[Federal Register Volume 67, Number 102 (Tuesday, May 28, 2002)]
[Rules and Regulations]
[Pages 36822-36845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13064]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH83


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

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 pursuant to the Endangered Species Act of 1973, as 
amended (Act), for Chorizanthe robusta var. robusta (robust 
spineflower). Approximately 190 hectares (469 acres) of land fall 
within the boundaries of the critical habitat designation. Critical 
habitat is located in Santa Cruz County, California. This critical 
habitat designation provides additional protection under section 7 of 
the Act with regard to actions carried out, funded, or authorized by a 
Federal agency. Section 4 of the Act requires us to consider economic 
and other relevant impacts when specifying any particular area as 
critical habitat. We solicited data

[[Page 36823]]

and comments from the public on all aspects of the proposed rule, 
including data on economic and other impacts of the designation, and 
our approaches for handling any future habitat conservation plans.

DATES: This rule becomes effective on June 27, 2002.

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 Ventura Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2493 Portola Road, Suite B, Ventura, CA, 93003.

FOR FURTHER INFORMATION CONTACT: Connie Rutherford, Ventura Fish and 
Wildlife Office, at above address (telephone 805/644-1766; facsimile 
805/644-3958).

SUPPLEMENTARY INFORMATION:

Background

    Chorizanthe robusta var. robusta, also known as robust spineflower 
or Aptos spineflower, is endemic to sandy soils in central California. 
The taxon is currently found in southern Santa Cruz County. Plants 
formerly considered C. r. var. robusta, but whose identity is now 
questioned, are found in northern Monterey County. Historically, C. r. 
var. robusta was also known from Alameda, San Mateo, and Santa Clara 
Counties. In California, the spineflower genus (Chorizanthe) in the 
buckwheat family (Polygonaceae) comprises species of wiry annual herbs 
that inhabit dry sandy soils, both along the coast and inland. Because 
of the patchy and limited distribution of such soils, many species of 
Chorizanthe tend to be highly localized in their distributions.
    Like other spineflowers, Chorizanthe robusta var. robusta is 
branched from the base, which has a cluster of leaves arising from the 
base of the stem. The overall appearance of C. r. var. robusta is that 
of a low-growing herb that is soft-hairy and grayish or reddish in 
color. The plant has an erect to spreading or prostrate habit, with 
large individuals reaching 50 centimeters (cm) (20 inches (in)) or more 
in diameter. This taxon is distinguished by white (rarely pinkish) 
scarious (translucent) margins on the lobes of the involucre (circle or 
collection of modified leaves surrounding a flower cluster) or head 
that subtend the white- to rose-colored flowers. The aggregate of 
flowers tends to be 1.5 to 2.0 cm (0.6 to 0.8 in) across in diameter 
and distinctly aggregate. Each flower produces one seed; the seeds are 
3.5 to 4.0 millimeters (0.14 to 0.16 in) long.
    Chorizanthe robusta var. robusta is one of two varieties of the 
species Chorizanthe robusta. The other variety (Chorizanthe robusta 
var. hartwegii), known as Scotts Valley spineflower, is restricted to 
the Scotts Valley area in the Santa Cruz Mountains. The range of C. r. 
var. robusta partially overlaps with Chorizanthe pungens var. pungens 
(Monterey spineflower), another closely related taxon in the Pungentes 
section of the genus, in southern Santa Cruz County. Chorizanthe 
pungens var. pungens is a threatened species and Chorizanthe robusta 
var. hartwegii is an endangered species; for a detailed description of 
these related taxa, see the Draft Recovery Plan for the Robust 
Spineflower (Service 2000) and references within the plan. We are 
designating critical habitat for Chorizanthe pungens var. pungens and 
Chorizanthe robusta var. hartwegii in separate Federal Register rules.
    Chorizanthe robusta var. robusta is a short-lived annual species. 
It germinates during the winter months and flowers from April through 
June. Pollinators observed on C. r. var. robusta include six species of 
flies, including two species of bee flies (Bombyliidae) and two species 
of syrphid flies (Syrphidae); three species of beetles, including 
ladybird beetles (Coccinelidae); honey bees (Apis mellifera); 
bumblebees (Apidae); leaf cutter bees (megachilids); at least six 
species of butterflies, including one species in the Nymphalidae 
family; sphecid wasps; and ants (Randy Morgan, biologist, Soquel, 
California, pers. comm., 2000; S. Baron, in litt., 2000; Annie Murphy, 
Pacific Gas and Electric Company, in litt., 2001). In other annual 
species of Chorizanthe, the flowers are protandrous, a reproductive 
strategy in which the anthers (part of flower that produces pollen) 
mature and shed pollen prior to the maturation of the style (part of 
the female reproductive structure of a flower) to receive pollen, with 
a delay of style receptivity of 1 or 2 days. Protandry facilitates 
cross-pollination by insects. However, if cross-pollination does not 
occur within 1 or 2 days, self-pollination may occur as the flower 
closes at the end of the day (Reveal 2001). The relative importance of 
insect pollination and self-pollination to seed set is unknown; 
however, in the closely related C. p. var. pungens), the importance of 
pollinator activity in seed set was demonstrated by the production of 
seed with low viability where pollinator access was limited (Harding 
Lawson Associates 2000).
    Seed is mature by August. The plants turn a rusty hue as they dry 
through the summer months, eventually shattering during the fall. Seed 
dispersal is facilitated by the involucral spines, which attach the 
seed to passing animals. Black-tailed hares (Lepus californicus) have 
been observed to browse on Chorizanthe robusta var. robusta (S. Baron, 
in litt., 2000), and most likely act to disperse seeds as well. Other 
animals likely to assist in seed dispersal include, but are not limited 
to, mule deer (Odocoileus hemionus), gray foxes (Urocyon 
cinereoargenteus), coyotes (Canis latrans), bobcats (Felis rufus), 
ground squirrels (Otospermophilus beecheyi), striped skunks (Mephitis 
mephitis), opossums (Didelphis virginiana), racoons (Procyon lotor), 
and other small mammals and birds. While animal vectors most likely 
facilitate dispersal between populations, or within portions of 
populations, the prevailing coastal winds undoubtedly play a part in 
scattering seed within colonies and populations.
    For annual plants, maintaining a seed bank (a reserve of dormant 
seeds, generally found in the soil) is important to year-to-year and 
long-term survival (Baskin and Baskin 1978). A seed bank includes all 
of the seeds in a population and generally covers a larger area than 
the extent of observable plants seen in a given year (Given 1994). The 
number and location of standing plants (the observable plants) in a 
population varies annually due to a number of factors, including the 
amount and timing of rainfall, temperature, soil conditions, and the 
extent and nature of the seed bank. The extent of seed bank reserves is 
variable from population to population, and large fluctuations in the 
number of standing plants at a given site may occur from one year to 
the next. Depending on the vigor of the individual plant and the 
effectiveness of pollination, dozens, if not hundreds of seeds could be 
produced. In one study at Sunset State Beach, individual Chorizanthe 
robusta var. robusta plants had an average of 126 flowers, and an 
average seed set of 51 seeds per plant (S. Baron, pers. comm., 2001). 
The production of seed itself does not guarantee production of future 
reproductive individuals for several reasons: seed viability may be 
low, as has been found in other species of Chorizanthe (Bauder 2000); 
proper conditions for germination may not be present in most years; and 
seedling mortality may result from withering before maturity, 
herbivory, or uprooting by gopher activity (Baron 1998). At one site, 
seedling mortalities of 42 and 31 percent in 1998 and 2000, 
respectively, were caused in C. r. var. robusta primarily by a larval 
microlepidoptera

