock outcrops, wetlands providing moisture 
during times of spring drought.
    Appropriate grassland vegetation provides cover for larvae, pupae 
and adults, egg-laying stimuli and sites for females, and adequate open 
ground for larvae to be able to crawl efficiently in search of 
foraging, basking, diapause, or pupation sites (Service 1998). Stands 
of food plants, including nectar plants, are important in the bay 
checkerspot's life cycle. The bay checkerspot's primary larval food 
plant is Plantago erecta, an annual, native plantain. The 
larvae also often use a secondary food plant species, usually either 
Castilleja (Orthocarpus) densiflora (purple owl's-clover) or 
Castilleja exserta (Orthocarpus purpurascens) (exserted 
paintbrush). These secondary food plants tend to remain edible later in 
the season than the plantain. Bay checkerspot adults benefit from 
visiting flowers for nectar. Nectar plants commonly visited include 
Lomatium spp. (desertparsley), Lasthenia californica (= 
chrysostoma) (California goldfields), Layia platyglossa (tidy-
tips), Muilla maritima (sea muilla), and others.
    Adequate native pollinators to sustain populations of 
Castilleja and nectar species, including, but not limited to, 
such groups as bumblebees and solitary bees, are important to the value 
of critical habitat because these plants are dependent on pollinators 
to reproduce and perpetuate their populations in the area. Plantago 
erecta is thought to be self-pollinating.
    The bay checkerspot usually is found associated with grasslands on 
serpentine soils, such as the Montara soil series. In Santa Clara 
County, the Inks and Climara soil series are related soils and often 
have inclusions of Montara (U.S. Soil Conservation Service 1974). 
Henneke and other serpentine soils also occur within the range of the 
bay checkerspot. Serpentine soils often support other primary 
constituent elements, but they are not limited to serpentine soils. 
Soil structure with stable holes or cracks and surface rocks or rock 
outcrops provide cover and shelter for bay checkerspot larvae seeking 
diapause sites and basking sites.
    Bay checkerspot adults have been observed to fly considerable 
distances during drought conditions to draw water or solutes from moist 
soils around wetlands (``puddling,'' Launer et al. 1993). 
Triggering of the puddling behavior by drought conditions suggests it 
is a directed, adaptive behavior, and that the butterflies are seeking 
out moist areas during times of water or heat stress to obtain 
essential nutrients or water (Launer et al. 1993).
    Adult bay checkerspots are capable of dispersing over long 
distances. Movements of more than 5.6 kilometers (km) (3.5 miles (mi)) 
have been documented (see Service 1998), and longer movements are 
possible. Adult dispersal, especially by fertilized females carrying 
eggs, is vital to the maintenance of natural bay checkerspot 
metapopulation structure, which requires reestablishment or 
replenishment of populations that are at or near local extinction. 
Roads, especially those traveled more heavily and at higher speeds, 
present a risk of death or injury to dispersing bay checkerspots. Where 
open spaces exist that facilitate dispersal, they support the 
persistence of bay checkerspot populations and metapopulations. Some 
habitats or land uses are thought to be more suitable for dispersal 
than others; for example, grassland may be more readily crossed than 
woodland or landscaped areas. But documented long-distance movements 
demonstrate that the bay checkerspot is sometimes capable of crossing a 
variety of substrates (Service 1998).
    Topographic diversity provides opportunities for early season 
warmth as well as cool north-and east-facing slopes that are a refuge 
for the subspecies during droughts. Bay checkerspot larvae develop more 
rapidly when they can bask in sunlight that penetrates short-statured 
grassland vegetation. Adults also use warm exposures for basking, and 
find early-season nectar plants on warm south-and west-facing slopes 
(Weiss et al. 1988).

Criteria Used To Identify Critical Habitat

    In an effort to map areas that have the features essential to the 
conservation of the subspecies, we used data on known bay checkerspot 
locations, and conservation planning areas that were identified in the 
Recovery Plan (Service 1998) as essential for the recovery of the 
subspecies.
    We also considered the existing status of lands in designating 
areas as critical habitat. The bay checkerspot is known to occur on 
State, county, and private lands. The range of critical habitat extends 
in the south from the San Martin area, in Santa Clara County, north to 
San Bruno Mountain in San Mateo County. We could not depend on Federal 
lands for critical habitat designation because we are not currently 
aware of any Federal lands within the range of the bay checkerspot that 
can be inhabited by the butterfly. We are also not aware of any Tribal 
lands in or near the critical habitat units for the bay checkerspot.
    Section 10(a) of the Act authorizes us to issue permits to take 
listed species incidental to otherwise lawful activities. An incidental 
take permit application must be supported by a habitat conservation 
plan (HCP) that identifies conservation measures that the permittee 
agrees to implement for the species to minimize and mitigate the 
impacts of the requested incidental take. One small, short-term HCP 
covers the bay checkerspot on about 4 hectares (ha) (10 acres (ac)) of 
critical habitat through November 2001. This HCP permits temporary 
project-related impacts from electric transmission line work. To date, 
project construction anticipated to affect the bay checkerspot is 
substantially complete (see the Relationship to Habitat Conservation 
Plans section below for additional information on the relationship 
between HCPs and critical habitat designation).
    In selecting areas of critical habitat, we made an effort to avoid 
developed areas, such as towns and other similar lands, that are 
unlikely to contribute to bay checkerspot conservation. However, the 
information available to us did not allow us to exclude all recently 
developed areas, such as towns, housing developments, or other lands 
unlikely to contain the primary constituent elements essential for 
conservation of the bay checkerspot. Existing features and structures 
within the boundaries of the mapped units, such as buildings, roads, 
aqueducts, railroads, airports,

[[Page 21455]]

other paved areas, lawns, and other urban landscaped areas are not 
likely to contain primary constituent elements essential for the 
conservation of the bay checkerspot. Federal actions limited to those 
areas, therefore, would not trigger a section 7 consultation, unless 
they affect the species and/or primary constituent elements in adjacent 
critical habitat.

Critical Habitat Designation

    The areas we are designating as critical habitat currently provide 
some or all of those habitat components necessary to meet the primary 
biological needs of the bay checkerspot butterfly. Table 1 shows the 
approximate area of critical habitat by county and land ownership. 
Lands designated are under private and State and local ownership. The 
subspecies is not known to occur, or to have historically occurred, on 
Federal lands. Lands designated as critical habitat have been divided 
into 15 Critical Habitat Units. Critical habitat designated for the bay 
checkerspot includes 9,673 ha (23,903 ac), with 806 ha (1,992 ac) in 
San Mateo County and 8,867 ha (21,911 ac) in Santa Clara County. 
Because the bay checkerspot is nearly confined to island-like patches 
of habitat, its critical habitat is easily categorized into separate 
areas or units (see maps). We present brief descriptions of each unit, 
and our reasons for designating it as critical habitat, below.
    Conserving the bay checkerspot includes the need to reestablish 
historic populations of the subspecies to areas within several of the 
units, in order to secure the butterfly in representative sites in its 
former range, and in a range of habitat and climate conditions. 
Returning the bay checkerspot to good representatives of its former 
diversity of sites and habitat and climate conditions is necessary to 
reduce the long-term risk of range-wide extinction of the subspecies 
(Service 1998).
    The long-term probability of the survival and recovery of the bay 
checkerspot butterfly is dependent on the maintenance of its 
metapopulation dynamics through the protection of existing serpentine 
habitat, the movement of individuals between these sites, and the 
ability of the butterflies to recolonize habitat where they have become 
extirpated. Recolonization of sites with suitable habitat that 
contained populations that have become extinct and the maintenance of 
genetic diversity within existing populations is dependent upon 
``stepping stones'' of habitat, including habitat that may appear 
marginal, that the bay checkerspot can colonize and disperse from 
during rare periods of very favorable climatic conditions.

                             Table 1.--Approximate Critical Habitat in Hectares (ha) and Acres (ac) by County and Ownership
   [Area estimates reflect critical habitat unit boundaries; however, not all the areas within those broad boundaries, such as cities, towns, or other
                           developments, contain habitat features considered essential to the survival of the bay checkerspot]
--------------------------------------------------------------------------------------------------------------------------------------------------------
             County                 Federal               Local/State                           Private                              Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Mateo.......................          0   520 ha (1,285 ac).................  286 ha (707 ac)...................  806 ha (1,992 ac).
Santa Clara.....................          0   922 ha (2,278 ac).................  7,945 ha (19,633 ac)..............  8,867 ha (21,911 ac).
                                 -----------------------------------------------------------------------------------------------------------------------
Total...........................          0   1,442 ha (3,563 ac)...............  8,231 ha (20,340 ac)..............  9,673 ha (23,903 ac).
--------------------------------------------------------------------------------------------------------------------------------------------------------

Unit 1. Edgewood Park/Triangle Unit

    Occurring in San Mateo County, this unit comprises 217 ha (535 ac) 
in T.5 S., R.4 W. (Mount Diablo meridian/base line). Included is most 
of Edgewood Natural Preserve, a county park southeast of the junction 
of Edgewood Road, and I-280, and watershed lands of the San Francisco 
Public Utilities Commission, Water Supply and Treatment Division, 
within the triangle formed by I-280, Edgewood Road, and Canada Road, as 
well as a small additional area of serpentine soil on the west side of 
Canada Road. Much of this area also falls within the San Francisco 
State Fish and Game Refuge. The area supports the Edgewood population 
of the bay checkerspot discussed in the subspecies' Recovery Plan, 
which is the main population of the San Mateo metapopulation of the bay 
checkerspot (Service 1998). Without the Edgewood population the San 
Mateo metapopulation would almost certainly go extinct, resulting in 
the loss of one of only two metapopulations of the bay checkerspot and 
a significant range reduction for the subspecies. This population is 
also the northernmost remaining population of the subspecies. The unit 
contains considerable areas of good habitat, although additional 
management attention may be needed for the bay checkerspot to thrive 
here. The unit is 7 km (4 mi) northwest of the Jasper Ridge unit.

Unit 2. Jasper Ridge Unit

    Occurring within San Mateo County, the unit covers 287 ha (709 ac) 
in Stanford University's Jasper Ridge Biological Preserve, in T.6 S., 
R.3 W. (Mount Diablo meridian/base line). Decades of data and dozens of 
published scientific papers about the Jasper Ridge population of the 
bay checkerspot exist. The population has severely declined in recent 
years, and may now be extirpated (Service 1998). However, we are 
confident that a stable population of the subspecies can be restored to 
Jasper Ridge because the area is protected and managed as a biological 
preserve by Stanford University and suitable habitat continues to be 
present. The Jasper Ridge population is essential as a supporting 
element of the San Mateo metapopulation, and a backup to the Edgewood 
and prospective San Bruno Mountain populations. The unit is 34 km (21 
mi) west-northwest of the Communications Hill unit, the closest 
connection to units in the Santa Clara County metapopulation.

Unit 3. San Bruno Mountain Unit

    This unit also occurs in San Mateo County, with approximately 303 
ha (748 ac) in T.3 S., R.5 W. (Mount Diablo meridian/base line), above 
the 152 m (500 ft) elevation contour, and east of the western Pacific 
Gas and Electric transmission corridor on San Bruno Mountain. This unit 
is mostly within San Bruno Mountain State and County Park, and is 
inside the boundaries of the San Bruno Mountain Area Habitat 
Conservation Plan area. The bay checkerspot formerly inhabited this 
area, but is believed to have been extirpated around 1986 by a 
combination of factors, including over-collection and a fire that 
burned its habitat. However, this unit has supported a substantial bay 
checkerspot population in the past, and it is reasonable to expect that 
the butterfly can be reestablished here.
    San Bruno Mountain represents the most northerly part of the 
subspecies' former range on the San Francisco peninsula with reasonably 
good conditions to support the bay checkerspot. The San Bruno Mountain

[[Page 21456]]

unit is essential as a supporting element of the San Mateo 
metapopulation, and a backup to the Edgewood and Jasper Ridge 
populations. The unit lies 25 km (16 mi) north-northwest of the 
Edgewood Park/Triangle unit.

Unit 4. Bear Ranch Unit

    The Bear Ranch unit, totaling 250 ha (617 ac), lies west of Coyote 
Lake (Coyote Reservoir) in the eastern hills of the Santa Clara Valley, 
in southern Santa Clara County (T.9 S., R.4 E. and T.10 S., R.4 E., 
Mount Diablo meridian/base line). The unit is named for a ranching 
property that partly occurs in the unit. The ranch and lands, including 
and surrounding the unit, are now owned and managed by the Santa Clara 
County Parks and Recreation Department. This location represents one of 
the most recent population discoveries of the bay checkerspot, and has 
been documented for several years as a persistent population. The 
population is also one of the most southerly occurrences of the bay 
checkerspot. It lies about 10 km (6 mi) southeast of the Kirby core 
population area described in the Recovery Plan (Service 1998), with 
some intervening habitable areas and adequate dispersal corridors. Over 
40 ha (100 ac) of mapped and an unquantified acreage of unmapped 
serpentine soils in several large to small patches occur within the 
unit. In addition to the significance of its position establishing the 
outer perimeter of the range of the subspecies, the Recovery Plan makes 
the protection of large, good-quality habitat areas near core 
populations, such as this, a high priority (Service 1998).

Unit 5. San Martin Unit

    This unit includes 237 ha (586 ac) west of San Martin, in the 
western foothills of the Santa Clara Valley in southern Santa Clara 
County (T.9 S., R.3 E). Included in the designated critical habitat are 
extensive areas of serpentine soils and intervening areas that support 
habitat or are used for dispersal. Regular occupation of the unit by 
the bay checkerspot has been documented, although no quantitative 
surveys are available of this population. The unit lies entirely on 
private lands in unincorporated Santa Clara County, about 6.4 km (4 mi) 
west-southwest of the Bear Ranch unit and 11 km (7 mi) south of the 
Kirby core area. This is the second population at the southern 
periphery of the range. The Recovery Plan makes the protection of 
large, good-quality habitat areas near core populations, such as this, 
a high priority (Service 1998). We are not aware of any public lands in 
the unit.

Unit 6. Communications Hill Unit

    Communications Hill, and adjacent hilltops in south-central San 
Jose, are formed by outcroppings of serpentine rock, with grasslands 
capable of supporting the bay checkerspot. This unit occurs in Santa 
Clara County and covers 179 ha (443 ac) of mostly undeveloped land. It 
also crosses a major road and railroad tracks, and includes a quarry 
that we believe, after appropriate reclamation, could be restored to 
bay checkerspot habitat. The bay checkerspot has been documented on 
Communications Hill in the past. A survey of a limited portion of the 
hill conducted in the spring of 2000, but which missed the early weeks 
of the butterflies' flight season, did not detect the subspecies 
(Arnold 2000). Whether the unit is currently occupied is not known. We 
believe this unit functions as habitat of the species, functions in its 
regional metapopulations dynamics, and functions as a ``stepping 
stone'' for bay checkerspot dispersal. The Recovery Plan (Service 1998) 
calls for conservation of larger habitat areas currently or 
historically occupied by the bay checkerspot. Conservation of habitat 
at Communications Hill is identified in the Recovery Plan as a priority 
2 action, i.e., a recovery action that must be taken to prevent decline 
or other negative impact short of extinction (Table IV-1, task 2.1.19 
in the Recovery Plan). This location also represents the northwestern-
most remnant of the Santa Clara County metapopulation. The unit is 
surrounded by Curtner Avenue, Almaden Expressway, Hillsdale Avenue, and 
Monterey Road (T.7 S., R.1 E., Mount Diablo meridian/base line), and 
lies 3 km (2 mi) west of the Silver Creek unit.
    Much of this unit lies on private lands within unincorporated 
lands, with a smaller area in the City of San Jose. Portions of a Santa 
Clara County communications facility, a San Jose water company 
facility, and recently developed lands may fall within the unit. Only 
currently undeveloped areas supporting the primary constituent elements 
of habitat for the bay checkerspot would be subject to regulatory 
oversight of any Federal actions.

Unit 7. Kalana Hills Unit

    The Kalana Hills unit in Santa Clara County comprises 99 ha (244 
ac) on the southwest side of the Santa Clara Valley between Laguna 
Avenue and San Bruno Avenue (T.9 S., R.2 E, Mount Diablo meridian/base 
line). Four serpentine outcrops form hills or hillsides in this area. 
At least one population of the bay checkerspot has been documented on 
one or all of these outcrops in recent surveys. This unit also includes 
some intervening areas that connect the closer outcrops. The Coyote 
Ridge unit lies about 3.2 km (2 mi) to the northeast, the Santa Teresa 
unit about 2 km (1.2 mi) to the northwest, the San Vicente-Calero unit 
about 3.2 km (2 mi) to the west, and the Morgan Hill unit about 3.2 km 
(2 mi) to the southeast. Because of its proximity to several other, 
large population centers for the bay checkerspot, we expect the Kalana 
Hills unit to be regularly occupied by the subspecies. If, as is 
possible given the bay checkerspot's large population swings, the 
butterfly's population in the unit were to die out, it is likely to be 
quickly reestablished by bay checkerspots immigrating from adjacent 
sites. We are not aware of any public lands in the unit. A portion of 
the largest and northernmost serpentine outcrop is within the limits of 
the City of San Jose; the remainder of the unit is on private lands in 
unincorporated Santa Clara County.