[[Page 36824]]

from the family Gelichiideae (Baron 2000).
    While sites that support large populations of Chorizanthe robusta 
var. robusta most likely also support large seed banks and can sustain 
several years of poor weather or bouts of predation, sites that support 
smaller populations and smaller seed banks may be more vulnerable to 
extirpation. For example, the population of C. r. var. robusta at 
Sunset State Beach appears to be consistently large, with tens of 
thousands of individuals over the past decade. Also, the population 
that occurs within the Aptos unit numbered approximately 3,000 in the 
year 2000 (Taylor 2000); based on only 1 year of observation, this 
appears to be the second largest population of C. r. var. robusta. 
However, five other known populations have been estimated to support 
1,500 or fewer plants, though in some cases, the estimate has been 
based on only 1 year of observation: the Pogonip population comprised 
800 individuals in the year 2000 (Baron 2000); the Branciforte 
population comprised approximately 500 individuals in the year 2001 
(Connie Rutherford, Service, in litt., 2001); the Freedom unit 
supported approximately 500 individuals in 1995 (California Natural 
Diversity Data Base (CNDDB) 2001); the Buena Vista population supported 
approximately 1,500 individuals in 1999 (Baron 1999b); and the Wilder 
Creek population approximated 1,000 individuals in 2001 (Gray Hayes, in 
litt., 2001).
    The locations where Chorizanthe robusta var. robusta occurs are 
subject to a mild maritime climate, where fog helps keep summer 
temperatures cool and winter temperatures relatively warm, and provides 
moisture in addition to the normal winter rains. Chorizanthe robusta 
var. robusta is currently known from a total of eight sites, six of 
which are included in this critical habitat designation. One of these 
sites is located on active coastal dunes (Sunset State Beach), while 
the other sites are located inland from the immediate coast in sandy 
openings within scrub, maritime chaparral, or oak woodland habitats. 
All of these habitat types include microhabitat characteristics that 
are favored by C. r. var. robusta. First, all sites are on sandy soils; 
whether the origin of the soils are from active dunes or interior 
fossil dunes appears unimportant. The most prevalent soil series 
represented are Baywood, Ben Lomond, Zayante, Tierra, and Watsonville 
(Soil Conservation Service 1980). Second, these sites are relatively 
open and free of other vegetation; sandy soils tend to be nutrient-
poor, which limits the abundance of other herbaceous species that can 
grow on them. However, if these soils have been enriched, either 
through the accumulation of organic matter or importation of other 
soils, these sandy soils may support more abundant herbaceous 
vegetation which may then compete with C. r. var. robusta. Management 
of the herb cover, through grazing, mowing or fire, may allow the 
spineflower to persist. In scrub and chaparral communities, C. r. var. 
robusta does not occur under dense stands, but will occur between more 
widely spaced shrubs. Controlled experiments in altering soil and shade 
regimes for the closely related Ben Lomond spineflower (Chorizanthe 
pungens var. hartwegiana) showed that plants grown on their native low-
nutrient soil were less successful (measured by flower production and 
total biomass) than those grown on adjacent soils with a higher organic 
matter content. Furthermore, plants grown in high shade were less 
successful than those grown in low or no shade. These results indicate 
that the plants grow on sandy soils because their nutrient-poor nature 
tends to restrict the growth of other species that would compete with 
the spineflower for light (McGraw and Levin 1998).
    According to information included in the CNDDB, Chorizanthe robusta 
var. robusta once ranged from Alameda County, on the eastern side of 
San Francisco Bay, south to northern Monterey County--a range of 
approximately 160 kilometers (km) (100 miles (mi)). The identity of the 
Alameda collections, however, is still unresolved; Reveal and Hardham 
(1989) noted that these collections may be more closely related to 
other spineflowers in the Pungentes section of the genus. Resolution of 
the identity of the Alameda collections is unlikely since the Alameda 
population was last collected in 1948, and the population at this site 
is believed to be extirpated (Service 2000). Other historic collections 
were made from Colma in San Mateo County, Los Gatos and San Jose in 
Santa Clara County, and several locations in Santa Cruz and Monterey 
Counties. The species is believed to be extirpated at all of these 
sites (Service 2000). The current distribution of Chorizanthe robusta 
var. robusta is restricted to coastal and near-coastal sites in 
southern Santa Cruz County, ranging from Pogonip Park in the city of 
Santa Cruz, southeast to coastal dunes at Sunset State Beach. One other 
currently occupied location is also found in northern Monterey County, 
but the identity of the plants at the site has recently come into 
question (see below, Summary of Changes From the Proposed Rule, item 
5).
    At the time of the proposed rule, we were aware of seven sites with 
Chorizanthe robusta var. robusta. At Pogonip Park, two C. r. var. 
robusta colonies occur on sandy soils derived from the Santa Margarita 
sandstone formation; one of these colonies is growing in sandy openings 
within a mixed forest community (S. Baron, in litt., 1999a; CNDDB 
2000). Within the city of Santa Cruz, near where Highway 1 crosses 
Carbonera Creek (referred to as the Branciforte site), a population 
occurs in a field that supports grassland species, including Avena 
barbata (wild oats), Vulpia sp. (vulpia), Lupinus sp. (sky lupine), 
Eschscholzia californica (California poppy), Conyza sp. (telegraph 
weed), Navarettia atractyloides (navarretia), and Erodium sp. (filaree) 
(R. Morgan, pers. comm., 2000). At the Aptos site, C. r. var. robusta 
occurs in an opening within maritime chaparral on inland marine sand 
deposit (CNDDB 2000). At the Freedom site, C. r. var. robusta occurs in 
a grassy opening within maritime chaparral and oak woodland (Dean 
Taylor, Jepson Herbarium, Berkeley, California, in litt., 2000). At the 
Buena Vista site, C. r. var. robusta occurs on sandy soils in openings 
within oak forest and maritime chaparral (S. Baron, in litt., 1999b). 
The Buena Vista site also supports the endangered Santa Cruz long-toed 
salamander (Ambystoma californiense).
    At Sunset State Beach, Chorizanthe robusta var. robusta is found at 
the base of backdunes in openings of coastal scrub, including 
Eriophyllum staechadifolium (seaside woolly sunflower), Artemisia 
pycnocephala (coastal sagewort), Ericameria ericoides (mock heather), 
and Baccharis pilularis (coyote bush) (CNDDB 2000). Chorizanthe pungens 
var. pungens grows in a band parallel to the C. r. var. robusta, in the 
foredunes along the beach (CNDDB 2000). The distribution of suitable 
habitat on coastal dunes is subject to dynamic shifts caused by 
patterns of dune mobilization, stabilization, and successional trends 
in coastal dune scrub that increase in cover over time. Individual 
colonies of C. r. var. robusta, found in gaps between stands of scrub, 
shift in distribution and size over time. The seventh site at which the 
species was thought to occur at the time of the proposed rule was on 
coastal dunes between Marina and Seaside on lands formerly known as 
Fort Ord, in northern Monterey County. The identity of the plants at 
this site has

[[Page 36825]]

recently come into question (see below, Summary of Changes From the 
Proposed Rule).
    During the public comment periods, we became aware of additional 
habitat that supports Chorizanthe robusta var. robusta, that we had not 
included in the critical habitat proposal. Two areas supporting C. r. 
var. robusta, but not included in the critical habitat designation, are 
considered new sites: (1) A location to the south of Empire Grade and 
north of Wilder Ranch State Park on private lands (G. Hayes, in litt., 
2001) and (2) two places in Manresa State Beach. A third new area that 
came to our attention after we had proposed critical habitat is an 
expansion of the previously known location just east of Aptos High 
School on lands owned by the Pajaro Valley Unified School District 
(Vince Cheap, California Native Plant Society, in litt., 2000). This 
latter area is directly adjacent to the Freedom unit that is discussed 
in this rule.
    Under the Act and the Administrative Procedure Act (APA) (5 U.S.C. 
702 and 706), we are required to allow the public an opportunity to 
comment on the proposed rulemaking. Therefore, because these new areas 
were not included in the proposed rule, we are not including them in 
the final rule. Although these areas were not included in the critical 
habitat proposal, they may be important to the recovery of the species 
and could be included in recovery activities in the future.
    Portions of the coastal dune, coastal scrub, grassland, chaparral, 
and oak woodland communities that support Chorizanthe robusta var. 
robusta have been eliminated or altered by recreational use, conversion 
to agriculture, and urban development. Dune communities have also been 
altered in composition by the introduction of non-native species, 
especially Carpobrotus spp. (sea-fig or iceplant) and Ammophila 
arenaria (European beachgrass), in an attempt to stabilize shifting 
sands. In the last decade, significant efforts have been made to 
restore native dune communities, including the elimination of these 
non-native species (California Department of Parks and Recreation 
(CDPR) 1995).