Unit 8. Kirby Unit

    The Kirby critical habitat unit includes 2,797 ha (6,912 ac) along 
the southern portion of ``Coyote Ridge'' in Santa Clara County (T.8 S., 
R.2 E., T.8 S., R.3 E., and T.9 S., R.3 E., Mount Diablo meridian/base 
line). It contains the Kirby area for the bay checkerspot discussed in 
the subspecies' Recovery Plan (Service 1998). The ridge, informally 
known as Coyote Ridge, runs northwest to southeast, parallel to and 
east of Highway 101 from Yerba Buena Road to Anderson Reservoir in 
Santa Clara County, and forms the eastern slope of the Santa Clara 
Valley (U.S. Geological Survey (USGS) 7.5 minute quadrangles San Jose 
East, Lick Observatory, Santa Teresa Hills, and Morgan Hill. The ridge 
is not named on these maps). Coyote Ridge also parallels the Silver 
Creek Fault and Silver Creek itself. Extensive serpentine soil areas, 
and four population areas for the bay checkerspot (Kirby, Metcalf, San 
Felipe, and Silver Creek Hills) lie on, or adjacent to, this ridge and 
fault system (Service 1998). Metcalf Canyon, Silver Creek, and 
nonserpentine soil areas create natural divisions among these four 
population areas. The Kirby unit is the southernmost of four critical 
habitat units corresponding to the four population areas along Coyote 
Ridge, and runs along this ridge east of Highway 101 and Coyote Creek 
from Metcalf Canyon south to Anderson Lake. The northern boundary of 
the Kirby unit abuts the Metcalf unit. The northwest tip of the Kirby 
unit also

[[Page 21457]]

connects to the Tulare Hill Corridor unit.
    The Kirby critical habitat unit regularly supports one of the 
largest populations of the bay checkerspot, and is considered one of 
the centers of the subspecies' Santa Clara County metapopulation. The 
Recovery Plan (Service 1998) considers protection of the area of the 
highest priority for conservation of the subspecies. The unit contains 
several hundred acres of diverse serpentine grassland habitat as well 
as nectaring areas, seasonal wetlands, and dispersal areas. The unit 
includes lands within the limits of the City of San Jose, private lands 
in unincorporated Santa Clara County, and small areas in the City of 
Morgan Hill. Public lands in this unit include the Santa Clara County 
Field Sports Park and portions of Santa Clara County Motorcycle Park, 
Anderson Lake County Park, Coyote Creek Park, and lands of the Santa 
Clara Valley Water District. A 101 ha (250 ac) reserve, leased by Waste 
Management Inc. on behalf of the Kirby Conservation Trust to further 
conservation of the bay checkerspot, also falls within the unit. The 
Kirby Conservation Trust has funded extensive research on the bay 
checkerspot for more than a decade at the lease site, greatly improving 
our understanding of the ecology, population dynamics, and conservation 
needs of the subspecies (see literature cited in Service 1998). We 
removed approximately 57 ha (141 ac), all nonserpentine lands, from the 
unit as it was proposed on October 16, 2000.

Unit 9. Morgan Hill Unit

    The Morgan Hill unit in Santa Clara County includes 293 ha (724 ac) 
northwest of the City of Morgan Hill in Santa Clara County (T.9 S., R.2 
E., T.9 S., R.3 E., Mount Diablo meridian/base line). It lies less than 
3.2 km (2 mi) southwest of the Coyote Ridge unit and about 3.2 km (2 
mi) southeast of the Kalana Hills unit. This is the area described as 
``north of Llagas Avenue'' in our 1998 Recovery Plan. The unit is 
partly within the limits of the City of Morgan Hill and partly on 
private lands in unincorporated Santa Clara County. Murphy Springs 
Park, a small city park, is within the unit. The Morgan Hill unit has 
large areas of serpentine soils and grassland with a variety of slope 
exposures, suitable for the bay checkerspot. The unit has been 
documented to be occupied by the bay checkerspot in the past, as well 
as in more recent surveys in the past 2 to 3 years. Because of its 
large habitat area and proximity to core populations of the bay 
checkerspot, the Recovery Plan considers protection of this area 
essential to the conservation of the subspecies (Service 1998). We 
removed approximately 81 ha (201 ac), mostly residential development, 
from the unit as it was proposed.

Unit 10. Metcalf Unit

    This unit includes 1,356 ha (3,351 ac) in Santa Clara County, east 
of Highway 101, south of Silver Creek Valley Road, north of Metcalf 
Canyon, and west of Silver Creek (T.8 S., R.2 E., Mount Diablo 
meridian/base line). The unit contains the Metcalf area for the bay 
checkerspot, one of the four largest habitat areas and three largest 
current population centers for the bay checkerspot (Service 1998). As 
of the spring of 2000, this area supported the bay checkerspot's 
densest population (Weiss in litt. 2000). Hundreds of acres of 
serpentine soils, and thousands of bay checkerspot butterflies, occur 
within the unit. This area is considered one of the centers of the 
subspecies' Santa Clara County metapopulation. The Recovery Plan 
(Service 1998) considers protection of the area of the highest priority 
for conservation of the bay checkerspot. This unit adjoins the Kirby 
unit to the south, San Felipe unit to the east, Silver Creek Hills unit 
to the north, and Tulare Hill Corridor unit to the west, and provides 
crucial habitat connectivity for bay checkerspot dispersal among these 
areas. The Metcalf unit lies in the City of San Jose and on private 
lands in unincorporated Santa Clara County. Portions of Santa Clara 
County Motorcycle Park, Coyote Creek Park, and lands of Santa Clara 
Valley Water District fall within the unit. We removed approximately 
260 ha (643 ac), mostly commercial and residential development, from 
the unit as it was proposed.

Unit 11. San Felipe Unit

    This unit includes 404 ha (998 ac) in Santa Clara County, southwest 
of San Felipe Road and north of Metcalf Road (T.8 S., R.2 E., Mount 
Diablo meridian/base line), primarily on private lands in 
unincorporated county lands, but also within San Jose city limits. The 
unit contains the San Felipe population area for the bay checkerspot, 
one of the four largest habitat areas and three largest current 
population centers for the bay checkerspot (Service 1998). This area is 
considered one of the centers of the subspecies' Santa Clara County 
metapopulation. The Recovery Plan (Service 1998) considers protection 
of the area of the highest priority for conservation of the bay 
checkerspot. Several hundred acres of serpentine soils occur within the 
unit with nectaring and dispersal areas. We are not aware of any public 
lands in the unit.

Unit 12. Silver Creek Unit

    The Silver Creek unit comprises 318 ha (787 ac), primarily within 
the limits of the City of San Jose, but with some area on private lands 
in unincorporated Santa Clara County (T.7 S., R.1 E., T.7 S., R.2 E., 
T.8 S., R.2 E., Mount Diablo meridian/base line). This unit is 
surrounded by Highway 101 and Coyote Creek on the west, Yerba Buena 
Road on the north, Silver Creek on the east and northeast, and Silver 
Creek Valley Road on the south. The unit includes the Silver Creek 
Hills population area for the bay checkerspot (Service 1998). It 
includes nearly 405 ha (1,000 ac) of contiguous serpentine soils, other 
scattered serpentine outcrops, and also habitat less suitable for 
breeding but needed for nectar-feeding or dispersal. Approximately 382 
ha (943 ac) of developed areas and graded lands permitted for 
development have been removed from the unit as it was proposed. 
Included in our final designation for this unit is a roughly 162 ha 
(400 ac) nature preserve owned by William Lyon Homes (former Presley 
Homes) and managed by the non-profit Silver Creek Preserve. Several 
electric transmission lines and two major natural gas lines cross the 
unit.
    In the last several years, a small population of the bay 
checkerspot has been documented in the Silver Creek unit, and the area 
has a long history of much larger populations. Portions of the unit 
known to have been inhabited by the bay checkerspot in the past are 
currently in degraded condition. With the management being implemented 
by Lyon Homes and Silver Creek Preserve, we believe that the Silver 
Creek Hills population is likely to increase, and that much of the 
degraded area will be restored to useful breeding habitat. The Silver 
Creek unit has extensive, diverse, and high-quality habitat, and 
represents the northernmost unit of the Santa Clara County 
metapopulation. The Silver Creek unit provides a population reservoir 
critical to the survival of the Santa Clara County metapopulation of 
bay checkerspot--the larger and more viable of the two remaining 
metapopulations (Service 1998).

Unit 13. San Vicente-Calero Unit

    The San Vicente-Calero unit contains 759 ha (1,875 ac) within and 
to the west of Calero County Park, Santa Clara County (T.8 S., R.1 E., 
T.8 S., R.2 E., T.9 S., R.1 E., and T.9 S., R.2 E., Mount Diablo 
meridian/base line). This area supports a known population of the bay

[[Page 21458]]

checkerspot in a large area of good-quality habitat; other areas within 
the unit that are suitable for the bay checkerspot have not been 
surveyed. The unit is also within bay checkerspot dispersal distance of 
the Santa Teresa Hills unit (see below), which we consider to be 
capable of supporting a very large population of the bay checkerspot, 
and the Kalana Hills unit (number 9, above), which are themselves 
accessible to and from other units. Therefore, we believe the San 
Vicente-Calero population can contribute significantly to maintaining 
the Santa Clara County metapopulation of the bay checkerspot. For all 
these reasons, the Recovery Plan (Service 1998) considers protection of 
this area essential to the conservation of the subspecies. The unit is 
south of McKean Road and east of the town of New Almaden, Almaden Road, 
and Alamitos Creek. It lies about 1.6 km (1 mi) south of the Santa 
Teresa unit and about 3.2 km (2 mi) west of the Kalana Hills unit. 
Portions of the unit outside the county park are within the limits of 
the City of San Jose.

Unit 14. Santa Teresa Hills Unit

    The Santa Teresa Hills unit includes 1,821 ha (4,500 ac) in Santa 
Clara County (T.8 S., R.1 E. and T.8 S., R.2 E., Mount Diablo meridian/
base line) with extensive areas of serpentine soils. Portions of the 
Santa Teresa Hills are known to support the bay checkerspot now, and 
have supported the subspecies in the past, but no current comprehensive 
survey of the bay checkerspot in the area is available. We believe that 
the Santa Teresa Hills could support a significant population of bay 
checkerspots. In addition to adding a fifth substantial population to 
the Santa Clara County metapopulation, conservation and management of 
the Santa Teresa Hills population would support development of a strong 
population of the bay checkerspot in a slightly cooler, moister area of 
the county, at a site that may experience less air pollution than the 
more eastern units. The Santa Teresa Hills critical habitat unit is 
intended to include most undeveloped habitat in the area, as well as 
intervening areas that are unsurveyed or less suitable but needed for 
dispersal among higher-quality areas. The unit lies north of Bailey 
Avenue, McKean Road, and Almaden Road, south of developed areas of the 
city of Santa Clara, and west of Santa Teresa Boulevard. The unit abuts 
the Tulare Hill Corridor unit.

Unit 15. Tulare Hill Corridor Unit

    The Tulare Hill Corridor unit, 355 ha (876 ac) in Santa Clara 
County, connects the Coyote Ridge (Kirby and Metcalf, and through them, 
San Felipe and Silver Creek) and Santa Teresa units. Tulare Hill is a 
prominent serpentine hill that rises from the middle of the Santa Clara 
Valley in southern San Jose, west of the crossing of Metcalf Road and 
Highway 101 (T.8 S., R.2 E., Mount Diablo meridian/base line). 
Extensive habitat on the hill is currently occupied by the bay 
checkerspot, and is essential both as a population center and for 
dispersal across the valley. The Metcalf and Kirby populations of the 
bay checkerspot lie less than 1 km (0.6 mi) to the northeast, separated 
by a major highway (U.S. 101) and a narrow band of other unfavorable 
uses (another large road, railroad tracks, an electrical substation, a 
large open reservoir with artificially hardened banks, and agricultural 
area). The Santa Teresa Hills population area for the subspecies lies 
about 2 km (1.2 mi) to the southwest, with dispersal habitat in 
between. We believe the long-term viability of the bay checkerspot 
depends on the presence of a corridor for dispersal of adults to and 
from the Santa Teresa Hills and Coyote Ridge (Service 1998). Tulare 
Hill is an ideal location for such a corridor because of the narrowness 
of the valley at this location and the limited amount of development 
currently present, the presence of high elevations on the hill that may 
attract butterflies over busy roads and developed areas, and the 
presence of suitable habitat on Tulare Hill itself. Migrant butterflies 
from either Santa Teresa Hills or Coyote Ridge may settle on Tulare 
Hill, contributing individuals and genetic diversity to the population 
there, and adults from Tulare Hill may migrate to the adjacent habitat 
areas.
    Public lands within the designated unit include parts of Coyote 
Creek Park, Metcalf Park, and Santa Teresa County Park. Roughly half of 
Tulare Hill itself is within the limits of the City of San Jose, the 
remainder on private lands in unincorporated Santa Clara County. 
Several major electrical transmission lines cross the unit. Some areas 
within the unit are not inhabited by bay checkerspot individuals but 
can function as dispersal corridors.

Effect of Critical Habitat Designation

Section 7  Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. 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 requires Federal agencies, including the 
Service, to 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 proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) and regulations at 50 CFR 
402.10 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. If a species is listed or critical habitat is 
designated, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or to destroy or 
adversely modify critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
(action agency) must enter into consultation with us. Through this 
consultation, we would ensure that the permitted actions do not destroy 
or adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also seek to 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. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or

[[Page 21459]]

relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    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 over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference 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. Conference reports assist the agency in eliminating conflicts 
that may be caused by the proposed action, and may include 
recommendations on actions to eliminate conflicts with or adverse 
modifications to proposed critical habitat. 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 
an 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 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the bay checkerspot or 
its critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers (Corps) under section 
404 of the Clean Water Act, a section 10(a)(1)(B) permit from the 
Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration (FHA), Federal Aviation 
Administration, or Federal Emergency Management Agency (FEMA)), will 
also continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non-Federal lands that are not federally funded, authorized, 
or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat for both the survival and recovery of the bay checkerspot. 
Within critical habitat, this pertains only to those areas containing 
the primary constituent elements. We note that such activities may also 
jeopardize the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned, particularly when the area of the proposed action is 
occupied by the species concerned. Designation of critical habitat in 
areas occupied by the bay checkerspot is not likely to result in a 
regulatory burden above that already in place due to the presence of 
the listed subspecies.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and require that a section 
7 consultation be conducted include, but are not limited to:
    (1) Ground disturbance, including but not limited to, grading, 
discing, ripping and tilling;
    (2) Removing, destroying, or altering vegetation (e.g., 
altering grazing practices or seeding);
    (3) Water contracts, transfers, diversion, impoundment, 
application, or conveyance, groundwater pumping, irrigation, or other 
activity that wets or inundates habitat, creates barriers or deterrents 
to dispersal, or results in critical habitat being converted to lower 
values for the bay checkerspot (e.g., conversion to urban 
development, vineyards, landscaping, etc.);
    (4) Sale, exchange, or lease of critical habitat that is likely to 
result in the habitat being destroyed or degraded;
    (5) Recreational activities that significantly deter the use of 
critical habitat by bay checkerspots or alter habitat through 
associated maintenance activities (e.g., off-road vehicle 
parks, golf courses, trail construction or maintenance);
    (6) Construction activities that destroy or degrade critical 
habitat (e.g., urban and suburban development, building of 
recreational facilities such as off-road vehicle parks and golf 
courses, road building, drilling, mining, quarrying and associated 
reclamation activities); and
    (7) Application or drift onto critical habitat of pesticides, 
herbicides, fertilizers, or other chemicals or biological agents.
    (8) Deposition or release onto critical habitat of pollutants, 
other chemicals or biological agents.
    Any of the above activities that appreciably diminish the value of 
critical habitat, once established, to the degree that they affect the 
survival and recovery of the bay checkerspot may be considered an 
adverse modification of critical habitat. We note that such activities 
may also jeopardize the continued existence of the subspecies.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat 
resulting from a Federal action, contact the Field Supervisor, 
Sacramento 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, Branch of Endangered Species, 911 N.E. 11th 
Ave, Portland, Oregon 97232 (telephone 503/231-2063; facsimile 503/231-
6243).

Relationship to Habitat Conservation Plans (HCPs)

    Section 4(b)(2) of the Act allows us broad discretion to exclude 
from critical habitat designation areas where the benefits of exclusion 
outweigh the benefits of designation, provided the exclusion will not 
result in the extinction of the species. We believe that, in most 
instances, the benefits of excluding HCPs from critical habitat 
designations will outweigh the benefits of including them.
    The benefits of including HCP lands in critical habitat are 
normally small. Federally authorized, funded, or permitted activities 
in designated

[[Page 21460]]

critical habitat that may affect critical habitat require consultation 
under section 7 of the Act. This is the major benefit of designating 
lands as critical habitat. Consultation would ensure that adequate 
protection is provided to avoid adverse modification of critical 
habitat. However, our experience indicates that where HCPs are in 
place, this benefit is small or non-existent. Currently approved and 
permitted HCPs are designed to ensure the long-term survival of covered 
species within the plan area. The lands that we would find essential 
for the conservation of the species, and thus be considered for 
designation of critical habitat would, where we have approved HCPs and 
the species is a covered species under the HCP, normally be protected 
in reserves and other conservation lands. HCPs, and their associated 
implementation agreements, outline management measures and protections 
for conservation lands that are crafted to protect, restore, and 
enhance their value as habitat for covered species.
    In addition, an HCP application must itself be consulted upon by 
the Service. While this consultation will not look specifically at the 
issue of adverse modification of critical habitat, it will look at the 
very similar concept of jeopardy to the listed species in the plan 
area. HCPs, particularly large regional HCPs, address land use within 
the plan boundaries; habitat issues within the plan boundaries are 
thoroughly addressed in the HCP and the consultation on the HCP. Our 
experience is that, under most circumstances, consultations under the 
jeopardy standard will reach the same result as consultations under the 
adverse modification standard. Additional measures to protect the 
habitat from adverse modification are not likely to be required.
    Further, HCPs typically provide for greater conservation benefits 
to a covered species than section 7 consultations because HCPs assure 
the long-term protection and management of a covered species and its 
habitat, and funding for such management through the standards found in 
the 5-Point Policy for HCPs (64 FR 35242) and the HCP No Surprises 
regulation (63 FR 8859). Such assurances are typically not provided by 
section 7 consultations which, in contrast to HCPs, often do not commit 
the project proponent to long-term special management or protections. 
Thus, the lands covered by a consultation typically will not provide 
the extensive benefits of an HCP.
    The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species 
recovery and the creation of innovative solutions to conserve species 
while allowing for development. The educational benefits of critical 
habitat, including informing the public of areas that are important for 
the conservation of the species, are essentially the same as those that 
would occur from the public notice and comment procedures required to 
establish an HCP, as well as the public participation that occurs in 
the development of many regional HCPs. For these reasons, then, we 
believe that designation of critical habitat has little benefit in 
areas covered by HCPs.
    In contrast, the benefits of excluding HCPs from being designated 
as critical habitat are more significant. In response to other critical 
habitat proposals, we have received comments about the additional 
regulatory and economic burden of designating critical habitat. These 
include the need for additional consultation with us and the need for 
additional surveys and information gathering to complete these 
consultations. HCP applicants have also stated that they are concerned 
that third parties may challenge HCPs on the basis that they result in 
adverse modification or destruction of critical habitat.
    The benefits of excluding HCPs from critical habitat include 
relieving landowners, communities, and counties of any additional minor 
regulatory review that might be imposed by critical habitat. This 
benefit is important given our past representations that once an HCP is 
negotiated and approved by us after public comment, activities 
consistent with the plan will satisfy the requirements of section 
10(a)(1)(B) of the Act. Many HCPs, particularly large regional HCPs, 
take many years to develop and, upon completion, become regional 
conservation plans that are consistent with the recovery of covered 
species. Many of these regional plans benefit many species, both listed 
and unlisted. Imposing an additional regulatory review after HCP 
completion not only results in minor, if any, additional benefit to the 
species, it may jeopardize conservation efforts and partnerships in 
many areas and could be viewed as a disincentive to those developing 
HCPs. Excluding HCPs provides us with an opportunity to streamline 
regulatory compliance and confirms regulatory assurances for HCP 
participants.
    Another benefit of excluding HCPs is that it would encourage the 
continued development of partnerships with HCP participants, including 
States, local governments, conservation organizations, and private 
landowners, that together can implement conservation actions we would 
be unable to accomplish alone. By excluding areas covered by HCPs from 
critical habitat designation, we preserve these partnerships, and, we 
believe, set the stage for more effective conservation actions in the 
future.
    In general, then, we believe the benefits of critical habitat 
designation to be small in areas covered by approved HCPs. We also 
believe that the benefits of excluding HCPs from designation are small, 
but significant. We believe that the small benefits of inclusion, when 
weighed against the benefits of exclusion, including the benefits of 
relieving property owners of an additional layer of approvals and 
regulation, together with the encouragement of conservation 
partnerships, would generally result in HCPs being excluded from 
critical habitat designation under section 4(b)(2) of the Act.
    Given this general analysis, we expect to analyze the specific 
benefits in each particular critical habitat designation because not 
all HCPs are alike with regard to species coverage and design. Within 
this designation, we need to evaluate completed and legally operative 
HCPs in the range of the bay checkerspot to determine whether the 
benefits of excluding these particular areas outweigh the benefits of 
including them.
    The San Bruno Mountain Area HCP overlaps with the critical habitat 
designation on San Bruno Mountain. The bay checkerspot is believed to 
have been extirpated from the mountain since about 1986. The San Bruno 
Mountain Area HCP does not discuss the bay checkerspot in detail, and 
the Incidental Take Permit for this HCP currently does not include the 
subspecies. Therefore, we have not excluded the area covered by this 
HCP from the critical habitat designation. Any future Service or other 
Federal agency involvement in activities on San Bruno Mountain, such as 
habitat restoration, may require section 7 consultation if there are 
likely to be effects on bay checkerspot critical habitat.
    The Pacific Gas and Electric (PG & E) Metcalf-Edenvale/Metcalf-
Monte Vista HCP covers only about 4 ha (10 ac) in the Santa Teresa 
Hills, San Vicente-Calero, and Tulare Hill Corridor critical habitat 
units. Because the HCP expires in November 2001, and the permitted 
project is substantially complete within critical habitat areas, we are 
not excluding lands covered under this short-term HCP from our critical 
habitat proposal. We believe that no formal

[[Page 21461]]

consultation on any remaining work covered by the HCP will be 
necessary.
    In the event that future HCPs covering the bay checkerspot 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 the bay 
checkerspot 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 
provides an opportunity for more intensive data collection and analysis 
regarding the use of particular habitat areas by the bay checkerspot. 
The process also enables us to conduct detailed evaluations of the 
importance of such lands to the long-term survival of the subspecies in 
the context of constructing a biologically configured system of 
interlinked habitat blocks.
    We will provide technical assistance and work closely with 
applicants throughout the development of future HCPs to identify lands 
essential for the long-term conservation of the bay checkerspot and 
appropriate management for those lands. Preliminary HCPs are being 
discussed for listed and non-listed species within the range of the bay 
checkerspot in areas designated herein as critical habitat. These HCPs, 
coupled with appropriate adaptive management, should provide for the 
conservation of the subspecies. If these HCPs, or others, that address 
the bay checkerspot are ultimately approved, we will reassess the 
critical habitat boundaries in light of the HCPs. We will seek to 
undertake this review when an HCP is approved, but funding constraints 
may influence the timing of such a review.

Summary of Comments and Recommendations

    In the October 16, 2000, proposed rule (65 FR 61218), we requested 
all interested parties to submit comments on the specifics of the 
proposal including information, policy, treatment of HCPs, and proposed 
critical habitat boundaries as provided in the proposed rule. The first 
comment period closed on December 15, 2000. The comment period was 
reopened from February 9, 2001, to March 12, 2001, (66 FR 9683) to 
allow for additional comments on both the proposed rule and the draft 
economic analysis. Although not stated in the Federal Register 
notice of February 9, 2001, we accepted all comments received from 
October 16, 2000, to March 12, 2001, and entered them into the 
administrative record for the rule.
    We contacted all appropriate State and Federal agencies, Tribes, 
county governments, elected officials, and other interested parties and 
invited them to comment. In addition, we invited public comment through 
the publication of notices and display ads to announce the public 
hearing in the following newspapers in California: the San Mateo County 
Times and the Palo Alto Weekly. These announcements were published on 
October 20 and October 25, 2000, respectively. In these notices and the 
proposed rule, we announced the date and time of one public hearing 
that was held on the proposed rule. This hearing was in Newark, 
California, on October 30, 2000. A transcript of this hearing is 
available for inspection (see ADDRESSES section).
    When the comment period was re-opened, we sent out notices of the 
re-opening to all parties on a mailing list for the bay checkerspot. 
Additionally, we held one informational meeting on February 22, 2001, 
in San Jose, California.
    We requested four professional ecologists, who have familiarity 
with bay checkerspot butterflies and/or butterfly metapopulation 
dynamics, to peer review the proposed critical habitat designation. 
Three of the peer reviewers submitted comments on the proposed critical 
habitat designation, and one did not respond.
    One peer reviewer stated that the proposed rule was ``* * * 
formulated utilizing technically accurate and up-to-date information * 
* *'' about the bay checkerspot, and that ``* * * the criteria or 
primary constituent elements * * *'' used to identify and propose 
critical habitat ``* * * are appropriate to identify the large-scale 
boundaries of critical habitat units.'' He found that the maps and 
descriptions of the 15 proposed critical habitat units we prepared ``* 
* * accurately delimit the approximate boundaries of potential habitat 
at every location.''
    He recommended we review the status of Euphydryas editha 
populations of uncertain subspecific status in San Benito and San 
Luis Obispo counties. We note that we will continue to review and 
consider scientific data and peer consensus on the subspecific status 
of uncertain Euphydryas editha populations as it becomes 
available. We believe that the best information available at this time 
supports proceeding with this rule substantially as proposed. The Act 
provides procedures under section 4 for modifying species listings and 
critical habitat designations as may be appropriate in light of any new 
information that may be developed.
    The reviewer agreed with our assessment of the value of the Tulare 
Hill unit as a dispersal corridor for the bay checkerspot butterfly to 
connect populations that lie east and west of that unit. He contrasted 
Tulare Hill with more isolated sites such as San Bruno Mountain and 
Communications Hill, where the distance to existing bay checkerspot 
butterfly populations may be more than a butterfly normally disperses, 
and intervening areas are urbanized. We agree that the San Bruno 
Mountain site may require introduction in order to establish and 
perhaps to maintain a bay checkerspot population; however, we believe 
Communications Hill is within normal flight range of other Santa Clara 
Valley metapopulation units.
    A second peer reviewer generally supported the rule, stating that 
``* * * it does an excellent job of reviewing and interpreting bay 
checkerspot population biology, habitat requirements, and 
distribution.'' In particular, she noted that the ridge including the 
Kirby and Metcalf units [which we call Coyote Ridge] is very important 
to the persistence of the Santa Clara County metapopulation, supporting 
multiple demographic units. In her research Coyote Ridge appeared to be 
a stable ``source'' that plays a major role in sustaining the species 
in the region. The reviewer suggested that the Edgewood unit serves the 
same ``source role'' in the San Mateo County metapopulation, and stated 
that it is important to protect Edgewood as the last remainder of 
whatever unique genetic variants of the bay checkerspot may exist in 
that region.
    The second reviewer mentioned Silver Creek, Santa Teresa Hills, and 
Morgan Hill as having especially good potential for strong populations 
of the bay checkerspot butterfly, but that the Santa Teresa Hills, such 
as the ungrazed Santa Teresa County Park, may need more grazing to 
achieve its full potential as a large block of habitat. She stated that 
during her field studies, the only critical habitat unit she did not 
think had much potential as bay checkerspot habitat was Communications 
Hill, recalling it as being disturbed and grassy with few native forb-
dominated meadows. We note that we have received a recent host plant 
survey of a portion of Communications Hill that documents substantial 
areas of larval food plants and adult nectar plants (Arnold 2000).
    The third reviewer also generally supported the rule, finding it 
``carefully

[[Page 21462]]

constructed, comprehensive, and well justified. * * * Importantly, the 
critical habitat areas contain important dispersal corridors between 
serpentine patches, and account for the dynamic nature of bay 
checkerspot metapopulations, with local extinctions and 
recolonizations.''
    This reviewer made extensive comments about nitrogen deposition, 
stating that the preponderance of scientific evidence and opinion is 
that the serpentine grasslands in question are highly sensitive to 
nitrogen additions, that nitrogen deposition can lead to degradation of 
habitat, and that excess nitrogen deposition from smog may be the 
single biggest immediate threat to the bay checkerspot.
    The reviewer also stated that well-managed grazing is vital to the 
recovery of the bay checkerspot, specifically mentioning public lands 
in the Santa Teresa Hills unit as being in need of grazing to reverse 
deteriorating habitat quality. He estimated that one formerly degraded 
site in the Silver Creek unit recovered and greatly increased host 
plant and nectar plant density in about five years of grazing. We 
concur that recovery of habitat quality with grazing is feasible and 
documented.
    The reviewer stated that Communications Hill in its current state 
is unlikely to support bay checkerspot populations, but also stated 
that the proposed unit boundaries ``contain the remaining habitat.'' He 
considers the Communications Hill habitat relatively warm and dry, with 
few north-facing slopes, degraded by lack of grazing, and generally of 
low priority relative to higher quality habitats elsewhere. The Service 
believes that Communications Hill is likely to be occupied by the bay 
checkerspot, and we discuss why in detail in our responses to public 
comment regarding Communications Hill, below. The reviewer suggested 
one additional unit in the vicinity of Canada Garcia and Manzanita 
Ridge (west of Chesbro Reservoir, Santa Clara County), with more than 
100 ha (247 ac) of serpentine and a good mix of slopes and aspects. 
However, we lack adequate information about this area to justify 
including it in the critical habitat designation at this time. The Act 
provides opportunity for later revision of critical habitat designation 
through petition procedures under section 4(b)(3)(D). Further unit-
specific comments by the third reviewer are covered below.
    We received a total of 1,037 oral and written comments during the 
comment periods. In total, oral and written comments were received from 
1 State office, 5 local governments, and 1,031 private individuals or 
organizations. We reviewed all comments received for substantive issues 
and new information regarding critical habitat and the bay checkerspot. 
Of the comments we received, 1,006 supported designation, 24 were 
opposed to it, and 7 provided information or declined to oppose or 
support the designation. Similar comments were grouped into four 
general issues relating specifically to the proposed critical habitat 
determination and draft economic analysis on the proposed 
determination. These are addressed in the following summary.
Issue 1: Biological Justification, Methodology, and Regulatory Comments
    (1) Comment: One commenter stated that the Service should 
concentrate its critical habitat efforts for the bay checkerspot on 
those sites where the bay checkerspot exists and which, therefore, 
truly provide potential conservation benefits to the subspecies.
    Our Response: We did concentrate on occupied sites, and 
have only included unoccupied sites where they are essential to the 
conservation of the subspecies. The unoccupied sites are essential, as 
described in the bay checkerspot's Recovery Plan (Service 1998), 
because of the metapopulation dynamics exhibited by the bay 
checkerspot, and because they are representative of the historic 
geographical and ecological distribution of the subspecies.
    (2) Comment: A commenter was concerned that the activities 
described in the proposed rule that may affect critical habitat under 
section 7 consultation were broadly defined and, combined with other 
species listings and critical habitat designations, have the net effect 
of establishing the Service as the sole arbiter of land use decisions. 
It was suggested that the Service narrow the defined activities that 
may affect critical habitat. The commenter also stated that water 
contracting and operations carried out by Federal agencies are not a 
direct or indirect cause of loss of habitat or cause for endangerment 
of the subspecies and, therefore. should not require section 7 
consultation. It was also stated that sale or lease of private property 
does not result in habitat loss and should be deleted from the rule.
    Our Response: We provide the list of activities that may 
affect critical habitat to assist Federal agencies when they review 
their actions and determine whether critical habitat may be affected. 
The list is wide-ranging because diverse Federal agencies have broad 
responsibilities under the Act to protect and conserve listed species 
and critical habitat. The list in no way conveys land use jurisdiction 
to the Service. The trigger for section 7 consultation is whether a 
Federal action may affect a listed species or critical habitat. Federal 
water contracts and operations that meet this criterion are required to 
consult. Sales or leasing of property will only be subject to 
consultation on critical habitat when a Federal agency is funding, 
authorizing, or carrying out the action, and the sale or lease may 
affect critical habitat.
    (3) Comment: One commenter said that if the Service is 
going to use fragmentation as a reason for designating critical habitat 
(Background section), it should develop a quantitative assessment of 
how much fragmentation has taken place. Are the urban developments 
replacing woodlands, chaparral, or other habitats between areas of 
serpentine grassland a detriment or a benefit to the bay checkerspot? 
These developments may be a detriment, because of reduced resting area, 
increased obstacles, and pesticide; however, they could be a benefit by 
reducing predatory birds. The commenter also asked the Service to 
consider and insert why butterflies may be avoiding wooded or scrub 
habitats, as this may be a predator avoidance behavior.
    Our Response: A quantitative analysis of habitat 
fragmentation is not required to designate critical habitat, and is 
beyond the scope of this rulemaking. It is not known why bay 
checkerspot butterflies appear to avoid wooded or scrub habitats. We 
are not aware of any scientific reports of bay checkerspots exhibiting 
predator avoidance behavior.
    (4) Comment: One commenter said the indirect effects of 
added nitrogen deposition from increased automobile traffic on plant 
community structure need to be addressed. Concerns about the effects of 
nitrogen deposition on the bay checkerspot were also expressed by a 
peer reviewer.
    Our Response: Nitrogen oxides from increased automobile 
traffic contribute to excess nitrogen deposition on surrounding 
habitats. Nitrogen deposition and its effects are briefly addressed in 
the Background section. We agree that scientific studies, such as those 
summarized in our Recovery Plan (Service 1998), show that automobiles 
and many other air pollution sources produce excess nitrogen oxides. A 
recent study found that nitrogen deposition from air pollution on 
Coyote Ridge, which includes the Kirby, Metcalf, and Silver Creek 
units, is already likely to be at levels adversely affecting serpentine 
plant community