Previous Federal Action

    On May 16, 1990, we received a petition from the Santa Cruz Chapter 
of the California Native Plant Society to list Chorizanthe robusta var. 
hartwegii (Scotts Valley spineflower) as endangered. Based on a 90-day 
finding that the petition presented substantial information indicating 
that the requested action may be warranted (55 FR 46080), we initiated 
a status review of this taxon. During that time, we also reviewed the 
status of Chorizanthe robusta var. robusta. We proposed endangered 
status for the C. r. var. robusta on October 24, 1991 (56 FR 55107). 
The final rule, published on February 4, 1994, (59 FR 5499) listed C. 
robusta, inclusive of var. robusta and var. hartwegii, as endangered. 
At the time Chorizanthe robusta was listed, we found that designation 
of critical habitat for Chorizanthe robusta was prudent but not 
determinable and that designation of critical habitat would occur once 
we had gathered the necessary data.
    On June 30, 1999, our failure to designate critical habitat for 
Chorizanthe robusta within the time period mandated by 16 U.S.C. 
1533(b)(6)(C)(ii) was challenged in Center for Biological Diversity v. 
Babbitt (Case No. C99-3202 SC). On August 30, 2000, the U.S. District 
Court for the Northern District of California (court) directed us to 
publish a proposed critical habitat designation within 60 days of the 
court's order, and a final critical habitat designation no later than 
120 days after the proposed designation is published. On October 16, 
2000, the court granted our request for a stay of this order. 
Subsequently, by a stipulated settlement agreement signed by the 
parties on November 20, 2000, we agreed to propose critical habitat for 
Chorizanthe robusta var. robusta by January 15, 2001, and to publish a 
final rule by October 19, 2001. The plaintiffs subsequently agreed to, 
and the court approved, an extension until May 17, 2002, to complete 
the final rule.
    Because the two varieties of Chorizanthe robusta are geographically 
and ecologically separated, critical habitat designations were 
developed separately. The proposed rule to designate critical habitat 
for Chorizanthe robusta var. robusta was sent to the Federal Register 
on January 16, 2001, and was published in the Federal Register February 
15, 2001 (66 FR 10419). The proposed critical habitat designation 
included approximately 660 ha (1,635 ac) of lands in Santa Cruz and 
Monterey Counties as critical habitat. The publication of the proposed 
rule opened a 60-day public comment period, which closed on April 16, 
2001. On May 3, 2001, we published technical corrections to the 
proposal to correct a mapping error that had been published in the 
proposal with respect to the location of Unit D (66 FR 22141). We 
accepted comments until June 4, 2001 on this correction. On September 
19, 2001, we published a notice announcing the reopening of the comment 
period on the proposal to designate critical habitat for Chorizanthe 
robusta var. robusta, and a notice of availability of the draft 
economic analysis on the proposed determination (66 FR 48228). This 
second public comment period closed on October 19, 2001. On February 1, 
2002, the Office of the Secretary of the Interior published a notice 
reopening the comment period until February 15, 2002 (67 FR 4940). The 
comment period was reopened to allow individuals to resubmit comments 
that we may not have received due to the Department's Internet access, 
including the receipt of outside e-mail, being shut down.

Summary of Comments and Recommendations

    We contacted appropriate Federal, State, and local agencies, 
scientific organizations, and other interested parties and invited them 
to comment. In addition, we invited public comment through the 
publication of a legal notice in the Santa Cruz Sentinel on February 
24, 2001. We received individually written letters from seven parties, 
which included three designated peer reviewers, two State agencies, one 
local jurisdiction, and one individual. Approximately 800 additional 
letters were submitted as part of a mailing campaign. Of the seven 
parties who did not respond as part of the mailing campaign, five 
supported the proposed designation and two were opposed. The 2 
commenters opposing the proposal were specifically opposing designation 
of critical habitat on lands they own or manage, and were requesting 
that these areas be excluded from critical habitat designation. Of the 
800 additional letters, 23 were opposed, 1 was neutral, and the 
remaining were in support of the critical habitat designation.
    We reviewed all comments received for substantive issues and new 
information regarding critical habitat for Chorizanthe robusta var. 
robusta. Similar comments were grouped into general issues and are 
addressed in the following summary.
    Comment 1: The University of California at Santa Cruz requested 
that their lands be excluded from the Pogonip unit of the critical 
habitat designation because no suitable habitat for Chorizanthe robusta 
var. robusta occurs there.
    Our Response: For the proposed designation, we frequently used U.S. 
Geological Survey (USGS) Township/Range/Section boundaries to provide 
the legal description of the unit locations. The use of recently 
acquired high resolution aerial photographs dating from April 2000, and 
the use of Universal Transverse Mercator (UTM)

[[Page 36826]]

coordinates to provide the legal descriptions, has enabled us to 
undertake more precise mapping for the final designation. After 
conducting this new analysis, we found that the University lands do not 
contain the primary constituent elements needed to ensure the 
conservation of C. r. var. robusta. Therefore, we removed these lands 
from the designation, reducing the size of the Pogonip unit from 165 ha 
(410 ac) to 64 ha (159 ac).
    Comment 2: The Pajaro Valley Unified School District (District) 
requested that District lands be excluded from the Freedom unit because 
the unit was mapped inaccurately, and included buildings and landscaped 
areas.
    Our Response: In the proposal, the map showing the location of the 
Freedom unit was in error. We published a technical correction in the 
Federal Register on May 3, 2001 (66 FR 22141). As discussed in Comment 
1 above, we now have access to more recent aerial photos, and are able 
to map boundaries using UTM coordinates. Therefore, we are able to more 
accurately map areas containing the primary constituent elements. This 
4-ha (10-ac) unit is comprised of local agency lands (Pajaro Valley 
Unified School District) and private lands. We modified the boundaries 
of this unit to eliminate several hundred square meters of a baseball 
field from one corner of the unit. However, some of the District's land 
contains Chorizanthe robusta var. robusta and its primary constituent 
elements and remains as part of unit D.
    Comment 3: The CDPR commented that a population of spineflower 
observed at Manresa State Beach was Chorizanthe robusta var. robusta, 
and not Monterey spineflower (Chorizanthe pungens var. pungens), as the 
Service stated in a companion critical habitat proposal for Monterey 
spineflower.
    Our Response: The records available to us at the time the two 
proposed critical habitat designations were being prepared for 
Chorizanthe pungens var. pungens and Chorizanthe robusta var. robusta 
indicated that the populations of spineflower at Manresa State Beach 
were Chorizanthe pungens var. pungens. A site visit was subsequently 
made by State Park staff and a local species expert to Manresa State 
Beach, and they clarified that the currently extant populations of 
spineflower at Manresa State Beach are C. r. var. robusta (C. 
Rutherford, in litt., 2001). However, since we were not aware of the 
presence of C. r. var. robusta at Manresa State Beach at the time of 
the proposed designation, we did not propose critical habitat for C. r. 
var. robusta at that location.
    Under the Act and APA, we are required to allow the public an 
opportunity to comment on the proposed rulemaking. Therefore, because 
these populations were not in the proposed rule, we are unable to 
consider these areas in the final rule.
    Comment 4: One peer reviewer suggested expanding the list of 
primary constituent elements to include such factors as seed 
germination requirements, substrate salinity, microreliefs and 
microclimates within local habitats, seasonal and yearly groundwater 
levels, and bird populations that migrate within the range of 
Chorizanthe robusta var. robusta.
    Our Response: While we recognize that these factors may be 
important components of the habitats within which Chorizanthe robusta 
var. robusta is found, we do not have sufficient information at this 
time that indicates that they are the primary factors responsible for 
the distribution of C. r. var. robusta throughout its range.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited independent opinions from three knowledgeable 
individuals with expertise in one or several fields, including 
familiarity with the species, familiarity with the geographic region 
that the species occurs in, and familiarity with the principles of 
conservation biology. All three of the peer reviewers supported the 
proposal, and provided us with comments which were summarized in the 
previous section and incorporated into the final rule.

Summary of Changes From the Proposed Rule

    Based on a review of public comments received on the proposed 
determination of critical habitat, we have reevaluated our proposed 
designation and included several changes to the final designation of 
critical habitat. These changes include the following:
    (1) We clarified the description of the primary constituent 
elements and changed the number of primary constituent elements from 
six to four elements. We believe that two of the primary constituent 
elements included in the proposed designation are better described as 
features of the landscape. The two primary constituent elements that 
were included in the proposed rule but deleted in the final rule are: 
pollinator activity between existing colonies of Chorizanthe robusta 
var. robusta, and seed dispersal mechanisms between existing colonies 
and other potentially suitable sites. The two deleted elements are 
features of the landscape discussed in the section of this rule 
entitled Special Management Considerations or Protections and 
therefore, we did not include them as primary constituent elements.
    (2) We added a section describing the Special Management 
Considerations or Protections that Chorizanthe robusta var. robusta may 
require. We believe that this new section will assist land managers in 
developing management strategies for C. r. var. robusta on their lands.
    (3) We made revisions to the unit boundaries. These changes were 
made based on information supplied by commenters, as well as the use of 
the high resolution aerial photos, indicating either that the primary 
constituent elements were not present in certain portions of the 
proposed unit, or that certain changes in land use had occurred on 
lands within the proposed designation that would preclude those areas 
supporting the primary constituent elements. The use of recently 
acquired high resolution aerial photographs dating from April 2000 
enabled us to undertake this more precise mapping.
    A brief summary of the modifications made on each unit is given 
below:

Unit A: Pogonip Unit

    Modifications were made to this unit to exclude areas that do not 
contain the primary constituent elements, including urban and 
industrial areas, and heavily forested areas through the use of high 
resolution imagery. These modifications resulted in a reduction from 
165 ha (410 ac) in the proposed rule to 64 ha (159 ac) that are 
primarily within Pogonip Park in the city of Santa Cruz.