[[Page 21463]]

structure, with negative effects on the bay checkerspot (Weiss 1999). 
We have modified the list of activities that may affect critical 
habitat in the section 7 Consultation section to address excess 
nitrogen deposition more clearly, by listing deposition as well as 
application of fertilizers, pollutants, and other chemicals. In ongoing 
consultation and discussions with the Corps of Engineers, the Federal 
Highway Administration, the City of San Jose, and the County of Santa 
Clara, we are currently seeking to address the risk that excess 
nitrogen deposition poses to the bay checkerspot butterfly.
    (5) Comment: One commenter said that a higher proportion of 
the outcrops on the peninsula than in Santa Clara County might 
reasonably be proposed for critical habitat.
    Our Response: We are aware of, and considered, several 
serpentine outcrop areas on the San Francisco peninsula when developing 
the proposed rule. However, the remaining undeveloped area of each of 
these sites is small, the topographic diversity is generally poor, and 
most are degraded and exposed to significant threats, such as lying 
directly adjacent to an eight-lane freeway. All are considered to have 
been unoccupied by the bay checkerspot for one or more decades.
    (6) Comment: One commenter asked what percentage of total 
bay checkerspot habitat is included in the critical habitat designation 
and how much area outside this designated area is likely to contain bay 
checkerspot.
    Our Response: We do not currently have comprehensive 
figures on the total area or location of bay checkerspot habitat or the 
status of all bay checkerspot populations. In our estimation, this 
critical habitat designation includes the majority of remaining bay 
checkerspot habitat in Santa Clara and San Mateo counties, and an even 
higher proportion of currently existing bay checkerspot populations. 
However, bay checkerspot populations and suitable habitat do exist 
outside of designated critical habitat. For example, bay checkerspot 
butterflies exist in a locality on serpentine soils near Uvas Reservoir 
in Santa Clara County, and at several other serpentine outcrops west of 
the foothills of the Santa Clara Valley. We did not include these areas 
in critical habitat because available data do not indicate they are 
essential to the conservation of the subspecies, or because we lack 
sufficient information on the localities to make a determination.
    (7) Comment: One commenter said that if assessor's parcel 
numbers were identified or assessor's maps were used to identify parcel 
ownership, then information on land use on those parcels would also be 
available. The designation of critical habitat appears to have skipped 
an important part of the analysis and this information should be 
included and reviewed.
    Our Response: We did not use assessor's parcel maps in 
developing our designation. Instead, subsequent to the bay checkerspot 
critical habitat proposal on October 16, 2000 (65 FR 61218), the County 
of Santa Clara sent us a list of property owners potentially interested 
in the designation. We contacted these landowners by mail and provided 
them the opportunity to comment about the proposed rule and draft 
economic analysis. Several landowners commented on these two documents 
and provided information that helped us refine our final critical 
habitat designation.
    (8) Comment: Several commenters felt that the critical 
habitat designation should encourage viable grazing activities.
    Our Response: We agree that sustainable grazing practices 
are generally compatible with bay checkerspot habitat and conservation, 
and that in some areas or at certain times the removal of grazing may 
actually be a threat. The rule states this in the Background and the 
Effects of Critical Habitat Designation sections.
    (9) Comment: A commenter asked what types of development 
would typically be allowed in critical habitat areas, what would be the 
threshold that would trigger a Federal permit, what Federal agencies 
would be involved in issuance of these permits, to which agencies would 
the county refer development applications, and what typical mitigation 
measures would be required in a development proposal to ensure adequate 
habitat protection.
    Our Response: There is no such thing as a Federal permit 
for development in critical habitat units. Critical habitat identifies 
specific areas that have the physical and biological features that are 
essential to the conservation of a listed species, and that may require 
special management considerations or protection. Federal agencies are 
required to consult with us only if an action they are authorizing, 
funding, or carrying out, in whole or in part, may affect critical 
habitat. We do not believe any new county procedures for critical 
habitat would be required beyond what the county should already have in 
place to protect the threatened bay checkerspot butterfly. Refer to the 
section above that discusses section 7 or the Regulatory Planning and 
Review and Regulatory Flexibility Act sections under Required 
Determinations below for more information as to what potential Federal 
agencies may initiate a section 7 consultation and the types of 
activities that may be involved.
    (10) Comment: One commenter asked why we had proposed so 
many contiguous units. He recommended a single unit should be proposed 
for the Coyote Ridge area.
    Our Response: These units have distinct bay checkerspot 
populations and are connected by dispersal habitat. Separate units 
allow us to evaluate the effects resulting from any Federal actions on 
unit populations individually, rather than lumping them all together.
    (11) Comment: One commenter requested that information on 
the distances the Edgewood Park/Triangle, Jasper Ridge, and San Bruno 
Mountain units are from other units be provided.
    Our Response: We added distance information to the 
narrative discussion of these units. Please see that section.
    (12) Comment: One commenter stated that the Service should 
provide quantitative or qualitative measures for the primary 
constituent elements. The commenter proposed additions to and omissions 
from the primary constituent elements, adding: minimum size areas such 
as at least 1.6 ha (4 ac), north-facing serpentine slopes with dense 
stands of Plantago erecta, a diversity of north and nearby 
south- and west-facing slopes, at least 152 m (500 ft) in elevation, 
and serpentine soil; and omitting pollinators, stable holes, or cracks 
in soil, and wetlands.
    Our Response: The ``may affect'' criterion that triggers 
Federal agencies to consult under section 7 of the Act is a broad, 
qualitative standard. We believe that precise quantitative standards 
for habitat are unnecessary and would overstate the scientific 
understanding of the bay checkerspot, its environments, and its needs. 
For example, Plantago erecta densities vary greatly from year 
to year, and what bay checkerspot larvae need for a ``dense'' stand of 
Plantago erecta has not been documented. We have reviewed and 
made alterations in the wording of the primary constituent elements 
designation, and we believe the final language suitably captures the 
needs of the subspecies in a manner that will be useful to Federal 
agencies in determining whether actions they fund, authorize, or carry 
out may affect critical habitat.
    (13) Comment: One commenter felt some of the primary 
constituent elements were either difficult to measure, or are 
considered generally

[[Page 21464]]

unimportant for the subspecies, such as wetlands.
    Our Response: We provide justification for the primary 
constituent elements stated above (see Background section). We also 
provided citations stating the importance of wetlands to the bay 
checkerspot. For example, the article cited regarding occasional 
wetland use by bay checkerspot (Launer et al. 1993) is co-
authored by six well-known ecologists and biologists, and states ``our 
observations are consistent with the hypothesis that (bay checkerspot) 
butterflies are visiting moist areas in order to replenish essential 
nutrients or water expended during mating, gamete (egg or sperm) 
production, or general metabolism.'' They go on to say that local 
population persistence may be enhanced by moist areas, and that canyon 
bottoms and moist areas may need to be considered in conservation 
planning for the bay checkerspot.
    (14) Comment: One commenter objected that the size of 
patches of host plants and the average density of Plantago erecta 
are not provided for any of the units, even though data exist for 
many. The minimum patch size of Plantago erecta necessary to support a 
population of bay checkerspot should also be provided.
    Our Response: While we would be interested in reviewing the 
data on Plantago erecta referred to in the comment, 
Plantago erecta is an annual plant whose year-to-year abundance 
is strongly affected by abiotic and biotic environmental conditions. As 
such, information on its present abundance is not necessarily a good 
indicator of conditions next year or over the long run. Regarding the 
minimum amount of Plantago erecta needed to support a 
population of bay checkerspot, we are not aware of any studies in the 
literature of what this amount might be. Also, the mobility and 
metapopulation dynamics of the bay checkerspot would need to be 
considered in evaluating the relevance of the size of any particular 
patch of food plants.
    (15) Comment: One commenter asked whether the Service will 
require all of the proposed primary constituent elements to be present, 
or only one or two to qualify a site as critical habitat.
    Our Response: We clarified the language regarding the 
primary constituent elements in the final rule (see the Primary 
Constituent Elements section of this rule). All areas within the legal 
descriptions are considered critical habitat except for existing 
manmade features and structures, such as buildings, roads, railroads, 
and urban development. All critical habitat areas contain one or more 
of the primary constituent elements.
    (16) Comment: A commenter stated that many farmers and 
ranchers are concerned that their current agricultural practices could 
be impacted. They fear cropping patterns, water conservation, and other 
practices may be limited with the critical habitat designation because 
these practices may now impact the bay checkerspot.
    Our Response: With the changes made from the proposed rule, 
very little, if any, crop land remains within the critical habitat 
boundaries. Normal ranching practice will be unaffected by bay 
checkerspot critical habitat designation.
    (17) Comment: A commenter representing certain landowners 
in the area of the proposed Kalana Hills unit said substantial areas 
were included within the borders of the proposed critical habitat area 
that clearly lack any of the primary constituent elements for the bay 
checkerspot. For instance, the Service included area that is non-
serpentine and presently in cultivation in Kalana Hills unit.
    Our Response: There is no requirement that all of the area 
within critical habitat boundaries support the primary constituent 
elements; to the contrary, critical habitat regulations explicitly 
state that intervening or surrounding areas not capable of supporting 
the subspecies may be included within designated critical habitat for 
purposes of describing a readily identifiable boundary and providing 
adequate consideration to a spatially complex mix of area with and 
without habitat (50 CFR 424.12(c), (d)). Furthermore, space for 
dispersal between habitable areas is a primary constituent element of 
bay checkerspot critical habitat. Nevertheless, within these 
requirements under the Act and with more detailed information provided 
during the comment period, we have modified the Kalana Hills unit 
boundary, eliminating over 80 ha (200 ac) of agricultural lands lacking 
the primary constituent elements from the unit.
    (18) Comment: Many commenters mentioned possible benefits 
of designating critical habitat. Items suggested include facilitating 
proper evaluation of development proposals and plans, helping with 
acquiring more lands to be protected, increasing the chances of funding 
of scientific projects, and furthering the development of an HCP for 
Santa Clara County.
    Our Response: While none of these items are required by 
critical habitat, we acknowledge that critical habitat designation can 
serve as an important public information function. Non-Federal parties 
may also elect to use critical habitat maps to inform their decision-
making, direct funding, or guide large-scale planning and conservation 
efforts. Critical habitat designation does not set aside lands or funds 
to acquire lands.
    (19) Comment: One commenter stated that it is important 
that the Service use the Act to exercise control over Federal projects 
and analyze the direct and indirect impacts on the bay checkerspot, 
especially for those projects that only indirectly impact the bay 
checkerspot and its habitat.
    Our Response: We, and other Federal agencies, are required 
under the Act to consider all effects, direct and indirect, to listed 
species and critical habitat of actions subject to Federal 
authorization, funding, or control, including the indirect effects of 
those actions.
    (20) Comment: One commenter believed that it is important 
for the Service and the U.S. Department of Agriculture's Natural 
Resource Conservation Service (NRCS) to coordinate on use of plants for 
landscaping of projects.
    Our Response: If the NRCS is placing, funding, or 
recommending the placement of plants in or near bay checkerspot 
critical habitat, it must consider whether its actions may affect the 
subspecies or critical habitat. We are prepared to consult informally 
or formally with NRCS on their plant recommendations.
    (21) Comment: One commenter stated that critical habitat 
designation will facilitate proper evaluation of development proposals 
and plans. One commenter stated the Service inaccurately downplayed the 
difficulty of the normal regulatory process and that the critical 
habitat designation requires additional regulatory review and analysis 
under State and local laws. The commenter stated that this should be 
acknowledged in the rule.
    Our Response: Critical habitat designation does not provide 
for a wholesale environmental evaluation of proposed development 
projects. If a Federal agency funds, authorizes, or carries out an 
action that may affect critical habitat for the bay checkerspot, the 
Act requires that the agency consult with us under section 7 of the 
Act. For a project to affect critical habitat, it must affect the 
habitat features important to the bay checkerspot, which are defined in 
the regulation section in this final rule. Projects lacking a Federal 
nexus do not require any additional regulatory review and analysis 
under Federal laws, and we are not aware of any additional regulatory 
review and analysis under

[[Page 21465]]

State or local laws for designated critical habitat.
    (22) Comment: A commenter stated that the section on 
Relationship to Habitat Conservation Plans does not explain a benefit 
to the Santa Clara Valley Water District or to the subspecies if the 
District develops an HCP. He recommended we rewrite the section to 
establish good linkage to the benefits to the subspecies and the use of 
HCPs.
    Our Response: HCPs reduce conflicts between listed species 
and the economic use or development activities of a particular piece of 
land. By developing an HCP, an individual, agency, or organization can 
reduce the burden of the Act by providing an efficient mechanism for 
compliance with it, while at the same time, providing for the 
conservation of one or more species. One of the great strengths of the 
HCP process is its flexibility, as they can vary greatly in size and 
scope. Each HCP is unique, with its own set of issues and objectives.
    As mentioned in the Relationship to Habitat Conservation Plans 
section, section 4(b)(2) of the Act allows us broad discretion to 
exclude from critical habitat designation areas where the benefits of 
exclusion outweigh the benefits of designation, provided the exclusion 
will not result in the extinction of the species. We believe that in 
most instances, the benefits of excluding HCPs from critical habitat 
designations will outweigh the benefits of including them. For a 
species, an approved HCP would provide certain measures to benefit the 
species and its habitat. For the landowner, it would ensure that no 
additional land use restriction or financial compensation would be 
required for the term of the permit.
    Our rationale for excluding HCPs is provided in the Relationship to 
Habitat Conservation Plans. For additional information regarding the 
specifics of developing an HCP, please contact our Sacramento Fish and 
Wildlife Office (see ADDRESSES) section.
Issue 2: Legal and Procedural Comments
    (23) Comment: The Service failed to consult with citizens 
affected by the designation during preparation of the proposed rule and 
gave deference to environmental groups.
    Our Response: Following the publication of the proposed 
critical habitat determination on October 16, 2000, we opened a 60-day 
comment period, which closed on December 15, 2000. We held one public 
hearing on October 30, 2000, and one public information meeting on 
February 22, 2001. We conducted outreach by notifying affected elected 
officials, local jurisdictions, interested groups, and property owners. 
We conducted much of this outreach through legal notices in regional 
newspapers, telephone calls, letters, and news releases faxed and/or 
mailed to affected officials, local jurisdictions, and interest groups, 
and publication of the proposed determination and associated material 
on our Regional Internet page. We announced the availability of the 
draft economic analysis in the Federal Register on February 9, 
2001, and opened a public comment period from February 9, 2001, to 
March 12, 2001, to allow for comments on the draft economic analysis 
and additional comments on the proposed determination itself. We 
provided notification of the draft economic analysis through telephone 
calls, letters, and news releases faxed and/or mailed to affected 
officials, local jurisdictions, and interest groups. Due to the court 
ordered deadline, we were not able to reopen the comment period a third 
time. We prepared the proposed and final rules based upon the best 
scientific and commercial information available to us from all sources 
at the time. We reviewed and treated, with equal weight, all of the 
oral and written comments received from various parties, regardless of 
their affiliation. Also, see our response to comment 7.
    (24) Comment: Several commenters requested that the 
proposal be withdrawn and reissued. One commenter stated the withdrawn 
proposal should be redrafted after completion of the economic analysis. 
Another commenter stated that withdrawal and reissuance of the proposal 
was needed to be in compliance with the Act and the Administrative 
Procedure Act (APA).
    Our Response: We have complied with the APA and Act during 
this rulemaking. We prepared and published a proposed rule and a draft 
economic analysis and solicited comments from private parties and 
public agencies on both documents. We reviewed all comments received 
either in writing or at public hearings and have responded to these 
comments in the preparation of this final rule. Where site-specific 
documentation was submitted to us providing a rationale as to why an 
area should not be designated critical habitat, we evaluated that 
information in accordance with the definition of critical habitat 
pursuant to section 3 of the Act and made a determination as to whether 
modifications to the proposal were appropriate. While not actually 
deleting any of the proposed critical habitat areas originally 
proposed, we changed the boundaries of certain critical habitat areas 
and excluded lands from the final designation that we determined to be 
nonessential to the conservation of the bay checkerspot. We also 
complied with the District Court's order, which required us to make a 
final decision on critical habitat for the bay checkerspot by April 20, 
2001.
    (25) Comment: One commenter stated that the public hearing 
location chosen by the Service in Newark, California, limited public 
input compared to having a public hearing closer to property owners 
affected by the critical habitat designation. Another commenter 
requested the Service hold a public hearing in San Jose to address 
local comments and questions.
    Our Response: We recognize that the location selected for a 
public hearing may be more problematic for some individuals who may 
want to attend than another location. In this case, we attempted to 
select a central location for the public hearing that was roughly 
equally accessible to all parties potentially interested in the 
proposed critical habitat designation, including parties from San 
Francisco and the East Bay, south to San Martin and southern Santa 
Clara County; so we held the public hearing in Alameda County. In 
addition to the public hearing, we held a public information meeting in 
San Jose, Santa Clara County, and the comment period was re-opened from 
February 9 to March 12, 2001. Due to the time constraint under the 
court order, we could schedule only one public hearing in Newark, 
California, on October 30, 2000.
    (26) Comment: Several commenters requested the Service to 
reopen the comment period for a sufficient time period to allow 
meaningful comment on the proposed designation or the economic 
analysis.
    Our Response: While we may have preferred to extend or 
reopen the comment period, if requested, we have complied with the 
regulations under 50 CFR 424.16(c) (2) and (3) where it states that we 
shall have the comment period open for at least 60 days and we shall 
hold one public hearing. Given the constraints imposed by the Court, we 
made an effort to exceed our statutory obligations. Following the 
publication of the proposed critical habitat determination on October 
16, 2000, we opened a 60-day comment period which closed on December 
15, 2000. We conducted outreach by notifying affected elected 
officials, local jurisdictions, interested groups, and property owners. 
We conducted much of this outreach through legal notices in

[[Page 21466]]

regional newspapers, telephone calls, letters, and news releases faxed 
and/or mailed to affected officials, local jurisdictions, and interest 
groups, and publication of the proposed determination and associated 
material on our Regional Internet page. We announced the availability 
of the draft economic analysis in the Federal Register on 
February 9, 2001, and re-opened the public comment period from February 
9, 2001, to March 12, 2001, to allow for comments on the draft economic 
analysis as well as additional comments on the proposed determination 
itself. During this time, we also held one informational meeting. We 
provided notification of the draft economics analysis through telephone 
calls, letters, and new releases faxed and/or mailed to affected 
elected officials, local jurisdictions, property owners, and interest 
groups. Since this rule is under a court ordered deadline, we were not 
able to reopen the comment period a third time. We believe that we 
provided the interested parties sufficient time to comment on this rule 
and we conducted sufficient outreach on this notice.
    (27) Comment: Several commenters stated that the Service 
violated the National Environmental Policy Act of 1969 (NEPA) by 
failing to prepare an Environmental Impact Statement for the 
designation of critical habitat for the bay checkerspot butterfly.
    Our Response: We have determined that an Environmental 
Assessment and/or an Environmental Impact Statement as defined by NEPA 
need not be prepared in connection with regulations adopted pursuant to 
section 4(a) of the Act as amended. We published a notice outlining our 
reason for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244).
    (28) Comment: Three commenters said that in order to comply 
with the statutory definition of critical habitat, the Service should 
specifically exclude those portions of the proposed designation that 
are not essential to the conservation of the subspecies in the final 
rule.
    Our Response: We have determined that the areas designated 
as critical habitat within this final rule are essential to the 
conservation of the bay checkerspot. With improved information since 
the proposed rule, however, we did exclude lands that are not essential 
to the conservation of the bay checkerspot in this final rule from five 
units.
    (29) Comment: A commenter stated that only the four areas 
originally proposed as critical habitat in 1984 (Edgewood, Jasper 
Ridge, San Bruno Mountain, and Kirby) should be considered, because 
critical habitat designations should be based only on bay checkerspot 
occupancy, information about the subspecies and habitats, and economic 
considerations existing ``at the time of listing.''
    Our Response: We did not designate critical habitat at the 
time of listing because we found that it was not determinable at that 
time. The courts have now ruled we must finalize a critical habitat 
determination for the subspecies. Restricting our consideration of 
critical habitat to what was known about the subspecies in 1984 (the 
first proposed rule) or 1987 (the time of listing) would return us to 
the situation in which we found critical habitat undeterminable, and 
would ignore the intervening 16 years of accumulation of extensive 
scientific data about the bay checkerspot. We are required by the Act 
(sections 4(b)(2) and 4(b)(6)(C)(ii)) to base our determination on the 
best scientific data available at the present moment of critical 
habitat designation.
    (30) Comment: One commenter stated that the rule does not 
provide sufficient information on which a critical habitat 
determination can be premised. The proposed designation is not properly 
supported by the best scientific and commercial data available. The 
Service makes numerous and varied unsupported assertions regarding the 
biology and habitat requirements of the bay checkerspot. In proposing 
several ``primary constituent elements'' of critical habitat for the 
bay checkerspot, the Service offers no evidentiary support for the 
elements chosen (except in isolated instances). The Service failed to 
specify what lands are ``occupied'' based on best scientific data 
available.
    Our Response: The descriptions of the primary constituent 
elements for the bay checkerspot are based on a compilation of data 
from peer reviewed published literature, unpublished or non-peer 
reviewed survey or research reports, the Recovery Plan (Service 1998), 
and biologists knowledgeable about the subspecies and its habitat. The 
primary constituent elements, as described, represent our best estimate 
of those habitat features that are essential to the subspecies. In our 
response to specific comments, and in other pertinent areas, we have 
listed citations where it is necessary or appropriate. Also, a copy of 
all supporting documentation used in the development of this 
determination is in the administrative record and available for 
inspection at the Sacramento Fish and Wildlife Office (see 
ADDRESSES section).
    (31) Comment: One commenter stated the critical habitat 
designation for the bay checkerspot is based on the wrong standard 
(i.e., a ``recovery'' standard) by including suitable and potential 
habitat that the Service deems is useful for the subspecies' recovery. 
The commenter stated that this ``recovery'' standard is much broader 
than the standard that Congress contemplated in enacting the Act and 
subsequent amendments.
    Our Response: We have used the correct standard for 
critical habitat as defined in section 3(5)(A) of the Act--(i) the 
specific areas within the geographic area occupied by a species, at the 
time of listing 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. The 
term ``conservation'' as defined in section 3(3) of the Act, means 
``the use of all methods and procedures which are necessary to bring 
any endangered species or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary'' (i.e., 
the species is recovered and removed from the list of endangered and 
threatened species). The Recovery Plan for the bay checkerspot provides 
a description of habitat attributes that are essential to the survival 
and recovery of the subspecies (Service 1998).
    (32) Comment: One commenter stated the Act requires the 
Service to designate adequate habitat for conservation of the 
subspecies. The Act defines conservation as recovery. Since the 
Recovery Plan (Service 1998) for the bay checkerspot identifies the 
need for populations in Contra Costa and Alameda Counties, the Service 
should add critical habitat in those counties.
    Our Response: We considered proposing critical habitat in 
Contra Costa and Alameda Counties. However, while the Recovery Plan 
(Service 1998) identifies the need to reestablish populations of the 
bay checkerspot butterfly in the east bay to fully recover the species, 
it does not identify specific areas where such populations should be 
reestablished. We lacked sufficient information to indicate which 
particular areas in the east bay are essential for the conservation of 
the species. We believe it is not appropriate to designate critical 
habitat in areas without such information. The Act provides for 
revisions to critical habitat designations

[[Page 21467]]

when necessary, and we intend to continue working with the California 
Department of Parks and Recreation and other stakeholders on 
opportunities to possibly reintroduce the bay checkerspot butterfly in 
appropriate locations in the east bay. Should these efforts identify 
additional areas that may meet the definition of critical habitat 
(i.e., areas that are both essential to the conservation of the species 
and that require special management), we will consider proposing a 
revision to this critical habitat designation at that time or when our 
resources allow.
    (33) Comment: One commenter stated that the Service failed 
to make findings required by law before including unoccupied areas as 
designated critical habitat for the bay checkerspot. The commenter said 
that the Service appears to have designated the entire geographical 
area that can be occupied by the bay checkerspot without making the 
findings required by law for making an exception to the statutory 
prohibition against making such a broad designation. Another commenter 
urged the Service to respect the Act's distinction between critical 
habitat and the geographic habitat of the bay checkerspot.
    Our Response: In proposing critical habitat for the bay 
checkerspot, we identified those areas that are essential to the 
conservation of the subspecies. The areas we proposed to designate as 
critical habitat provide all of those habitat components essential for 
the primary biological needs of the bay checkerspot described in the 
Recovery Plan (Service 1998), and defined by the primary constituent 
elements.
    The definition of critical habitat in section 3(5)(A) of the Act 
includes, ``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.'' After weighing the 
best available information, including the Recovery Plan (Service 1998), 
we conclude that the areas designated by this final rule that lie 
outside the geographic area occupied by the subspecies at the time it 
was listed are essential for the recovery of the subspecies and its 
subsequent removal from the List of Endangered and Threatened Species. 
As is stated in this final rule, we have not designated all areas 
currently occupied, potentially occupied, or historically occupied by 
the bay checkerspot as critical habitat.
    (34) Comment: One commenter stated that the Service did not 
identify and discuss the cumulative impacts of critical habitat 
designation.
    Our Response: The commenter appears to be using the term 
``cumulative impacts'' in the context of NEPA. This is not appropriate 
in determining the critical habitat needs of the listed species. We are 
required to consider the effect of the proposed government action, 
which in this case is the designation of critical habitat for the bay 
checkerspot. The appropriate baseline to use in an analysis of a 
Federal action, which in this case is the designation of critical 
habitat for the bay checkerspot, is the way the world would look absent 
the proposed regulation. Against this baseline, we attempt to identify 
and measure the incremental costs and benefits associated with the 
government action. Because the bay checkerspot is already a federally 
protected species, any effect this listing has on the regulated 
community is considered part of the baseline scenario, which remains 
unaffected by our critical habitat designation.
    (35) Comment: One commenter requested that the critical 
habitat proposal be withdrawn and reissued with more precisely 
delineated critical habitat area boundaries, including deletion of 
improperly proposed units, after completion of the economic analysis. 
The boundaries include developed areas, which are not bay checkerspot 
butterfly habitat. Two other commenters asserted that the proposed 
critical habitat boundaries were not described in sufficient detail for 
landowners to locate them precisely. One stated that the proposed 
designation failed to designate ``specific areas'' as critical habitats 
required by the Act. One commenter stated that the Service failed to 
precisely describe the lands to be designated as critical habitat and 
thus violated the notice and comment provisions of the Administrative 
Procedure Act.
    Our Response: All critical habitat boundaries were specific 
and precisely delineated in the proposed rule and were publicly 
available as text descriptions and printed maps. In addition, we 
provided the boundaries in geographic information systems (GIS) format 
to anyone who requested them. All units were properly proposed and were 
presented in detail allowing anyone with a standard topographic map to 
locate the boundary (50 CFR 424.12(c)). It should be noted that the 
precise boundaries are given in the legal descriptions at the end of 
the rule, not in the narrative comments in the preamble. The draft 
economic analysis was made available after some of the comments were 
received; all earlier commenters were provided a copy of the draft 
economic analysis and notified of the opportunity to comment again. We 
believe the information that we made available and provided to the 
public was sufficiently detailed for informed public comment.
    (36) Comment: Several commenters stated the Service avoided 
a statutory obligation to determine whether the benefits of excluding 
particular areas from critical habitat designation outweigh the 
benefits of including each area.
    Our Response: Section 4(b)(2) of the Act allows us to 
exclude from critical habitat designation areas where the benefits of 
exclusion outweigh the benefits of designation, provided the exclusion 
will not result in the extinction of the species. We base our decision 
to exclude an area from critical habitat designation on the best 
scientific data available, and taking into consideration the economic 
impact of specifying any particular area as critical habitat. We 
completed an economic analysis, and considered the results of this 
analysis and comments received on the analysis and the critical habitat 
proposal in the section 4(b)(2) weighing process. We used the section 
4(b)(2) process in evaluating whether the areas covered by the San 
Bruno Mountain and PG & E HCPs should be excluded from this critical 
habitat designation. The San Bruno Mountain HCP area was included 
because the HCP does not cover bay checkerspot butterfly, and the PG & 
E HCP area was included because the HCP is due to expire in November 
2001. These HCPs are discussed further in the Relationship to Habitat 
Conservation Plans section.
Issue 3: Site-Specific Comments
    (37) Comment: Several commenters felt that the bay 
checkerspot butterfly does not inhabit Communications Hill and, 
therefore, this unit should not be designated as critical habitat. They 
said that surveys at the site between the mid-1980s and 2000 have 
failed to locate any of the subspecies. Some commenters noted that, 
although a single bay checkerspot was observed in 1992, by a bay 
checkerspot butterfly specialist, they believed it was either 
misidentified or a transient individual. Seven commenters believed that 
there is no suitable habitat for the bay checkerspot on Communications 
Hill and it should, therefore, not be designated as critical habitat. 
Five commenters believed that the quarry on Communications Hill was not 
historic bay checkerspot butterfly habitat nor could it be restored to 
suitable habitat.
    Our Response: We do not concur with the belief that the bay 
checkerspot butterfly does not inhabit

[[Page 21468]]

Communications Hill. In the past, the bay checkerspot has been observed 
at the site, as well as both of its foodplants and adult nectar plants. 
While a number of surveys of widely varying duration and quality were 
conducted between the mid-1980s to 2000, it does not appear possible to 
definitively conclude the subspecies is not present at Communications 
Hill. This is because adequate surveys have not been conducted over the 
entire flight season in all suitable areas on Communications Hill for 
an adequate time period, and thus likely would have missed the 
subspecies if they emerged early, late, or had a short adult flight 
season. The Draft Supplemental Environmental Impact Report for the 
Communications Hill Kaufman Broad Residential Project, dated 
November 2000, stated that ``A check with biologists monitoring the bay 
checkerspot butterfly during its 2000 flight season revealed that the 
earliest adults were observed on March 10th at other locations, with 
adults being most active at most locations sometime during the week of 
March 13th. No butterflies were seen after the week of April 17th.'' 
Given the tardiness in initiating the field work in 2000, the most 
recent survey on Communications Hill may have missed adult bay 
checkerspot butterflies at the site.
    Populations of the bay checkerspot butterfly undergo dramatic 
fluctuations that may be unexpected by entomologists and other 
biologists. For example, based on the results of a survey conducted in 
1987, an entomologist concluded that a proposed residential development 
at Silver Creek would not adversely affect the bay checkerspot 
butterfly, given its ``low'' population size (Dennis Murphy in 
litt.; D. Murphy, pers. comm.). However, in the time period from 
1987 to 1990, the bay checkerspot dramatically increased the size and 
extent of their population at this location, and more comprehensive 
studies at the site determined that the serpentine habitat at that 
location was very important for the subspecies.
    The eggs, larvae, and pupae of the bay checkerspot butterfly are 
difficult to locate in the field (R. White 1986 (87)). In addition, the 
ability of larvae of a related taxa, the endangered quino checkerspot 
butterfly (Euphydryas editha quino), to become dormant during 
adverse environmental conditions (aestivate) is well documented and 
they likely are able to survive long periods of time in this state 
(Mattoni et al. 1997). In judging whether a population of the 
quino checkerspot butterfly has been extirpated, it is important to 
know that even a robust population may generate no adults at all under 
poor environmental conditions (Service 2001). It is likely the bay 
checkerspot butterfly, a subspecies of the same species, possesses this 
same life-history trait (Service 1998).
    There are numerous studies documenting that the bay checkerspot 
butterfly possesses a ``metapopulation type'' of distribution and 
population structure. A metapopulation is a network of semi-isolated 
populations with some level of regular or intermittent migration and 
gene flow among them, in which populations may disappear, but then are 
recolonized by dispersing individuals from other populations. Other 
populations of this subspecies are known from the immediate vicinity at 
Santa Teresa County Park, Tulare Hill, Silver Creek, Kirby Canyon, and 
the Morgan Hill area. The bay checkerspot butterfly also was 
intentionally released at 38 sites that contain serpentine grassland in 
Santa Clara County (Harrison 1989). It is not known if any of these 
releases resulted in the establishment of permanent populations, 
however, individuals were observed at four of the 38 sites two years 
after the releases occurred (Harrison 1989).
    Communications Hill contains all of the primary constituent 
elements of critical habitat for the bay checkerspot butterfly: open 
grassland, larval foodplants, adult nectar sources, soils derived from 
serpentinic rock, stable holes or cracks in the soil, wetlands that may 
provide moisture during times of spring drought, space for dispersal, 
and relatively varied topography (Arnold 2000). Communications Hill is 
only 3.2 km (2 mi) from the Silver Creek unit and 5 km (3 mi) from the 
Santa Teresa Hills unit, both recently documented to be occupied by the 
bay checkerspot. Both are within documented dispersal distances of the 
subspecies. The bay checkerspot seen on Communications Hill in 1992 was 
identified by an experienced biologist with extensive field research on 
the bay checkerspot. It is much more probable that this butterfly was a 
member of a low-density resident population than that it was a 
``transient,'' given that dispersal is a rare event and the chances of 
one biologist observing one transient butterfly on one day are very 
small, whereas the chances of seeing a member of a low-density resident 
population is quite reasonable.
    Therefore, given the presence of suitable serpentine habitat and 
other primary constituent elements of critical habitat on 
Communications Hill, the observation of an adult bay checkerspot 
butterfly at the site, the lack of adequate surveys for this subspecies 
that may provide data conclusively demonstrating it is not present, its 
biology, as well as the mobility of the subspecies and the presence of 
nearby populations, we believe that it is highly likely that 
Communications Hill is inhabited by the subspecies.
    In reference to the quarry, we are unaware of any specific data 
indicating if the quarry site was inhabited by the bay checkerspot 
prior or subsequent to the substantial earth-removing operations, but 
the area does contain some of the primary constituent elements 
(serpentine soils, areas of Plantago, and nectar plants). 
Efforts and experiments involving the restoration of similar, severely 
disturbed serpentine habitat for the bay checkerspot and plants have 
been underway at the sanitary landfill at Kirby Canyon for several 
years and are showing promising results.
    (38) Comment: One commenter stated that Communications Hill 
should be analyzed in terms of its connection to other proposed 
critical habitat units and the ability of the bay checkerspot butterfly 
to disperse to it over time.
    Our Response: Normal within-habitat movements by bay 
checkerspot butterflies are typically less than 150 meters (490 feet) 
between recaptures (Ehrlich 1961, 1965; Gilbert and Singer 1973). 
Harrison (1989) recaptured 5 percent of bay checkerspot butterflies at 
distances greater than 1 km (0.6 mi) from the point of release of the 
individuals marked/recaptured. However, long-distance dispersal has 
been documented as far as 7.6 km (4.7 mi) (Service 2001), and 5.6 km 
(3.5 mi) for one male, and 3.2 km (2 mi) for one female (Harrison 
1989).
    Long-distance habitat patch colonization may be achieved within a 
single season through the long-distance dispersal of individual 
butterflies, or over several seasons through stepping-stone habitat 
patch colonization events. In a study of the Morgan Hill bay 
checkerspot butterfly island-mainland type metapopulation, no 
colonizations of unoccupied habitat patches further than 4.5 km (2.8 m) 
from the source population were detected over a 10-year period 
(Harrison et al. 1988). A mathematical model, of unknown 
accuracy, predicted satellite habitat patches at a distance greater 
than 6 to 8 km (4 to 5 mi) from large source populations were not 
likely to support populations of the bay checkerspot butterfly 
(Harrison et al. 1988). Communications Hill is approximately 3 
km (2 mi) from the Silver Creek critical habitat unit, which contains 
the closest known bay checkerspot butterfly population. Therefore, we 
believe that