Unit B: Branciforte Unit

    Minor modifications were made to this unit to remove paved areas 
and heavily forested areas. These modifications resulted in a reduction 
from 5 ha (11 ac) to 4 ha (9 ac).

Unit C: Aptos Unit

    Modifications were made to this unit to remove heavily forested 
areas and areas with unsuitable soil types, while still maintaining 
connectivity between patches of suitable soil types. These 
modifications resulted in a reduction from 32 ha (78 ac) to 28 ha (70 
ac).

Unit D: Freedom Unit

    Unit D consists of grasslands and sandy areas in openings within

[[Page 36827]]

maritime chaparral and oak woodland. This 4-ha (10-ac) unit is 
comprised of private and Pajaro Valley Unified School District lands. 
This unit was modified to eliminate several hundred square meters of a 
baseball field from one corner of the unit.

Unit E: Buena Vista Unit

    Unit E consists of grasslands within maritime chaparral and oak 
woodland on the privately owned Buena Vista parcel. We modified the 
unit by removing lands in a watershed in which the Chorizanthe robusta 
var. robusta is not known to occur. These modifications resulted in a 
reduction from 75 ha (185 ac) to 55 ha (135 ac).

Unit F: Sunset Unit

    Unit F consists of coastal dune habitat, and is identical to 
critical habitat that is being designated for the Chorizanthe pungens 
var. pungens. Modifications were made to this unit to eliminate the 
beaches within the surf zone along the western boundary of this unit. 
The acreage included in this unit was reduced from 50 ha (130 ac) to 35 
ha (86 ac). All of this unit is within Sunset State Beach.

Unit G: Marina Unit

    In 1992, a population of what was believed to be Chorizanthe 
robusta var. robusta was discovered on the coastal dunes between Marina 
and Seaside (Monterey County), in the course of surveys performed in 
preparation for the transfer of Department of Defense (DOD) lands 
formerly known as Fort Ord to the CDPR; this same stretch of dunes also 
supports the threatened C. p. var. pungens and the threatened western 
snowy plover (Charadrius alexandrinus nivosus) (U.S. Army Corps of 
Engineers (ACOE) 1997). We originally proposed this unit due to the 
reported discovery of the C. r. var. robusta population and to 
establish a contiguous area of habitat along Monterey Bay because 
fragmentation of habitat is a threat to the species. However, based on 
subsequent discussions with the botanist and the project manager that 
directed the botanical surveys on these lands, and the fact that no 
voucher specimens exist for C. r. var. robusta in this unit, we believe 
that there is not enough evidence to verify that a population of C. r. 
var. robusta occurs at this location (P. Cylinder, pers comm. 2001; R. 
Morgan, pers. comm. 2001). Therefore, because this unconfirmed location 
is outside the known range of the species and no historical collections 
have ever been made from this site, the proposed critical habitat, Unit 
G, was removed from the critical habitat designation. The acreage of 
this unit in the proposed rule was 325 ha (805 ac). Further 
calculations indicate that the elimination of the unit decreases the 
designation of critical habitat by 328 ha (811 ac) due to a revision in 
our calculations.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 of the Act also requires 
conferences on Federal actions that are likely to result in the 
destruction or adverse modification of proposed critical habitat. In 
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.'' 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 result in any regulatory requirements for these actions.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known, using the 
best scientific and commercial data available, habitat areas that 
provide essential life-cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat for a 
species, to the extent such habitat is determinable, at the time of 
listing. When we designate critical habitat at the time of listing or 
under short court-ordered deadlines, we may not have sufficient 
information to identify all areas essential for the conservation of the 
species. Nevertheless, we are required to designate those areas we know 
to be critical habitat, using the best information available to us.
    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.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from recovery plans, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies,

[[Page 36828]]

and biological assessments or other unpublished materials.
    Habitat is often dynamic, and populations may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) of 
the Act and to the regulatory protections afforded by the Act's section 
7(a)(2) jeopardy standard and section 9 prohibitions, as determined on 
the basis of the best available information at the time of the action. 
We specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12) we used the best scientific information available to determine 
areas that contain the physical and biological features that are 
essential for the conservation of Chorizanthe robusta var. robusta. 
This included information from CNDDB (2000), soil survey maps (Soil 
Conservation Service 1980), recent biological surveys and reports, 
additional information provided by interested parties, and discussions 
with botanical experts. We also conducted site visits at four of the 
known locations (Pogonip, Freedom, Buena Vista, and Sunset State 
Beach).
    We also reviewed the goals for the delisting of Chorizanthe robusta 
var. robusta included in our draft recovery plan (Service 2000). The 
criteria for delisting C. r. var. robusta include: (1) The permanent 
protection of a minimum of 10 spineflower populations through 
establishment of new populations or the discovery of other new or 
historic populations; (2) with each population maintaining a minimum of 
1,000 individuals for a period of 10 years that includes a normal 
rainfall cycle; and (3) the development and implementation of 
management plans for all sites on park lands and private lands.
    The draft plan calls for the following recovery actions: (1) 
Protect habitat for Chorizanthe robusta var. robusta by working with 
local lead agencies; (2) manage habitat as needed at all locations that 
support extant populations; (3) conduct research that will contribute 
to developing appropriate management actions, including regular 
monitoring for population trends and potential threats; (4) establish 
new populations in appropriate habitat within the historic range of the 
species; and (5) increase public awareness of the species and its 
associated habitats through various outreach efforts. At the time the 
recovery plan was prepared, we were aware of only four populations; at 
the current time, we are aware of eight populations. Because the 
criteria for delisting C. r. var. robusta include the permanent 
protection of a minimum of 10 sites, we believe protection of all eight 
known sites is necessary for the long-term persistence of the species.
    All of the critical habitat units are occupied by either above-
ground plants or seed banks. In addition, each of the units probably 
contains areas that are considered currently unoccupied by the species. 
``Occupied'' is defined here as an any area with above-ground C. r. 
var. robusta plants or a C. r. var. robusta seed bank of indefinite 
boundary. Current surveys need not have identified above-ground 
individuals for the area to be considered occupied because plants may 
still exist at the site as part of the seed bank (Given 1994). All 
occupied sites contain some or all of the primary constituent elements 
and are essential to the conservation of the species, as described 
below. ``Unoccupied'' is defined here as an area that contains no 
above-ground C. r. var. robusta plants and is unlikely to contain 
currently viable seeds.
    Determining the specific areas that this taxon occupies is 
difficult for several reasons: (1) The distribution of C. r. var. 
robusta appears to be more closely tied to the presence of sandy soils 
than to specific plant communities; the plant communities may undergo 
changes over time which, due to the degree of cover that is provided by 
that vegetation type, may or may not favor the growth of C. r. var. 
robusta above-ground; (2) the method in which the current distribution 
of C. r. var. robusta is mapped can be variable, depending on the scale 
at which patches of individuals are recorded (e.g. many small patches 
versus one large patch); and (3) depending on the climate and other 
annual variations in habitat conditions, the extent of the 
distributions may either shrink and temporarily disappear, or, if there 
is a residual seed bank present, enlarge and cover a more extensive 
area. Because it is logistically difficult to determine how extensive 
the seed bank is at any particular site and because above-ground plants 
may or may not be present in all patches within a site every year, we 
cannot quantify in a meaningful way what proportion of each critical 
habitat unit may actually be occupied by C. r. var. robusta. Therefore, 
patches of unoccupied habitat are interspersed with patches of occupied 
habitat; the inclusion of unoccupied habitat in our critical habitat 
units reflects the dynamic nature of the habitat and the life history 
characteristics of this taxon. Both occupied and unoccupied areas that 
are designated as critical habitat are essential to the conservation of 
the species. Unoccupied areas provide areas into which populations 
might expand, provide connectivity or linkage between colonies within a 
unit, and support populations of pollinators and seed dispersal 
organisms.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features (primary 
constituent elements) that are essential to the conservation of the 
species and that may require special management considerations or 
protection. These include, but are not limited to--space for individual 
and population growth, and for normal behavior; food, water, air, 
light, minerals or other nutritional or physiological requirements; 
cover or shelter; sites for germination, or seed dispersal; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    Much of what is known about the specific physical and biological 
requirements of Chorizanthe robusta var. robusta is described in the 
Background section of this final rule. Based on the best available 
information at this time, the primary constituent elements of critical 
habitat for C. r. var. robusta are:
    (1) Sandy soils associated with active coastal dunes and inland 
sites with sandy soils;

[[Page 36829]]

    (2) Plant communities that support associated species, including 
coastal dune, coastal scrub, grassland, maritime chaparral, and oak 
woodland communities, and have a structure such that there are openings 
between the dominant elements (e.g. scrub, shrub, oak trees, clumps of 
herbaceous vegetation);
    (3) Plant communities that contain little or no cover by nonnative 
species which would complete for resources available for growth and 
reproduction of Chorizanthe robusta var. robusta; and
    (4) Physical processes, such as occasional soil disturbance, that 
support natural dune dynamics along coastal areas.