[[Page 21469]]

this habitat is suitable, reachable, and is used by the bay checkerspot 
butterfly, and warrants critical habitat designation.
    (39) Comment: Several commenters felt that Communications 
Hill should be deleted because the site was not mentioned in the 
Recovery Plan for the bay checkerspot butterfly.
    Our Response: Communications Hill is ranked as ``other 
current or historic localities or suitable habitat areas'' on page II-
203 of the Recovery Plan (Service 1998). In addition, the site is 
listed on Table IV-1 of the Recovery Plan as a site that is targeted 
for the protection of the bay checkerspot, the endangered Santa Clara 
Valley dudleya (Dudleya setchellii), and other species. Thus, 
we determined that this unit is essential for the conservation of the 
bay checkerspot butterfly.
    (40) Comment: The area west of State Route 87, 
Communications Hill unit, should be deleted from critical habitat 
designation. The area south of the water tanks has been developed into 
houses.
    Our Response: We requested, but did not receive, more 
precise information on the location of the developed area the commenter 
discusses. This development was begun after the 1999 SPOT satellite 
imagery we used to refine our proposed boundaries. We believe, based on 
a visit to the site vicinity, that useful habitat likely remains west 
of route 87. In the absence of specific data allowing us to redraw the 
boundary in an informed manner, and because the rule explicitly states 
that existing developed areas do not provide the primary constituent 
elements and will not be subject to consultation, we believe it is most 
appropriate to leave the boundary unchanged in this area.
    (41) Comment: A commenter stated that habitat restoration 
is needed in the Edgewood Park/Triangle unit.
    Our Response: We have sought to encourage and facilitate 
appropriate native habitat restoration efforts in this and other units, 
and will continue to do so.
    (42) Comment: We received comments stating that the 
proposed Kalana Hills unit should be eliminated entirely, because it is 
not listed as either a ``core habitat area'' or ``potential core area'' 
within the Recovery Plan (Service 1998), or because it is not certain 
to be presently occupied. If not eliminated, the commenters requested 
that the boundaries of the proposed Kalana Hills Unit should be refined 
to conform to natural land features and to a voter-approved urban 
growth boundary initiative.
    Our Response: We have modified the Kalana Hills unit 
boundary based on a site visit and specific information provided by the 
landowners and their consultant. The remaining critical habitat area 
contains substantial occupied areas of good-quality bay checkerspot 
habitat close to core areas and contributes to the Santa Clara County 
metapopulation. We, therefore, consider this area essential to the 
conservation of the bay checkerspot.
    (43) Comment: One commenter suggested we expand the Kalana 
Hills unit southward to include an area of habitat south of San Bruno 
Canyon that supports Plantago erecta and nectar plants. Another 
commenter recommended that the western boundary of the San Bruno 
Mountain unit should extend west to just before the summit area; some 
of the best remaining stands of Plantago are in large native 
grassland patches west of the western transmission line. Historical 
records along the ridgetop may not fully describe the bay checkerspot's 
distribution on San Bruno Mountain. The 500-foot contour limit also 
needs to be investigated; some grasslands below that contour may have 
Plantago stands, especially in Owl and Buckeye canyons. Also, a 
commenter suggested that the southeast boundary of the San Vicente-
Calero unit excludes a finger of serpentine with unknown habitat value. 
There is a California Department of Fish and Game Natural Diversity 
Data Base record for the bay checkerspot on a nearby serpentine outcrop 
of nearly equal size.
    Our Response: We lack adequate information about these 
areas to allow a critical habitat designation at this time. The Act 
provides opportunity for later revision of critical habitat designation 
through petition procedures under section 4(b)(3)(D).
    (44) Comment: Several commenters requested that the Service 
adjust the eastern boundary of the Kirby Unit of the critical habitat 
designation. The landowner provided specific, identifiable coordinates 
for an adjusted boundary and information confirming that the area 
excluded by their adjustment does not support the primary constituent 
elements.
    Our Response: We believe the recommended boundary changes 
to the Kirby Unit is reasonable and would not remove any useful areas 
containing primary constituent elements. We have incorporated these 
changes in the final rule.
    (45) Comment: A commenter requested that the Service change 
the Silver Creek unit, to allow development in the 340-acre portion and 
exclude development in the 240-acre preserve area as stated in the 
Service's biological opinion for the Ranch on Silver Creek project.
    Our Response: We have adjusted the boundary using 
information provided by the commenter, information present in our 
files, and based on site visits. See the narrative description of the 
unit, above, and the map and legal description of the unit, below, for 
specifics.
    (46) Comment: One commenter requested we remove 
approximately 365 ha (900 ac) actively being used as a golf course and 
a landfill in the Kirby unit from the final critical habitat 
designation. These properties have been the subject of previous 
understandings with various resource agencies including the Service. 
The landfill is highly disturbed, and the golf course is not high-
quality bay checkerspot habitat.
    Our Response: We requested but did not receive information 
from the commenter regarding the exact boundaries of the golf course. 
The final rule explicitly states that existing developed areas will not 
be subject to consultation on critical habitat because they do not 
contain the primary constituent elements, so in the absence of 
information we felt it was most appropriate to leave the unit boundary 
as proposed in this area. The landfill is ultimately to be restored to 
bay checkerspot habitat and still retains substantial habitat within 
its permitted borders, so critical habitat designation in this area 
would ensure that any Federal involvement considers bay checkerspot 
habitat. We will work with the landowner and the landfill operator to 
evaluate the status of prior biological opinions and complete further 
consultation if any is required.
    (47) Comment: A commenter noted that the northwest boundary 
of the San Felipe unit excludes some serpentine, and if deemed good 
grassland habitat, it should be included.
    Our Response: We believe, based on serpentine soils 
mapping, satellite imagery, and visits to the vicinity, that the 
excluded area referred to has been developed for housing.
    (48) Comment: A commenter stated that it is unknown whether 
any part of units 7 (Kalana Hills), 13 (San Vicente-Calero), or 14 
(Santa Teresa Hills) currently support bay checkerspots, let alone a 
large and viable persistent population. Neither the proposed rule nor 
economic analysis state how much area within the Kalana Hills unit is 
currently occupied by the bay checkerspot, and the majority of it is 
likely unoccupied.
    Our Response: Bay checkerspots have been found in all three 
units. Especially

[[Page 21470]]

considering the dramatic population swings that are normal for this 
subspecies, present population size or extent are not the only 
relevant, or even particularly important, factors in assessing the 
conservation value of a given habitat area. Each of these units has 
extensive areas of good habitat, is close to other habitat areas, has a 
record of occupation, and can serve as a ``stepping stone'' in bay 
checkerspot metapopulation dynamics, which is why the Recovery Plan 
(Service 1998) and this rule consider them essential to the 
conservation of the subspecies.
Issue 4: Economic Comments
    (49) Comment: Many commenters believed that we failed to 
properly consider the economic and other impacts of designating 
particular areas as critical habitat.
    Our Response: We disagree. We believe that the draft 
economic analysis made a reasonable attempt to identify all current and 
future planned activities within proposed critical habitat. Our draft 
economic analysis assessed potential economic impacts from critical 
habitat designation by first identifying current and future land uses 
within the proposed critical habitat. Our analysis then considered 
whether these activities were likely to involve a Federal nexus and, if 
so, the likelihood that Service biologists would want to consult on the 
activity over concern for the activity's impact on the bay checkerspot 
or its critical habitat. For activities identified by Service 
biologists as likely to cause a concern, we attempted to differentiate 
between consultations that would take place because such activities 
could jeopardize the continued existence of a listed species versus 
those that would likely take place solely because of critical habitat 
designation.
    We characterized these effects by proposed critical habitat unit 
and were able to estimate the number of likely incremental 
consultations by unit despite the uncertainties that affect generating 
reliable estimates for specific areas. It is difficult to estimate 
whether a potential future activity would require a consultation and to 
determine the degree to which critical habitat designation influences 
that outcome. Given these limitations, we were, however, able to 
develop a general estimate of the number of future consultations that 
potentially could result from the designation of the proposed rule; we 
assumed a worst case scenario for our analysis. We believe that this 
estimate, along with the characterization of activities by unit, 
provides us with enough information to make an informed decision 
concerning the designation of the final rule.
    (50) Comment: Several commenters stated that the draft 
economic analysis is flawed because it is based on an improper 
definition of occupied lands.
    Our Response: The determination of whether or not proposed 
critical habitat is within the geographic range occupied by the bay 
checkerspot is part of the biological decision-making process and lies 
beyond the scope of an economic analysis. For a discussion of the 
biological justification of why we believe the areas being designated 
are within the geographical areas occupied by the bay checkerspot, see 
our response to comments on Issue 1: Biological Justification, 
Methodology, and Regulatory Issues, above.
    (51) Comment: Commenters stated that the draft economic 
analysis underestimated impacts to the regional housing market in 
relation to northern California's current housing crisis. Specifically, 
a few commenters believed that we failed to fully recognize the cost of 
project delays to homebuilders and consumers that would result from the 
designation due to an expected increase in section 7 consultations. One 
commenter also stated that the draft economic analysis ignored various 
other financial losses homebuilders would incur as a result of an 
expected reduction in the number of housing units that would be allowed 
to be built in designated critical habitat areas. Also, several 
commenters questioned why the draft economic analysis failed to provide 
an estimate of costs associated with potential reductions in property 
values.
    Our Response: We are aware that some of the land that we 
proposed as critical habitat for the bay checkerspot butterfly faces 
significant development pressure. Development activities can have a 
significant effect on the land and the species dependent on the habitat 
being developed. We also recognize that many large-scale development 
projects are subject to some type of Federal nexus before work actually 
begins. As a result, we expect that future consultations, in part, will 
include planned and future real estate development.
    However, we believe that these resulting consultations will not 
take place solely with respect to critical habitat issues. While some 
project delays may occur out of concern for a project's impact on the 
bay checkerspot, large real estate projects are often delayed for 
numerous other reasons that include compliance with various state and 
local ordinances and zoning regulations. It would be improper to 
attribute all such changes in the scope of a development project, along 
with associated project delay costs, to critical habitat when numerous 
other factors frequently contribute to these changes. While it is true 
that development activities can adversely affect designated critical 
habitat, we believe that our future consultations regarding new housing 
development will take place because such actions have the potential to 
adversely affect a federally listed species. We believe that such 
planned projects would require a section 7 consultation, regardless of 
the critical habitat designation. Again, as we have previously 
mentioned, section 7 of the Act requires Federal agencies to consult 
with us whenever actions they fund, authorize, or carry out can 
jeopardize a listed species or adversely modify its critical habitat.
    We also recognize that in some instances, the designation of 
critical habitat could result in a distorted real estate market because 
participants may believe that land within critical habitat designation 
is subject to additional constraints. In truth, this is not the case 
because critical habitat designation for the bay checkerspot is not 
adding any extra protection, nor impacting landowners beyond that 
associated with the listing of the subspecies as threatened under the 
Act. As a result, we believe that any resulting distortion will be 
temporary and have a relatively insignificant effect on the real estate 
market as it should become readily apparent to market participants that 
critical habitat for the bay checkerspot is not imposing any additional 
constraints on landowner activities beyond those currently associated 
with the listing.
    We have also found little evidence to date to support claims by 
some developers that critical habitat designation would have 
significant regional economic impacts. In areas where critical habitat 
has been designated, economic growth has continued to grow. For 
example, a study released by the Coalition for Sonoran Desert 
Protection examined the impact of designating habitat for the cactus 
ferruginous pygmy-owl in southern Arizona (McKenney 2000). Performed 1 
year after the designation, the study found that dire predictions made 
by developers in that region have not materialized. Specifically, high-
density housing development has not slowed, the value of vacant land 
has risen, land sales have continued, and the construction sector has 
continued its steady growth.
    Similarly, in a study conducted by Oliver Houck, the author 
reviewed over

[[Page 21471]]

71,560 informal and 2,000 formal consultations conducted under the Act 
and found that only 18 projects, or 0.02 percent of the projects we 
consulted on, were ultimately terminated (Houck 1993, p. 318). 
Furthermore, of the 99 jeopardy opinions issued by the Service, the 
author found that we issued ``reasonable and prudent alternatives'' in 
nearly all of these opinions, which allowed the projects to proceed 
(Houck 1993, p. 319).
    The economic analysis estimated, for the Communications Hill unit, 
that given the City of San Jose's specific plan, the unit will include 
between 2,500 and 4,000 new residential units, additional commercial 
activities, parks, and schools. Based on this plan, the economic 
analysis estimated that between three and five large-scale developments 
may take place on this unit and assumed that each of these development 
projects could entail a section 7 consultation. The economic analysis 
noted, however, that it was not clear whether planned development would 
require a Federal permit, which then could trigger a section 7 
consultation. The economic analysis also noted that several other 
federally protected species inhabit the area, and as a result, could 
trigger section 7 consultations, assuming a Federal nexus exists, 
regardless of bay checkerspot critical habitat designation. As a 
result, the economic analysis most likely overestimated the number of 
section 7 consultations that would be attributable to critical habitat 
designation.
    We believe that the economic analysis adequately considered all the 
potential economic costs likely to be associated with potential 
development and provides sufficient information for the Secretary to 
make a determination under section 4(b)(2) of the Act.
    (52) Comment: Some commenters stated that they believed 
that we understated the cost of section 7 consultations, and that the 
findings in the draft economic analysis concerning potential associated 
real estate development costs are significant enough to warrant a 
withdrawal of these units.
    Our Response: In preparing the economic analysis, we 
estimated the potential effects from critical habitat designation 
resulting from section 7 consultations that could be attributable to 
the designation. As previously stated, we believe that many of the 
effects perceived by the public to be attributable to critical habitat 
would actually occur, regardless of critical habitat designation, 
because the bay checkerspot is a federally protected species and other 
listed species occupy some of the same habitat. This would trigger 
consultations, regardless of bay checkerspot critical habitat 
designation. Because we are attempting to estimate potential future 
effects from critical habitat designation, our estimates are based on 
potential future activities that are typical for the areas proposed for 
designation.
    In practice, the costs associated with section 7 consultations can 
vary widely depending on the activity, its scope, and areas actually 
affected. In our Addendum to the draft economic analysis, we have used 
some of the information provided by commenters to revise the expected 
section 7 consultation costs for some areas being designated. This 
revised estimate, however, is further adjusted in our Addendum to 
better estimate the allocation of the section 7 consultation cost that 
represents the incremental effect of this designation. Overall, we 
believe we have reasonably estimated the potential future impacts of 
critical habitat designation for the bay checkerspot.
    (53) Comment: We received several comments stating that the 
costs associated with including the Dairy Hill (located on the 
northeast portion of the Communications Hill unit) and Communications 
Hill project sites significantly outweighed the benefit of designating 
the sites as critical habitat.
    Our Response: 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 subspecies.
    As our economic analysis indicated there are potential economic 
costs of including this area in the final critical habitat designation, 
we considered whether it should be excluded under section 4(b)(2). The 
benefits of excluding these areas would be the avoidance of these 
additional costs, which we estimate could range up to $6.5 million over 
the next 10 years. Actual costs are likely to be significantly lower, 
given the historic presence of bay checkerspot butterflies on the site, 
the presence of other listed species, and the expected overlap of any 
measures implemented to protect these species with measures necessary 
to protect bay checkerspot butterfly habitat. In addition, much of the 
potential cost associated with section 7 consultations will already be 
required by the presence of these other listed species. Further, this 
maximum cost estimate is derived from a planning assumption that no 
habitat would be preserved within the units; the high costs are 
associated with off-site mitigation. Depending on the actual extent of 
mitigation required, and the actual final level of residential 
development within the unit, we estimate that mitigation costs 
associated with critical habitat designation for the bay checkerspot 
could range between 0.07 percent and 0.6 percent of the total value of 
future residential development within the unit.
    In contrast, the conservation benefits of including these units in 
the final designation are considerable. The Communications Hill 
critical habitat unit historically has been occupied by the bay 
checkerspot and contains all of the primary constituent elements 
essential for the conservation of the subspecies. It also represents 
the northwestern-most remnant of the Santa Clara metapopulation. Such 
warmer, lower elevation sites as this are likely to be especially 
important to the subspecies during rare episodes of great population 
increase, dispersal, gene flow, and recolonization of extirpated sites. 
Loss of the Communications Hill unit would likely preclude recovery and 
delisting of the subspecies, and could reduce or eliminate the 
viability of this metapopulation, ultimately diminishing or eliminating 
the long-term survivability of the bay checkerspot. Including the unit 
in this critical habitat designation will have important informational 
benefits, reinforcing to our Federal partners and other stakeholders 
the importance of this area to the conservation of the bay checkerspot 
butterfly in the future, with likely low overall costs. To the degree 
that the higher costs in our range of cost estimates are realized, we 
expect additional conservation benefits. That is, where increased costs 
result from avoidance of impacts that may destroy or adversely modify 
designated critical habitat, we expect real, on-the-ground benefits (in 
addition to these informational benefits) to the conservation of the 
bay checkerspot butterfly. As a result, we conclude that, even at the 
highest range of potential costs identified in our economic analysis, 
the benefits of including these areas in this final designation as 
critical habitat outweigh the possible benefits of excluding them.
    (54) Comment: We received several comments stating that the 
draft economic analysis mis-characterized the

[[Page 21472]]

potential land use activities on the Kalana Hills unit by omitting 
future real estate development.
    Our Response: According to the city of San Jose's General 
Plan, portions of the Kalana Hills unit are planned for future real 
estate development, which was overlooked in the draft economic 
analysis. Because this unit is occupied and because real estate 
development in this area lacks any clear Federal nexus, it is unlikely 
that critical habitat designation would have any significant effect. In 
this final rule, however, we significantly modified this unit to 
withdraw the majority of lands considered suitable for development, and 
we do not expect real estate development activities to be significantly 
impacted within this unit.
    (55) Comment: One commenter stated that the draft economic 
analysis failed to consider the incremental costs associated with 
additional California Environmental Quality Act (CEQA) compliance as a 
result of the critical habitat rule.
    Our Response: We disagree. Landowners in the state of 
California must comply with CEQA whether or not their land is within 
the area designated as critical habitat for a federally-listed species. 
The draft economic analysis discusses the effect that existing state 
and local regulations have on current activities in proposed critical 
habitat units. Specifically, CEQA requires identification of 
significant environmental effects of proposed projects that have the 
potential to harm the environment. The lead agency (typically the 
California State agency in charge of the oversight of a project) must 
determine whether a proposed project would have a ``significant'' 
effect on the environment.
    Review of the CEQA statute, and conversations with the California 
Resources Agency (one of the agencies responsible for administering 
CEQA), revealed that when a species is known to occupy a parcel of 
land, the designation of critical habitat alone does not require a lead 
agency to pursue any incremental actions. In the case of the bay 
checkerspot, the Recovery Plan (Service 1998) for serpentine soil 
species in the San Francisco Bay area includes a description of the 
habitat areas needed by the bay checkerspot. Impacts to such previously 
identified areas would likely result in the need for compliance with 
CEQA by project proponents. Therefore, economic impacts generated by 
CEQA on bay checkerspot habitat areas are part of the baseline and not 
attributable to bay checkerspot critical habitat designation.

Summary of Changes From the Proposed Rule

    Based on a review of public comments received on the proposed 
determination of critical habitat for the bay checkerspot butterfly, we 
reevaluated our proposed designation of critical habitat. This resulted 
in some changes that are reflected in this final determination. These 
are: (1) the exclusion of some lands where new information revealed 
that lands were not essential to the conservation of the bay 
checkerspot; (2) refining of the critical habitat boundaries; and (3) 
clarification of the primary constituent elements.
    Based on comments received, we excluded those areas where new 
information revealed that lands were not essential. This included the 
exclusion of approximately 141 ha (348 ac) of primarily agricultural 
lands from unit 7, 57 ha (141 ac) of nonserpentine lands from unit 8, 
81 ha (201 ac) of mostly residential development from unit 9, 260 ha 
(643 ac) of mostly commercial development from unit 10, and 382 ha (943 
ac) of developed areas and graded lands permitted for development from 
unit 12.
    These changes resulted in a reduction of approximately 923 ha 
(2,279 ac) in the critical habitat designation from the proposed rule 
to the final rule. We originally had proposed 10,597 ha (26,182 ac) of 
critical habitat for the bay checkerspot, and in this final rule, we 
are designating 9,673 ha (23,903 ac). Certain unit acreages have 
changed slightly from the proposed rule, and these reflect errors in 
rounding.

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 the 
exclusions outweigh the benefits of specifying the areas as critical 
habitat. We cannot exclude the areas from critical habitat when the 
exclusion will result in the extinction of the subspecies.
    Economic effects caused by listing the bay checkerspot as a 
federally protected threatened species, and by other statutes, are the 
baseline against which the effects of critical habitat designation are 
evaluated. The economic analysis must then examine the incremental 
economic and conservation effects and benefits of the critical habitat 
designation. Economic effects are measured as changes in national 
income, regional jobs, and household income. An analysis of the 
economic effects of the proposed bay checkerspot critical habitat 
designation was prepared (Industrial Economics, Incorporated, 2001) and 
made available for public review (February 9 to March 12, 2001; 66 FR 
9683). The final analysis, which reviewed and incorporated public 
comments, concluded that no significant economic impacts are expected 
from critical habitat designation above and beyond that already imposed 
by listing the bay checkerspot.
    The most likely economic effects of critical habitat designation 
are on activities funded, authorized, or carried out by a Federal 
agency. The analysis examined the effects of the proposed designation 
on: (1) re-initiation of section 7 consultations; (2) length of time in 
which section 7 consultations are completed; and (3) new consultations 
resulting from the determination. The draft economic analysis reported 
that, although difficult to assess because the bay checkerspot's 
critical habitat overlapped with the habitat of other federally 
protected species, impacts could be as high as $1.2 to $6.5 million 
dollars over the next 10 years.
    Potential impacts that were identified included consultations with 
Federal agencies in the Communications Hill unit regarding proposed 
real estate development projects. Specifically, the draft economic 
analysis estimated that between three and five section 7 consultations 
could occur based on the City of San Jose's estimate and with costs up 
to a total of $50,000 for all the consultations and with associated 
mitigation costs that could range between $0.96 and $3.74 million, 
based on a previous consultation recently completed in the area for 
another large-scale development project. However, based on comments we 
received on the draft analysis, we recognized that the draft may have 
underestimated the consultation costs on Communications Hill (due to 
the large scale of development planned for the hill) and thus revised 
the estimates of consultation costs in the final addendum to the 
economic analysis. The revised estimates for these consultation costs 
are $50,000 per consultation (estimated as 50 percent of the maximum 
suggested cost of $100,000 to account for the impact of additional 
listed species within the unit) or a total of $250,000 for the five 
potential consultations. However, due to the existence of other 
federally

[[Page 21473]]

protected species within the area which could trigger consultations 
regardless of bay checkerspot critical habitat, much of the survey work 
associated with the consultation, and the consultation itself would 
already be required. Therefore, a substantial portion of the costs 
associated with these consultations most likely would also be 
attributable to factors or species other than the bay checkerspot 
critical habitat designation, and thus we believe that this estimate 
most likely overstates the actual impacts of this critical habitat 
designation.
    We believe that any project that would adversely modify or destroy 
critical habitat would also jeopardize the continued existence of the 
species, and that reasonable and prudent alternatives to avoid 
jeopardizing the species would also avoid adverse modification of 
critical habitat. Within the analysis, we determined there would be 
costs associated with the designation, however, these costs were 
determined to be negligible, except as discussed above. Thus, little 
regulatory burden or associated significant additional costs would 
accrue because of critical habitat above and beyond that resulting from 
listing. Our economic analysis does recognize that there may be costs 
from delays associated with reinitiating completed consultations after 
the critical habitat designation is made final. There may also be 
economic effects due to the reaction of the real estate market to 
critical habitat designation, as real estate values may be lowered due 
to perceived increase in the regulatory burden. However, we believe 
this impact will be short-term.
    In summary, in our economic analysis, we estimate that, over the 
next 10 years, the total cost of this rulemaking will range between 
$1.2 and $6.5 million. This estimate is primarily attributable to costs 
associated with section 7 consultations and potential modifications to 
future residential and commercial real estate development projects. The 
high end of the estimate was a result of assuming no on-site habitat 
were preserved in the Communications Hill unit and 312 acres of off-
site habitat would need to be purchased to mitigate this loss. However, 
the analysis compared this cost to the estimated value of the 
residential development proposed to be built within the unit. Depending 
on the extent of mitigation required, and the actual final level of 
residential development within the unit, we estimate that mitigation 
costs associated with critical habitat designation for the bay 
checkerspot could range between 0.07 percent and 0.6 percent of the 
total value of future residential development within the unit. A copy 
of the final economic analysis and description of the exclusion process 
with supporting documents are included in our administrative record and 
may be obtained by contacting the Sacramento Fish and Wildlife Office 
(see ADDRESSES section).

Required Determinations

1. Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a significant regulatory action and has been reviewed by the Office 
of Management and Budget (OMB).
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. The bay 
checkerspot butterfly was listed as a threatened subspecies in 1987. In 
fiscal years 1987 through 2000, the Sacramento Fish and Wildlife Office 
conducted, or is in the process of conducting, 4 formal section 7 
consultations with other Federal agencies to ensure their actions would 
not jeopardize the continued existence of the bay checkerspot.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; the Act does not impose any restrictions through 
critical habitat designation on non-Federal persons unless they are 
conducting activities funded or otherwise sponsored, authorized, or 
permitted by a Federal agency. Section 7 requires Federal agencies to 
ensure that they do not jeopardize the continued existence of the 
species. Based upon our experience with the species and its needs, we 
conclude that any Federal action or authorized action that could 
potentially cause adverse modification of designated critical habitat 
would currently be considered as ``jeopardy'' under the Act (see Table 
2).

             Table 2.--Impacts of Bay Checkerspot Butterfly Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                         Additional activities
                                        Activities potentially affected by species      potentially affected by
      Categories of activities                         listing only                        critical habitat
                                                                                             designation 1
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially       Activities conducted by the Army Corps of by     Activities by these
 Affected 2.                          Engineers, Bureau of Reclamation,                Federal Agencies in any
                                      Environmental Protection Agency, Federal         unoccupied critical
                                      Highway Administration.                          habitat areas.
Private or other non-Federal         Activities that require a Federal action         Funding, authorization, or
 Activities Potentially Affected 2.   (permit, authorization, or funding) and may      permitting actions by
                                      remove or destroy bay checkerspot habitat by     Federal Agencies in any
                                      mechanical, chemical, or other means (e.g.,      unoccupied critical
                                      grading, discing, ripping, and tilling, water    habitat areas.
                                      diversion, impoundment, groundwater pumping,
                                      irrigation, construction, road building,
                                      herbicide application, recreational use, etc.)
                                      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 subspecies.
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.

    Accordingly, the designation of areas within the geographic range 
occupied by the bay checkerspot butterfly has little, if any, 
incremental impacts on what actions may or may not be conducted by 
Federal agencies or non-Federal entities that receive Federal 
authorization or funding. Non-Federal entities that do not have a 
Federal ``sponsorship'' of their actions are not restricted by the 
designation of critical habitat (however, they continue to be bound by 
the provisions of the Act concerning ``take'' of the species).

[[Page 21474]]

    Designation of areas of unknown occupancy as critical habitat may 
have impacts on what actions may or may not be conducted by Federal 
agencies or non-Federal entities that receive Federal authorization or 
funding. Based on our understanding of the threats to the species, the 
prohibition against adverse modification of critical habitat in areas 
of unknown occupancy is not expected to impose any additional 
restrictions to federally sponsored projects or activities occurring in 
these areas, unless we make a determination that the proposed activity 
would result in an appreciable reduction of the value of the critical 
habitat for both the survival and recovery of the bay checkerspot. As 
discussed in the final addendum to the economic analysis, we determined 
that the costs of any additional consultations and any resulting 
project modifications will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government.
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the bay checkerspot butterfly since the listing in 1987. The 
prohibition against adverse modification of critical habitat is not 
expected to impose any substantial additional restrictions to those 
that currently exist. Because of the potential for impacts on other 
Federal agencies' activities, we will continue to review this action 
for any inconsistencies with other Federal agencies' actions.
    (c) This rule 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 subspecies, and as 
discussed above, we do not anticipate that the adverse modification 
prohibition (resulting from critical habitat designation) will have any 
significant incremental effects.
    (d) OMB has determined that this rule will raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

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

    In the economic analysis, we determined that designation of 
critical habitat will not have a significant effect on a substantial 
number of small entities. As discussed under Regulatory Planning and 
Review above, and in this final determination, this rule is not 
expected to result in any restrictions in addition to those currently 
in existence. Although small entities may carry out activities within 
designated critical habitat, many of these activities lack a Federal 
nexus and therefore their impacts on critical habitat do not need to be 
considered. For those actions requiring federal funding or authority, 
we believe that the incremental impacts attributable to this rule are 
not significant for reasons explained above and in the draft economic 
analysis. Therefore, we are certifying that the designation of critical 
habitat for the bay checkerspot butterfly will not have a significant 
economic impact on a substantial number of small entities. As indicated 
in Table 1 (see Critical Habitat Designation section), we designated 
property owned by State and 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 Corps of Engineers under section 404 of the Clean Water Act;
    (2) Regulation of water flows, execution of water contracts, water 
delivery, transfer of Federal project water, damming, diversion, and 
channelization by the Bureau of Reclamation or the Corps of Engineers;
    (3) Pesticide and air quality regulation by the Environmental 
Protection Agency; and
    (4) Funding and regulation of road construction by the FHWA.
    Many of the activities sponsored by Federal agencies within 
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 
already currently required to comply with the 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 restrictions 
concerning take of the subspecies remain in effect, and this final rule 
will have no additional restrictions.

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

    In the economic analysis, we determined that designation of 
critical habitat would not 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; and (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. Please refer to the final economic analysis for a 
discussion of the effects of this determination.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) 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 subspecies, and few, if any, further restrictions are anticipated.
    (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 actions. The rule will not increase or decrease 
the current restrictions on private property concerning take of the bay 
checkerspot butterfly. Due to current public knowledge of the 
subspecies' protections, the prohibition against take of the subspecies 
both within and outside of the designated areas, and the fact that 
critical habitat provides no substantial incremental restrictions, we 
do not anticipate that property values will be affected by the critical 
habitat designation. While real estate market values may temporarily 
decline following designation, due to the perception that critical 
habitat designation may impose additional regulatory burdens on land 
use, we expect any such impacts to be short term.

[[Page 21475]]

    Additionally, critical habitat designation does not preclude 
development of HCPs and issuance of incidental take permits. Owners of 
areas that are included in the designated critical habitat will 
continue to have the opportunity to utilize their property in ways 
consistent with the survival of the bay checkerspot butterfly.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of this critical habitat designation with, appropriate 
State resource agencies in California. The designation of critical 
habitat in areas currently occupied by the bay checkerspot butterfly 
imposes no substantial additional restrictions to those currently in 
place and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas essential to the conservation of 
the subspecies are more clearly defined, and the primary constituent 
elements of the habitat necessary to the survival of the subspecies are 
specifically identified. While making 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 
consultations 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 meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We designated 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 the bay checkerspot butterfly.

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

    This rule references permits for HCPs which contain information 
collection activity. The Fish and Wildlife Service has OMB approval for 
the collection under OMB Control Number 1018-0094. The Service may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    We determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Act as amended. We 
published a notice outlining our reason for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

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), E.O. 13175, and 512 DM 2, we understand 
that federally recognized Tribes must be related to on a Government-to-
Government basis. We are not aware of any Tribal lands essential for 
the conservation of the bay checkerspot. Therefore, we are not 
designating critical habitat for the bay checkerspot on Tribal lands.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Sacramento Fish and Wildlife Office 
(see ADDRESSES section).

Authors

    The primary authors of this rule are the staff of the Sacramento 
Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we 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. Amend Sec. 17.11(h), by revising the entry for ``Butterfly, bay 
checkerspot,'' under ``INSECTS,'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                  Vertebrate population
-----------------------------------------------------------     Historic range      where endangered or     Status       When      Critical     Special
            Common name                 Scientific name                                  threatened                     listed      habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                 *                  *                   *                   *                  *                   *                   *
              Insects
 
                 *                  *                   *                   *                  *                   *                   *
Butterly, bay checkerspot..........  Euphydryas editha      U.S.A. (CA)..........  Entire...............          T         288    17.95(i)          NA
                                      bayensis.
 
                 *                  *                   *                   *                  *                   *                   *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.95(i) by adding critical habitat for the bay 
checkerspot butterfly (Euphydryas editha bayensis) in the same 
alphabetical order as this subspecies occurs in Sec. 17.11(h), to read 
as follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.

Bay Checkerspot Butterfly (Euphydryas editha bayensis)

    1. Critical habitat units are depicted for San Mateo and Santa 
Clara Counties, California, on the maps below.

[[Page 21476]]

    2. Within these areas, the primary constituent elements are 
those habitat components that are essential for the primary 
biological needs of foraging, sheltering, breeding, maturation, and 
dispersal. The primary constituent elements are one or more of the 
following: stands of Plantago erecta, Castilleja exserta, or 
Castilleja densiflora; spring flowers providing nectar; 
pollinators of the bay checkerspot's food and nectar plants; soils 
derived from serpentinic rock; and space for dispersal between 
habitable areas. In addition, the following are each primary 
constituent elements to be conserved when present in combination 
with one or more of the primary constituent elements above: areas of 
open grassland, topography with varied slopes and aspects providing 
surface conditions with warm and moderate to cool temperatures 
during sunny spring days, stable holes or cracks in the soil and 
surface rocks or rock outcrops, wetlands providing moisture during 
times of spring drought.
    3. Within these areas, existing human-constructed features and 
structures, such as buildings, roads, railroads, urban development, 
and other human-constructed features not containing any primary 
constituent elements, are not considered critical habitat and are 
not included in the designation.
    Unit 1 (Edgewood Park/Triangle Unit): San Mateo County, 
California. Bounded as follows: beginning at the intersection of 
Edgewood Road and Canada Road; southwesterly, south, and 
southeasterly along the light-duty extension of Edgewood Road 
southwest of Canada Road to its intersection with an unnamed 
intermittent drainage tributary to Upper Crystal Springs Reservoir 
as shown on the USGS Woodside 7.5 minute quadrangle (1961, 
photorevised 1968 and 1973); then southwesterly along this drainage 
to its intersection with I-280; then southeasterly along the eastern 
edge of pavement of I-280 to a point due southwest of the 
southernmost corner of Edgewood Natural Preserve (this just south of 
a substation shown on the Woodside quadrangle, where the State Fish 
and Game Refuge boundary meets Canada Road and an elevation of 161 m 
(528 ft) is marked); then due northeast to the southernmost corner 
of Edgewood Natural Preserve; then northeast along the southeast 
boundary of Edgewood Natural Preserve to the 159 m (520 ft) 
elevation contour as shown on the Woodside quadrangle; then 
northwesterly along this contour to its intersection with Edgewood 
Road; then southwesterly along the south edge of pavement of 
Edgewood Road to the starting point.
    Unit 2 (Jasper Ridge Unit): San Mateo County, California. 
Bounded as follows: to the east, north, and west by the 110 m (360 
ft) elevation contour around Jasper Ridge (USGS Palo Alto 7.5 minute 
quadrangle, 1991); and to the south by the current boundary of the 
Jasper Ridge Biological Reserve, which is largely coincident with 
the northern boundary of the town of Portola Valley.

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[[Page 21478]]


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[[Page 21479]]

    Unit 3 (San Bruno Mountain Unit): San Mateo County, California. All 
area on San Bruno Mountain above the 152 m (500 ft) elevation contour 
and east of the western Pacific Gas and Electric transmission corridor 
(this transmission corridor runs south to southwesterly from the west 
end of Guadalupe Valley to the South San Francisco/Colma City border) 
as shown on the USGS San Francisco South 7.5 minute quadrangle, 1956).
    Unit 4 (Bear Ranch Unit): Santa Clara County, California. Those 
portions of section 32, T.9 S., R.4 E. and section 5, T.10 S., R.4 E., 
westerly of Coyote Reservoir Road--a light-duty road shown but not 
named on the USGS Gilroy 7.5 minute quadrangle (1955, photorevised 1968 
and 1973).
    Unit 5 (San Martin Unit): Santa Clara County, California. Bounded 
on the north by a line running due east-west through a point 305 m 
(1000 ft) due north of a hilltop marked 239 m (785 ft) in elevation on 
the USGS Mt. Madonna 7.5 minute quadrangle (1955, photorevised 1968). 
This hilltop is near latitude 37 degrees 4 minutes 42 seconds north, 
longitude 121 degrees 38 minutes 19 seconds west (Hayes Lane, not shown 
on the Mt. Madonna quadrangle, also runs in the vicinity of this 
hilltop). The north boundary runs as far east as its intersection with 
the 97 m (320 ft) elevation contour west of Coolidge Avenue as shown on 
the Mt. Madonna quadrangle. From this point the boundary runs 
southeasterly, southerly, and westerly following this contour, 
continuing onto the USGS Gilroy 7.5 minute quadrangle (1955, 
photorevised 1968 and 1973) and back to its intersection with longitude 
121 degrees 37 minutes 30 seconds west (the junction between the two 
quadrangles). The unit is bounded on the south-southwest by a straight 
line running from this latter point for a distance of about 2,228 m 
(7,310 ft) slightly south of west-northwest (bearing 291.5 degrees) to 
a hilltop labeled 151 m (495 ft) in elevation on the Mt. Madonna 
quadrangle. The west boundary of the unit runs from this hilltop due 
north-northeast (bearing 22.5 degrees) to the north boundary.