Site Selection

    We selected critical habitat areas to provide for the conservation 
of Chorizanthe robusta var. robusta, at the single confirmed coastal 
site and five inland sites where it was known to occur at the time the 
proposal was prepared. A second coastal site, on the lands formerly 
known as Fort Ord, was proposed, but is not being designated as 
critical habitat because the identity of the plants at the location has 
recently come into question. Historic locations for which there are no 
recent records of occupancy (within the last 25 years) were not 
proposed for designation. At a number of these sites, including Alameda 
in Alameda County, Colma in San Mateo County, and Los Gatos and San 
Jose in Santa Clara County, the plant has not been seen for 
approximately 100 years; this, combined with the consideration that 
these locations have been urbanized, leads us to conclude that a 
critical habitat designation would be inappropriate for these sites.
    Additional areas where Chorizanthe robusta var. robusta has been 
documented include one at Manresa State Beach, just seaward from the 
community of La Selva Beach in Santa Cruz County. Chorizanthe robusta 
var. robusta was observed near the entrance to the Beach in 1979, but 
it has not been seen since then and may be extirpated (CNDDB 2000).
    Another population of Chorizanthe was known from the south end of 
the Manresa State Beach on a bluff top location, but it had been 
mistakenly identified as Chorizanthe pungens var. pungens (Monterey 
spineflower). The correct identity of the population was not determined 
until preparation of the final critical habitat designation was 
underway (C. Rutherford, in litt., 2001). Another population is located 
south of Empire Grade and north of Wilder Ranch State Park on private 
land and contains approximately 1,000 individuals (G. Hayes, in litt., 
2001). In addition, Pajaro Valley Unified School District lands contain 
Chorizanthe robusta var. robusta colonies adjacent to Unit D, and 
associated with the colonies that are included within this unit. These 
three areas were brought to our attention after the proposed critical 
habitat designation had been published.
    Under the Act and the Administrative Procedure Act (5 U.S.C. 702 
and 706), we are required to allow the public an opportunity to comment 
on the proposed rulemaking. Therefore, because these sites were not 
included in the proposed rule, we are not including them in the final 
rule.
    It is important to note that lands that support these populations 
do not appear to be threatened by actions that may negatively affect 
the species or its habitat. Because these areas are occupied by 
Chorizanthe robusta var. robusta, any actions in which there is a 
Federal nexus and that may affect the species will require consultation 
under section 7 of the Act.
    Another area where Chorizanthe robusta var. robusta has been 
documented within the last 25 years is an area north of the community 
of Soquel in Santa Cruz County, and bounded by Paul Sweet Road to the 
west, Rodeo Gulch Road to the east, and as far north as Mountain View 
Road. Collections from this area were made in 1936, 1960, and 1977; 
although this area has undergone some scattered development, much of 
the area remains rural, and populations of C. r. var. robusta may 
persist in this area. However, due to the size of this area and our 
lack of information needed to delineate boundaries more specifically, 
we were not able to propose critical habitat in this area.
    We do not believe this critical habitat designation alone will be 
sufficient to conserve Chorizanthe robusta var. robusta, a species in 
danger of extinction due to the highly restricted range in which the 
species is known to occur. The draft recovery plan for C. r. var. 
robusta (Service 2000) proposes as a recovery task ``the 
reestablishment of populations within the historic range of the species 
if appropriate habitat can be located.'' The task of locating 
appropriate habitat, which would entail developing a predictive model 
based on habitat characteristics (similar to, but more detailed than, 
the constituent elements described in this final rule), followed by 
field surveys and coordination with other agencies, has not yet been 
initiated. Once these data have been gathered and the recovery plan is 
finalized, we may revisit critical habitat designation for this 
species, if appropriate.
    The long-term conservation of Chorizanthe robusta var. robusta is 
dependent to a great extent upon the protection of existing population 
sites and on maintaining ecological functions within these sites, 
including connectivity between sites within close geographic proximity 
to facilitate pollinator activity and seed dispersal mechanisms, and 
the ability to maintain disturbance factors (for example dune dynamics 
at the coastal sites, and fire disturbance at inland sites) that 
maintain the openness of vegetation cover upon which the species 
depends. The areas we are designating as critical habitat provide some 
or all of the habitat components essential for the conservation of C. 
r. var. robusta.

Special Management Considerations or Protections

    Special management considerations or protections may be needed to 
maintain the primary constituent elements for Chorizanthe robusta var. 
robusta within the units being designated as critical habitat. In some 
cases, protection of existing habitat and current ecological processes 
may be sufficient to ensure that populations of C. r. var. robusta are 
maintained, and have the ability to reproduce and disperse into 
surrounding habitat at those sites. In other cases, however, active 
management may be needed to maintain the primary constituent elements 
for C. r. var. robusta. We have outlined below the most likely kinds of 
special management and protection that C. r. var. robusta may require.
    (1) In near-coastal areas, the supply and movement of sand along 
the coast must be maintained to create the dynamic dune habitats that 
are needed for Chorizanthe robusta var. robusta.
    (2) In more interior locations, the sandy soils on which 
Chorizanthe robusta var. robusta is found should be maintained to 
optimize conditions for the species. Physical properties of the soil, 
such as its chemical composition, salinity, and drainage capabilities 
would best be maintained by limiting or restricting the use of 
herbicides, fertilizers, or other soil amendments.
    (3) The associated plant communities must be maintained to ensure 
that the habitat needs of pollinators and dispersal agents are 
maintained. The use of pesticides should be limited or restricted so 
that viable populations of pollinators are present to facilitate 
reproduction of Chorizanthe robusta var. robusta. Fragmentation of 
habitat through construction of roads and certain types of fencing 
should be

[[Page 36830]]

limited so that seed dispersal agents may move seed of C. r. var. 
robusta throughout the unit.
    (4) In some plant communities, it may be important to maintain a 
mosaic of different-aged stands of coastal scrub or maritime chaparral 
patches so that openings that support Chorizanthe robusta var. robusta 
will be maintained. Depending on location, the use of prescribed fire, 
thinning, or other forms of vegetation management may be useful in 
creating and maintaining this type of mosaic.
    (5) In all plant communities where Chorizanthe robusta var. robusta 
occurs, invasive, non-native species such as harding grass (Phalaris 
aquaticus), veldt grass (Ehrharta spp.), European beachgrass, iceplant, 
and other species need to be actively managed to maintain the open 
habitat that C. r. var. robusta needs.
    (6) Certain areas where Chorizanthe robusta var. robusta occurs may 
need to be fenced to protect them from accidental or intentional 
trampling by humans and livestock. While C. r. var. robusta appears to 
withstand light to moderate disturbance, heavy disturbance may be 
detrimental to its persistence. Seasonal exclusions may work in certain 
areas to protect C. r. var. robusta during its critical season of 
growth and reproduction.