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[[Page 21480]]

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[[Page 21481]]


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[[Page 21482]]

    Unit 6 (Communications Hill Unit): Santa Clara County, California. 
Starting at a point on the 73 m (240 ft) elevation contour due south of 
the 133 m (435 ft) summit of Communications Hill, the Communications 
Hill unit is bounded to the south by the 73 m (240 ft) elevation 
contour as shown on the USGS San Jose East 7.5 minute quadrangle map 
(1961, photorevised 1980; the hill is not named on this map but the 
county communications center is shown), as far west as its intersection 
with Highway 87 (this highway is not shown on the San Jose East 
quadrangle); then south along Highway 87 (west edge of pavement) to the 
55 m (180 ft) elevation contour (all contours in this description are 
as shown on the San Jose East quadrangle); then south, west, and north 
along this contour to a point due west of the southernmost point of the 
southern of the two water tanks on the top of the hill west of Highway 
87; then due east for a distance of about 238 m (780 ft) to a point due 
south of the easternmost point of the eastern of the two water tanks; 
then due north for about 439 m (1,440 ft) to the intersection with the 
85 m (280 ft) elevation contour; then slightly north of east on a 
straight line to the southern corner of the property of the county 
communications facility; then on a line to the northern corner of this 
property; then due southwest to Carol Drive (not named on the San Jose 
East quadrangle); then slightly north of northwest (bearing 322 
degrees) to the 55 m (180 ft) elevation contour; then along this 
contour easterly and northeasterly until it reaches the second dirt 
road as shown on the San Jose East quadrangle; then due northeast 
across the Southern Pacific railroad tracks to the 55 m (180 ft) 
elevation contour; then northwesterly and northeasterly along this 
contour to the boundary of Oak Hill Memorial Park cemetery; then 
following the cemetery boundary southeasterly, skirting a hill summit 
marked 98 m (323 ft) on the San Jose East quadrangle, to the first 67 m 
(220 ft) elevation contour southeast of this summit; then due southwest 
to the 49 m (160 ft) elevation contour immediately west of the railroad 
tracks; then southeasterly along this contour as shown on the 1961 San 
Jose East quadrangle to its intersection with Hillsdale Avenue; then 
southwesterly along Hillsdale Avenue (north edge of pavement) to its 
intersection with Vista Park Drive (not shown on the San Jose East 
quadrangle); then due north to the 73 m (240 ft) elevation contour; 
then westerly along this contour to the starting point.
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[[Page 21484]]

    Unit 7 (Kalana Hills Unit): Santa Clara County, California. From 
USGS 1:24,000 quadrangle map Morgan Hill, lands bounded by the 
following UTM Zone 10 NAD83 Coordinates (E,N): 612000, 4115810; 612070, 
4115810; 612090, 4115790; 612170, 4115750; 612210, 4115700; 612240, 
4115640; 612270, 4115590; 612270, 4115490; 612330, 4115490; 612360, 
4115460; 612360, 4115370; 612430, 4115370; 612470, 4115360; 612550, 
4115280; 612580, 4115190; 612630, 4115150; 612670, 4115110; 612710, 
4115060; 612710, 4115050; 612730, 4115000; 612730, 4114960; 612710, 
4114910; 612550, 4114910; 612550, 4114880; 612510, 4114840; 612510, 
4114820; 612480, 4114790; 612450, 4114740; 612400, 4114700; 612350, 
4114660; 612180, 4114660; 612130, 4114700; 612110, 4114700; 612080, 
4114720; 612060, 4114720; 611960, 4114790; 611810, 4114900; 611800, 
4115630; 611850, 4115680; 611880, 4115680; 611900, 4115700; 611940, 
4115770; 612000, 4115810 Including lands bounded by: 612830, 4114610; 
612900, 4114610; 612950, 4114590; 612950, 4114520; 612940, 4114510; 
612940, 4114500; 612950, 4114490; 612950, 4114470; 612960, 4114460; 
612960, 4114410; 612970, 4114410; 612970, 4114380; 612990, 4114360; 
613000, 4114360; 613000, 4114370; 613040, 4114370; 613080, 4114360; 
613090, 4114360; 613090, 4114410; 613080, 4114410; 613080, 4114480; 
613150, 4114530; 613230, 4114530; 613280, 4114510; 613290, 4114510; 
613370, 4114510; 613440, 4114470; 613460, 4114440; 613490, 4114400; 
613490, 4114340; 613460, 4114300; 613460, 4114290; 613500, 4114290; 
613530, 4114320; 613580, 4114320; 613610, 4114300; 613660, 4114260; 
613710, 4114160; 613710, 4114090; 613700, 4114040; 613590, 4113950; 
613500, 4113940; 613350, 4114030; 613350, 4114160; 613270, 4114210; 
613200, 4114200; 613160, 4114140; 612630, 4114460; 612630, 4114470; 
612680, 4114530; 612770, 4114560; 612830, 4114610.
    Unit 8 (Kirby Unit): Santa Clara County, California. Beginning at 
the intersection of the intermittent creek draining Metcalf Canyon 
(Metcalf Canyon on the USGS Morgan Hill 7.5 minute quadrangle, 1955, 
photorevised 1980) with Highway 101 (current alignment, not shown on 
Morgan Hill quadrangle), the unit is bounded on the east, southeast, 
and south by Highway 101 (east edge of pavement, current alignment, not 
shown on the Morgan Hill quadrangle), south to where it crosses Coyote 
Creek. From there the boundary runs southeasterly up along Coyote Creek 
to the Anderson Lake dam; then east-northeasterly up the face of the 
dam to Anderson Lake (Anderson Reservoir). The unit is bounded on the 
southeast by Anderson Lake. From the northernmost tip of Anderson Lake 
(at latitude 37 degrees 12 minutes 15 seconds north) the boundary runs 
slightly north of west for a distance of about 1,097 m (3,600 ft) to a 
hilltop marked 379 m (1,243 ft) in elevation on the Morgan Hill 
quadrangle; then slightly west of northwest for a distance of about 
1,707 m (5,600 ft) to a hilltop marked 411 m (1,347 ft) in elevation on 
the Morgan Hill quadrangle; then nearly due west for a distance of 
about 500 m (1,640 ft) to a hilltop marked 430 m (1,412 ft) in 
elevation on the Morgan Hill quadrangle; then north of northwest 
(bearing 325 degrees) for a distance of about 2,551 m (8,370 ft) to a 
hilltop marked 444 m (1,457 ft) in elevation on the Morgan Hill 
quadrangle; then on a line running from this hilltop south of west-
southwest (bearing 237 degrees) to the intersection of the Metcalf 
Canyon drainage with the 354 m (1,160 ft) elevation contour as shown on 
the Morgan Hill quadrangle. The north boundary of the unit then 
continues westerly down the Metcalf Canyon drainage to the starting 
point.
    Unit 9 (Morgan Hill Unit): Santa Clara County, California. From 
USGS 1:24,000 quadrangle map Morgan Hill, lands bounded by the 
following UTM Zone 10 NAD83 Coordinates (E,N): 617000, 4112300; 617300, 
4112300; 617500, 4112000; 617600, 4112000; 617800, 4111900; 617900, 
4111900; 618100, 4111800; 618100, 4111700; 618200, 4111500; 618200, 
4111300; 618000, 4111100; 617700, 4110900; 617400, 4110700; 617200, 
4110700; 617200, 4110900; 617000, 4111100; 616900, 4111100; 616900, 
4110800; 616500, 4110800; 616300, 4110600; 616000, 4110600; 615600, 
4110800; 615600, 4111000; 615700, 4111300; 615700, 4111700; 616000, 
4111700; 616000, 4111800; 616200, 4111900; 616300, 4112000; 616400, 
4112000; 616400, 4111900; 616500, 4111900; 616500, 4112000; 616600, 
4112000; 616800, 4112200; 617000, 4112300.

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[[Page 21486]]

    Unit 10 (Metcalf Unit): Santa Clara County, California. From USGS 
1:24,000 quadrangle maps Lick Observatory, Morgan Hill, San Jose East, 
and Santa Teresa Hills, lands bounded by the following zone 10 NAD83 
Coordinates (E,N): 608300, 4125800; 608500, 4125800; 608900, 4125400; 
609500, 4125400; 609800, 4125300; 610200, 4125600; 610300, 4125600; 
610600, 4125500; 610700, 4125500; 610900, 4125300; 610900, 4125000; 
611000, 4124900; 611200, 4124500; 611300, 4124500; 611400, 4124400; 
611400, 4124300; 611500, 4124200; 611500, 4124100; 611800, 4123900; 
612100, 4123800; 612500, 4123500; 612500, 4123400; 612800, 4123200; 
613600, 4123200; 613700, 4123000; 613900, 4122500; 613900, 4122400; 
614100, 4122000; 614100, 4121900; 614200, 4121700; 614200, 4121600; 
613900, 4121400; 613800, 4121400; 613500, 4121500; 613400, 4121500; 
613100, 4121700; 612200, 4121700; 611900, 4121600; 611800, 4121600; 
611500, 4121400; 611300, 4121400; 611200, 4121300; 611000, 4121300; 
610700, 4121500; 610400, 4121700; 610100, 4121900; 609900, 4122100; 
609900, 4122200; 610100, 4122300; 610100, 4122400; 610000, 4122600; 
610000, 4122800; 609900, 4122900; 609900, 4123000; 609800, 4123100; 
609700, 4123100; 609600, 4123000; 609500, 4123000; 609500, 4123600; 
609200, 4124000; 609100, 4123900; 608900, 4123900; 608000, 4124500; 
608000, 4124600; 607700, 4125000; 607700, 4125300; 608300, 4125800.
    Unit 11 (San Felipe Unit): Santa Clara County, California. The east 
boundary of the San Felipe critical habitat unit begins at the 440 m 
(1,445 ft) hilltop identified in the northeast boundary of the Metcalf 
unit (this peak is labeled on the USGS Morgan Hill 7.5 minute 
quadrangle (1955, photorevised 1980), near latitude 37 degrees 15 
minutes north, longitude 121 degrees 43 minutes west); and proceeds 
from that hilltop due north to San Felipe Road at an elevation of about 
296 m (970 ft) (USGS Lick Observatory 7.5 minute quadrangle, 1955, 
photorevised 1968); then west-northwesterly along San Felipe Road 
(southwest edge of pavement) for a distance of about 2.7 km (1.7 mi) to 
Silver Creek Road (sic). The north boundary is formed by Silver Creek 
Road (south edge of pavement) from San Felipe Road to Silver Creek (the 
creek crossing is on the USGS San Jose East 7.5 minute quadrangle, 
1961, photorevised 1980). The west boundary, which abuts the Metcalf 
unit, runs from Silver Creek Road southeasterly along Silver Creek 
(mostly on Lick Observatory quadrangle). The south boundary also abuts 
the Metcalf unit, and runs from Silver Creek (Morgan Hill quadrangle) 
due east to the starting point.
    Unit 12 (Silver Creek Hills Unit): Santa Clara County, California. 
From USGS 1:24,000 quadrangle maps San Jose East, lands bounded by the 
following UTM Zone 10 NAD83 Coordinates (E,N): 606600, 4128500; 606800, 
4128500; 607000, 4128400; 607000, 4128200; 607100, 4128100; 606900, 
4127900; 606900, 4127800; 607000, 4127600; 607300, 4127600; 607500, 
4127700; 607700, 4127700; 607800, 4127600; 607800, 4127500; 607700, 
4127400; 607800, 4127300; 607800, 4127100; 608000, 4127000; 608100, 
4126900; 608100, 4126700; 607900, 4126600; 607900, 4126400; 608300, 
4126000; 608300, 4125900; 608200, 4125800; 608000, 4125700; 607900, 
4125600; 607900, 4125500; 607700, 4125400; 607600, 4125400; 606600, 
4126100; 606400, 4126200; 606300, 4126300; 606200, 4126300; 606100, 
4126400; 605900, 4126500; 605800, 4126600; 605600, 4127000; 605600, 
4127100; 606200, 4127000; 606400, 4126800; 606800, 4126600; 607200, 
4126700; 607400, 4127000; 607300, 4127200; 607100, 4127400; 606900, 
4127500; 606700, 4127700; 606300, 4128200; 606600, 4128300; 606600, 
4128500, including lands bounded by: 605600, 4128300; 605900, 4128300; 
606000, 4128100; 605900, 4128000; 605700, 4128000; 605600, 4128100; 
605600, 4128300 and lands bounded by: 606200, 4128100; 606200, 4128000; 
606100, 4128000; 606100, 4127900; 606000, 4127900; 606000, 4128000; 
606100, 4128100; 606200, 4128100.

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    Unit 13 (San Vicente-Calero Unit): Santa Clara County, California. 
Bounded on the north and northwest by Calero Reservoir, by the canal 
and siphon running westerly of the main reservoir dam (dam on the 
Arroyo Calero), and by the city boundary of the City of San Jose, which 
follows the canal at an elevation of roughly 152 m (500 ft), as far as 
its intersection with Chilanian Gulch. The boundary then runs generally 
southeast following Chilanian Gulch to its intersection with the R.1 
E./R.2 E. (Mount Diablo meridian/base line) dividing line, then due 
south to the Calero County Park border. The park boundary forms the 
rest of the western, southern, and southeastern border of the unit. The 
eastern border of the unit is formed by a line running due north from 
the southern Calero County Park boundary through a hilltop elevation 
labeled 307 m (1,009 ft) on the USGS Santa Teresa Hills 7.5 minute 
quadrangle (1953, photorevised 1980) to Calero Reservoir. This hilltop 
is near latitude 37 degrees 10 minutes 15 seconds north, longitude 121 
degrees 46 minutes 15 seconds west.
    Unit 14 (Santa Teresa Hills Unit): Santa Clara County, California. 
The east and southeast boundary runs as follows, beginning at the 
westernmost corner of the Tulare Hill Corridor unit: due southeast and 
then northeast along the Tulare Hill Corridor unit boundary, to the 85 
m (280 ft) elevation contour (USGS Santa Teresa Hills 7.5 minute 
quadrangle, 1953, photorevised 1980); then southeasterly, south, and 
southwesterly along this elevation contour (continues onto USGS Morgan 
Hill 7.5 minute quadrangle, 1955, photorevised 1980, and back) to its 
intersection with Bailey Avenue. The south, southwest, and western 
border of the unit then continues from this point, along a line running 
west-southwesterly (bearing 248 degrees) for a distance of about 325 m 
(1,065 ft) to a bench mark north of Bailey Avenue labeled 108 m (354 
ft) in elevation on the Santa Teresa Hills quadrangle; then north of 
east (bearing 284 degrees) for a distance of about 3,030 m (9,940 ft) 
to the intersection of a land grant boundary with a transmission line 
shown on the 1980 photorevised Santa Teresa Hills quadrangle at an 
elevation of about 152 m (500 ft); then north-northwesterly along this 
land grant line to the intersection with Fortini Road; then generally 
west-southwest and west along Fortini Road to the intersection with San 
Vicente Avenue (these road names do not appear on the Santa Teresa 
quadrangle); then westerly along San Vicente Avenue to where it turns 
south south-west; then continuing westerly and northwesterly from this 
point along a land grant boundary shown on the Santa Teresa Hills 
quadrangle to its intersection with both Henwood Drive (road name does 
not appear on the Santa Teresa quadrangle) and an unnamed intermittent 
drainage (tributary to Arroyo Calero); then northeasterly and northerly 
up this drainage as marked on the Santa Teresa Hills quadrangle to the 
183 m (600 ft) elevation contour; then due north-northeast for a 
distance of about 424 m (1,390 ft) to the first intersection with the 
280 m (920 ft) elevation contour; then west-northwest for a distance of 
about 265 m (870 ft) to a hilltop over 280 m (920 ft) in elevation, 
then slightly north of west (bearing 276 degrees) for a distance of 
about 543 m (1,780 ft) to the end of a dirt road as marked on the 1980 
photorevised Santa Teresa Hills quadrangle; then slightly south of 
west-northwest (bearing 290 degrees) for a distance of about 2,551 m 
(8,370 ft) to a hilltop marked 173 m (568 ft) in elevation on the Santa 
Teresa Hills quadrangle; then due northeast to the 73 m (240 ft) 
elevation contour as shown on the Santa Teresa Hills quadrangle. The 
northern boundary of the unit is formed by the 73 m (240 ft) elevation 
contour as shown on the Santa Teresa Hills quadrangle.
    Unit 15 (Tulare Hill Corridor Unit): Santa Clara County, 
California. Bounded on the northeast by the most northeasterly edge of 
pavement of Highway 101 (i.e., the highway itself is included, and the 
unit abuts the Kirby and Metcalf units). Bounded on the northwest, 
west, and southwest by a line extending due southwest from the 
northeast boundary to the corner of Cheltenham Way and Coburn Court, 
then southwesterly along Cheltenham Way from Coburn Court to the 
intersection with Santa Teresa Boulevard, then southeasterly along 
Santa Teresa Boulevard to the 73 m (240 ft) elevation contour as shown 
on the USGS Santa Teresa Hills 7.5 minute quadrangle (1953, 
photorevised 1980), then southwesterly along this contour to the border 
of Santa Teresa County Park, then along a line due southeast to the 
southeast border of the unit. Bounded on the southeast by a line 
running due northeast-southwest through the southeastern-most point of 
the 85 m (280 ft) contour of Tulare Hill, as shown on the Morgan Hill 
quadrangle.

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* * * * *


    Dated: April 20, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-10333 Filed 4-27-01; 8:45 am]
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