Criteria Used To Identify Critical Habitat

    We believe it is important to preserve all areas that currently 
support native populations of C. r. var. robusta because the number of 
populations that have been extirpated and the reduction in range that 
the species has undergone place a great importance on the conservation 
of all the known remaining sites. We are designating critical habitat 
at six of the eight known locations of C. r. var. robusta. We are not 
designating the other two known sites and a potential expansion of the 
Aptos Unit as critical habitat for reasons described above in the Site 
Selection section. When possible, areas that were in close geographic 
proximity were included in the same unit to emphasize the need to 
maintain connectivity between different populations or colonies. We 
also included habitat for C. r. var. robusta adjacent to and contiguous 
to areas of known occurrences to maintain landscape scale processes, 
such as maintaining normal rates of surface and subsurface water flow, 
normal rates of erosion, maintaining the composition and structure of 
the plant community, and maintaining wildlife/plant interactions. Each 
unit contains habitat that is occupied by C. r. var. robusta. 
    The proposed designated critical habitat units were delineated by 
creating data layers in a geographic information system (GIS) format of 
the areas of known occurrences of Chorizanthe robusta var. robusta, 
using information from CNDDB (2000), recent biological surveys and 
reports, our draft recovery plan for this species, and discussions with 
botanical experts. These data layers were created on a base of USGS 
7.5' quadrangle maps obtained from the State of California's Stephen P. 
Teale Data Center. We defined the boundaries for the designated 
critical habitat units using a combination of: (1) Public Land Survey 
(PLS) coordinates of township, range, and section; (2) known landmarks 
and roads; and (3) a protracted PLS grid system used to infill grid 
coordinates within Spanish land grant areas where actual PLS does not 
exist. During preparation of the final rule, we found several 
discrepancies between the legal description of the boundaries of the 
critical habitat units and the boundaries of the units as depicted in 
the maps accompanying the proposed rule. The discrepancies resulted 
primarily from our use of data layers created at a small scale (e.g., 
1:100,000 scale USGS mapping) during preparation of the maps of 
proposed critical habitat. For the final rule, the mapped boundaries of 
critical habitat first were corrected to be consistent with the 
boundaries as described in the proposed rule. We then modified the 
boundaries of proposed critical habitat using information on the 
location of existing developed areas from recent aerial imagery (April 
2000), additional information from botanical experts, and comments on 
the proposed rule. The boundaries of the final critical habitat units 
are defined by UTMs.
    In selecting areas of designated critical habitat, we made an 
effort to avoid developed areas, such as housing developments, that are 
unlikely to contribute to the conservation of Chorizanthe robusta var. 
robusta. However, we did not map critical habitat in sufficient detail 
to exclude all developed areas, or other lands unlikely to contain the 
primary constituent elements essential for the conservation of C. r. 
var. robusta. Areas within the boundaries of the mapped units, such as 
buildings, roads, parking lots, and other paved areas, lawns, and other 
urban landscaped areas will not contain one or more of the primary 
constituent elements. Federal actions limited to these areas, therefore 
would not trigger a section 7 consultation, unless they affect the 
species and/or primary constituent elements in adjacent critical 
habitat.

Critical Habitat Designation

    The critical habitat areas described below constitute our best 
assessment at this time of the areas needed for the conservation and 
recovery of Chorizanthe robusta var. robusta. Critical habitat being 
designated for C. r. var. robusta includes six units that currently 
sustain the species. The areas being designated as critical habitat are 
either along the coast (Sunset State Beach), or are at inland sites 
ranging from Pogonip Park southeast to the Buena Vista property in 
southern Santa Cruz County, and include the appropriate dune, scrub, 
maritime chaparral, or oak woodland habitat that include the sandy 
openings which support C. r. var. robusta. 
    A brief description of each critical habitat unit is given below:

Unit A: Pogonip Unit

    Unit A consists of sandy openings within mixed forest habitat 
within Pogonip Park in the City of Santa Cruz. Of the 64 ha (159 acre) 
unit, 62 ha (152 ac) are owned and managed by the City; and the 
remainder are privately owned. As of the year 2000, two colonies 
comprising approximately 800 individuals occupied this site. This unit 
is important to the conservation of the taxon because it supports 
extant colonies of Chorizanthe robusta var. robusta. This unit also 
includes habitat that is important for the expansion of existing 
colonies and connectivity between the two colonies. In addition, it is 
also important because, aside from the Wilder Creek location which we 
were not aware of at the time of the proposed rule, Pogonip Park is the 
most northerly and westerly location known for the species. It is also 
one of only three known locations where C. r. var. robusta is found 
more than 5 km (3 mi) away from the beach. Preserving the genetic 
characteristics that have allowed individuals at this site to survive 
under these slightly different environmental conditions may be 
important for the long-term survival and conservation of C. r. var. 
robusta. 

Unit B: Branciforte Unit

    Unit B consists of an old field/grassland unit within the city 
limits of Santa Cruz. The 4-ha (9-ac) unit is privately owned. As of 
the year 2001, this unit supported a Chorizanthe robusta var. robusta 
population of approximately 500 individuals. This unit also includes 
habitat that is important for the expansion of the existing population. 
This unit is

[[Page 36831]]

important to the conservation of the species because it contains one of 
the only eight known locations of C. r. var. robusta. It is the only 
other unit in close proximity to Unit A.

Unit C: Aptos Unit

    Unit C consists of sandy openings within maritime chaparral. The 28 
ha (70 ac) unit is comprised entirely of private lands. As of the year 
2000, this unit supported a Chorizanthe robusta var. robusta population 
of approximately 3,000 individuals. This unit also includes habitat 
that is important for the expansion of the existing population. It is 
also one of only three locations that supports C. r. var. robusta more 
than 5 km (3 mi) away from the beach. Preserving the genetic 
characteristics that have allowed individuals at this site to survive 
under these slightly different environmental conditions (i.e., more 
inland conditions) may be important for the long-term survival and 
conservation of C. r. var. robusta. 

Unit D: Freedom Unit

    Unit D consists of grasslands and sandy areas in openings within 
maritime chaparral and oak woodland. This 4 ha (9 ac) unit is comprised 
of private and Pajaro Unified School District lands. As of the year 
2001, this unit supports a Chorizanthe robusta var. robusta colony of 
several hundred individuals. Additionally, other colonies of C. r. var. 
robusta occur within a few hundred yards of the first colony; these 
additional colonies are outside the critical habitat boundary. This 
unit is important to the conservation of the taxon because it supports 
one of only eight known extant locations of C. r. var. robusta. This 
unit also includes habitat that is important for the expansion of the 
existing colony and connectivity between the two colonies.

Unit E: Buena Vista Unit

    Unit E consists of grasslands within maritime chaparral and oak 
woodland on the Buena Vista parcel. The 55 ha (135 ac) unit is 
comprised entirely of private lands. As of 1999, this unit supports 
multiple colonies of Chorizanthe robusta var. robusta comprising 
approximately 1,500 individuals. This unit is important to the 
conservation of the species because it is one of only two units that 
supports multiple extant colonies of C. r. var. robusta. This unit also 
includes habitat that is important for the expansion of the existing 
colonies, and connectivity between the multiple colonies.

Unit F: Sunset Unit

    Unit F consists of coastal dune habitat, and is identical to 
critical habitat that is being designated for the Chorizanthe pungens 
var. pungens. All of this 35 ha (86 ac) unit is within Sunset State 
Beach. As of 2001, this unit supports the largest concentration of C. 
r. var. robusta, including dozens of colonies of comprising tens of 
thousands of individuals. This unit is important to the conservation of 
the species because it is only one of two units that supports multiple 
extant colonies of C. r. var. robusta. This unit also includes habitat 
that is important for the expansion of these existing colonies into 
areas that were historically occupied, and for maintaining connectivity 
between the multiple colonies. The unit is also important because it is 
the most southerly location known for the species and the only 
location, aside from Manresa State Beach which was not proposed for 
critical habitat, where C. r. var. robusta is found so close to the 
beach. Preserving the genetic characteristics that have allowed 
individuals at this site to survive under these slightly different 
environmental conditions (i.e., more coastal conditions) may be 
important for the long-term survival and conservation of C. r. var. 
robusta. 
    Lands designated as critical habitat are under private, city, and 
State jurisdiction. The approximate areas of designated critical 
habitat by land ownership are shown in Table 1.

  Table 1.--Approximate Areas in Hectares (ha) and Acres (ac) of Final Critical Habitat for Chorizanthe robusta
                                         var. robusta by Land Ownership
----------------------------------------------------------------------------------------------------------------
            Unit Name                    State              Private           City/Local             Total
----------------------------------------------------------------------------------------------------------------
A. Pogonip......................  ..................  2ha (7 ac)........  62 ha (152 ac)....  64 ha (159 ac)
B. Branciforte..................  ..................  4 ha (9 ac).......  ..................  4 ha (9 ac)
C. Aptos........................  ..................  28 ha (70 ac).....  ..................  28 ha (70 ac)
D. Freedom......................  ..................  4 ha (9 ac).......  less than 1 ha (1   4 ha (10 ac)
                                  ..................                       ac).
E. Buena Vista..................  ..................  55 ha (135 ac)....  ..................  55 ha (135 ac)
F. Sunset.......................  35 ha (86 ac).....  ..................  ..................  35 ha (86 ac)
                                 =====================
----------------------------------------------------------------------------------------------------------------

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) 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. Destruction or 
adverse modification of critical habitat occurs when a Federal action 
directly or indirectly alters critical habitat to the extent it 
appreciably diminishes the value of critical habitat for the 
conservation 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 designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a species proposed for listing or 
result in destruction or adverse modification of proposed critical 
habitat. Conference reports provide conservation recommendations to 
assist the action agency in eliminating conflicts that may be caused by 
the proposed action. The conservation recommendations in a conference 
report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports

[[Page 36832]]

include an opinion that is prepared according to 50 CFR 402.14, as if 
the species was listed or critical habitat designated. We may adopt the 
formal conference report as the biological opinion when the species is 
listed or critical habitat designated, if no substantial new 
information or changes in the action alter the content of the opinion 
(see 50 CFR 402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act 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 
its 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, the 
Federal action agency would ensure that the permitted actions do not 
destroy or adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including instances where critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement, or control has been retained or 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.
    Federal actions that may affect Chorizanthe robusta var. robusta or 
its critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as the ACOE under section 404 of the Clean Water Act (33 U.S.C. 1344 et 
seq.), or any other activity requiring Federal action (i.e., funding, 
authorization) will also continue to be subject to the section 7 
consultation process. Federal actions not affecting critical habitat, 
as well as actions on non-Federal lands that are not federally funded, 
authorized, or permitted do not require section 7 consultation.
    To properly portray the effects of critical habitat designation, we 
must first compare the requirements pursuant to section 7 of the Act 
for actions that may affect critical habitat with the requirements for 
actions that may affect a listed species. Section 7 of the Act 
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 recovery of the listed 
species.
    Common to both definitions is an appreciable detrimental effect on 
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. All of the units we are designating 
are occupied by either above-ground plants or a Chorizanthe robusta 
var. robusta seed bank, and Federal agencies already consult with us on 
activities in areas where the species may be present to ensure that 
their actions do not jeopardize the continued existence of the species. 
Each unit also contains some areas which are considered unoccupied. 
However, we believe, and the economic analysis discussed below 
illustrates, that the designation of critical habitat is not likely to 
result in a significant regulatory burden above that already in place 
due to the presence of the listed species. Few additional consultations 
are likely to be conducted due to the designation of critical habitat.
    Designation of critical habitat could affect the following agencies 
and/or actions: development on private lands requiring permits from 
Federal agencies, such as 404 permits from the ACOE or permits from 
Housing and Urban Development, authorization of release of biological 
control agents by the Department of Agriculture, regulation by the 
Environmental Protection Agency of activities affecting point source 
pollution discharges into waters of the U.S., authorization of Federal 
grants or loans, restoration projects sponsored by the Natural 
Resources Conservation Service, pest control projects undertaken by the 
Animal and Plant Health Inspection Service, and land acquisition by the 
Service's Refuges Division. These actions would be subject to the 
section 7 consultation process. Where federally listed wildlife species 
occur on private lands proposed for development, any habitat 
conservation plans submitted by the applicant to secure a permit to 
take according to section 10(a)(1)(B) of the Act would be subject to 
the section 7 of the Act consultation process. Several other species 
that are listed under the Act occur in the same general areas as 
Chorizanthe robusta var. robusta. Chorizanthe pungens var. pungens 
occurs in close proximity to C. r. var. robusta at Sunset State Beach; 
Gilia tenuiflora ssp. arenaria (sand gilia) occurs at Sunset State 
Beach; western snowy plover occurs at Sunset State Beach; and the Santa 
Cruz long-toed salamander (Ambystoma macrodactylum croceum) occurs on 
the Buena Vista property.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat would 
be those that alter the primary constituent elements to the extent that 
the value of critical habitat for the conservation of Chorizanthe 
robusta var. robusta is appreciably reduced. We note that such 
activities may also jeopardize the continued existence of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly destroy or adversely modify 
critical habitat include, but are not limited to; activities that 
appreciably degrade or destroy native dune, scrub, maritime chaparral, 
and oak woodland communities, including but not limited to: 
inappropriately managed livestock grazing, clearing, discing, 
introducing or encouraging the spread of nonnative species, and heavy 
recreational use.
    If you have questions regarding whether specific activities will 
likely

[[Page 36833]]

constitute adverse modification of critical habitat, contact the Field 
Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES section). 
Requests for copies of the regulations on listed wildlife and inquiries 
about prohibitions and permits may be addressed to the U.S. Fish and 
Wildlife Service, Portland Regional Office, 911 NE 11th Avenue, 
Portland, OR 97232-4181 (503/231-6131; facsimile 503/231-6243).

Relationship to Habitat Conservation Plans

    Currently, there are no habitat conservation plans (HCP) that 
include Chorizanthe robusta var. robusta as a covered species. Section 
10(a)(1)(B) of the Act authorizes us to issue permits for the take of 
listed species incidental to otherwise lawful activities. An incidental 
take permit application must be supported by an HCP that identifies 
conservation measures that the permittee agrees to implement for the 
species to minimize and mitigate the impacts of the permitted 
incidental take. Although ``take'' of listed plants is not prohibited 
by the Act, listed plant species may also be covered in an HCP for 
wildlife species.
    In the event that future HCPs covering C. r. var. robusta are 
developed within the boundaries of designated critical habitat, we will 
work with applicants to ensure that the HCPs provide for protection and 
management of habitat areas essential for the conservation of this 
species. This will be accomplished by either directing development and 
habitat modification to nonessential areas, or appropriately modifying 
activities within essential habitat areas so that such activities will 
not adversely modify the primary constituent elements. The HCP 
development process would provide an opportunity for more intensive 
data collection and analysis regarding the use of particular habitat 
areas by C. r. var. robusta. The process would also enable us to 
conduct detailed evaluations of the importance of such lands to the 
long-term conservation of the species in the context of constructing a 
biologically configured system of interlinked habitat blocks. We will 
also provide technical assistance and work closely with applicants 
throughout the development of any future HCPs to identify appropriate 
management for lands essential for the long-term conservation of C. r. 
var. robusta. Furthermore, we will complete intra-Service consultation 
on our issuance of section 10(a)(1)(B) permits for these HCPs to ensure 
permit issuance will not destroy or adversely modify critical habitat.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, a draft economic analysis was conducted to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for review on September 19, 2001 (66 FR 48228). We 
accepted comments on the draft analysis until this second public 
comment period closed on October 19, 2001.
    Our draft economic analysis evaluated the potential future effects 
associated with the listing of Chorizanthe robusta var. robusta as an 
endangered species under the Act, as well as any potential effect of 
the critical habitat designation above and beyond those regulatory and 
economic impacts associated with listing. To quantify the proportion of 
total potential economic impacts attributable to the critical habitat 
designation, the analysis evaluated a ``without critical habitat'' 
baseline and compared it to a ``with critical habitat'' scenario. The 
``without critical habitat'' baseline represented the current and 
expected economic activity under all modifications prior to the 
critical habitat designation, including protections afforded the 
species under Federal and State laws. The difference between the two 
scenarios measured the net change in economic activity attributable to 
the designation of critical habitat. The categories of potential costs 
considered in the analysis included the costs associated with: (1) 
Conducting section 7 of the Act consultations associated with the 
listing or with the critical habitat, including incremental 
consultations and technical assistance; (2) modifications to projects, 
activities, or land uses resulting from the section 7 of the Act 
consultations; (3) uncertainty and public perceptions resulting from 
the designation of critical habitat; and (4) potential offsetting 
beneficial costs associated with critical habitat including educational 
benefits. The most likely economic effects of critical habitat 
designation are on activities funded, authorized, or carried out by a 
Federal agency.
    Based on our draft analysis, we concluded that the designation of 
critical habitat would have little significant additional regulatory 
burden or associated significant additional costs because of critical 
habitat above and beyond those attributable to the listing of 
Chorizanthe robusta var. robusta. Our economic analysis recognizes 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. Our 
economic analysis also takes into account that unoccupied habitat is 
being designated and that there may be some cost associated with new 
section 7 consultations that would not have occurred but for critical 
habitat being designated. However, we believe all these impacts will be 
either short-term or minimal in cost.
    Although the draft economic analysis concludes that, over the next 
10 years the costs attributable to the designation are expected to be 
approximately $106,000, we anticipate the costs will be even less due 
to the elimination of proposed Unit G from final designation. Costs to 
Federal agencies are expected to be approximately $21,000. Costs to 
State agencies are expected to be approximately $25,000, primarily 
resulting from consultations and project modifications in the Sunset 
unit. Local agencies are not expected to be impacted by the designation 
of critical habitat, principally because activities on local agency 
lands do not typically involve Federal nexuses. Costs to private 
landowners are expected to range from $1,000 to $14,000, primarily 
resulting from consultations and modifications within the Pogonip, 
Branciforte, Freedom, and Buena Vista units (Units A, B, D, and E). 
These estimates are based on the existing consultation history with 
agencies in this area and increased public awareness regarding the 
actual impacts of critical habitat designation on land values. 
Therefore, we conclude that minimal, significant incremental costs are 
anticipated as a result of the designation of critical habitat for 
Chorizanthe robusta var. robusta.
    Following the close of the comment period on the draft economic 
analysis, a final addendum was completed which incorporated public 
comments on the draft analysis. The values presented above may be an 
overestimate of the

[[Page 36834]]

potential economic effects of the designation because the final 
designation has been reduced to encompass 190 ha (469 ac) versus the 
660 ha (1,635 ac) proposed as critical habitat, a reduction of 
approximately 470 ha (1,166 ac).
    A copy of the final economic analysis and a description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting our Ventura 
Fish and Wildlife Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this is a significant 
rule and was reviewed by the Office of Management and Budget (OMB) in 
accordance with the four criteria discussed below.
    (a) In the economic analysis, we determined that 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. Chorizanthe robusta var. robusta was listed 
as endangered in February, 1994. Since that time, we have conducted, 
and will continue to conduct, formal and informal section 7 of the Act 
consultations with other Federal agencies to ensure that their actions 
will not jeopardize the continued existence of Chorizanthe robusta var. 
robusta.
    Under the Act, Federal agencies shall consult with the Service to 
ensure that any action authorized, funded, or carried out by such 
agency is not likely to jeopardize the continued existence of an 
endangered or threatened species or result in the destruction or 
adverse modification of critical habitat. The Act does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored, authorized, or permitted by a 
Federal agency (see Table 2).

    Table 2.--Impacts of Chorizanthe robusta var. robusta Listing and
                      Critical Habitat Designation
------------------------------------------------------------------------
                                                         Additional
                                   Activities            activities
  Categories of activities    potentially affected  potentially affected
                               by species listing    by critical habitat
                                      only             designation \1\
------------------------------------------------------------------------
Federal activities            Activities conducted  Activities by these
 potentially affected \2\.     by the U.S. Army      Federal Agencies in
                               Corps of Engineers,   designated areas
                               the Department of     where section 7 of
                               Housing and Urban     the Act
                               Development, the      consultations would
                               U.S. Department of    not have occurred
                               Agriculture, the      but for the
                               U.S. Environmental    critical habitat
                               Protection Agency,    designation.
                               the U.S. Fish and
                               Wildlife Service,
                               and any other
                               Federal Agencies,
                               including, but not
                               limited to, the
                               authorization of
                               permits under
                               section 404 of the
                               Clean Water Act,
                               the disbursement of
                               grant monies for
                               housing projects,
                               spraying of
                               herbicides or
                               pesticides, the
                               permitting or
                               funding of clean-up
                               activities of
                               contaminants, pest
                               control projects,
                               and land
                               acquisition.
Private or other non-Federal  Activities that       Funding,
 activities potentially        require a Federal     authorization, or
 affected \3\.                 action (permit,       permitting actions
                               authorization, or     by Federal Agencies
                               funding) and may      in designated areas
                               remove or destroy     where section 7 of
                               habitat for           the Act
                               Chorizanthe robusta   consultations would
                               var. robusta by       not have occurred
                               mechanical,           but for the
                               chemical, or other    critical habitat
                               means or              designation.
                               appreciably
                               decrease habitat
                               value or quality
                               through indirect
                               effects (e.g., edge
                               effects, invasion
                               of exotic plants or
                               animals.
------------------------------------------------------------------------
\1\ This column represents activities potentially affected by the
  critical habitat designation in addition to those activities
  potentially affected by listing the species.
\2\ Activities initiated by a Federal agency.
\3\ Activities initiated by a private or other non-Federal entity that
  may need Federal authorization or funding.

    Based upon our knowledge of the species and its ecological needs, 
and the fact that it is so restricted in its range, we conclude that 
any Federal action or authorized action that could potentially result 
in the destruction or adverse modification of critical habitat would 
also be considered as ``jeopardy'' under the Act in areas occupied by 
the species.
    Accordingly, the designation of currently occupied areas as 
critical habitat is not anticipated to have any incremental impacts on 
what actions may or may not be conducted by Federal agencies or non-
Federal persons that receive Federal authorization or funding beyond 
the effects resulting from the listing of this species. Non-Federal 
persons that do not have a Federal ``sponsorship'' in their actions are 
not restricted by the designation of critical habitat. The designation 
of areas as critical habitat where section 7 of the Act consultations 
would not have occurred but for the critical habitat designation may 
have impacts on what actions may or may not be conducted by Federal 
agencies or non-Federal persons who receive Federal authorization or 
funding that are not attributable to the species listing. These impacts 
were evaluated in our economic analysis (under section 4 of the Act; 
see Economic Analysis section of this rule).
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions not jeopardize the continued existence of 
Chorizanthe robusta var. robusta since its listing in 1994. We 
evaluated the impact of designating areas where section 7 of the Act 
consultations would not have occurred but for the critical habitat 
designation in our economic analysis (see Economic Analysis section of 
this rule). The prohibition against adverse modification of critical 
habitat is not expected to impose any additional restrictions to those 
that currently exist on currently occupied land, and will not create 
inconsistencies with other agencies' actions on unoccupied lands.
    (c) This final rule is not expected to materially affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. Federal agencies are currently 
required to ensure that their activities do not jeopardize the 
continued existence of the species, and, as discussed above, we do not 
anticipate that the adverse modification analysis resulting from 
critical habitat designation will have any incremental effects.

[[Page 36835]]

    (d) OMB has determined that this rule may raise novel and legal or 
policy issues. Therefore, this rule is significant under Executive 
Order 12866, and, as a result, has undergone OMB review.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to Federal agencies to require a 
certification statement. In this rule, we are certifying that the 
critical habitat designation for Chorizanthe robusta var. robusta will 
not have a significant effect on a substantial number of small 
entities. The following discussion explains our rationale.
    Small entities include small organizations, such as independent 
non-profit organizations, small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    In determining whether this rule could ``significantly affect a 
substantial number of small entities,'' the economic analysis first 
determined whether critical habitat could potentially affect a 
``substantial number'' of small entities in counties supporting 
critical habitat areas. While SBREFA does not explicitly define 
``substantial number,'' the Small Business Administration, as well as 
other Federal agencies, have interpreted this to represent an impact on 
20 percent or greater of the number of small entities in any industry. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation.
    Development on private land constitutes the only commercial 
activity that could take place within the area of proposed critical 
habitat. To be conservative (i.e., more likely to overstate impacts 
than understate them), the economic analysis assumed that all 
potentially affected parties that may be engaged in development 
activities within critical habitat are small entities. There are 
approximately 35 small residential development and construction 
companies in Santa Cruz County. Because the draft economic analysis 
estimates that, at most, three formal consultations could arise 
involving private entities, the analysis for impacts on small 
businesses assumes that at most three residential/small business 
entities may be affected by the designation of critical habitat for the 
Chorizanthe robusta var. robusta in Santa Cruz County over 10 years.
    In each year, on average, there would likely be less than a single 
consultation for real estate development projects. As a result, less 
than 1 percent of the total number of small residential development and 
construction companies could be affected annually by the designation of 
critical habitat for Chorizanthe robusta var. robusta. Because the 
percentage of small businesses that could be affected by this 
designation is far less than the 20 percent threshold that would be 
considered ``substantial,'' the economic analysis concludes that this 
designation will not affect a substantial number of small entities as a 
result of the designation of critical habitat for Chorizanthe robusta 
var. robusta.
    In general, two different mechanisms in section 7 of the Act 
consultations could lead to additional regulatory requirements for one 
small business, on average, that may be required to consult with us 
each year regarding their project's impact on Chorizanthe robusta var. 
robusta and its habitat. First, if we conclude, in a biological 
opinion, that a proposed action is likely to jeopardize the continued 
existence of a species or adversely modify its critical habitat, we can 
offer ``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or resulting in adverse modification of critical 
habitat. A Federal agency and an applicant may elect to implement a 
reasonable and prudent alternative associated with a biological opinion 
that has found jeopardy or adverse modification of critical habitat. An 
agency or applicant could alternatively choose to seek an exemption 
from the requirements of the Act or proceed without implementing the 
reasonable and prudent alternative. However, unless an exemption were 
obtained, the Federal agency or applicant would be at risk of violating 
section 7(a)(2) of the Act if it chose to proceed without implementing 
the reasonable and prudent alternatives.
    Secondly, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal species, we may 
identify reasonable and prudent measures designed to minimize the 
amount or extent of take and require the Federal agency or applicant to 
implement such measures through non-discretionary terms and conditions. 
We may also identify discretionary conservation recommendations 
designed to minimize or avoid the adverse effects of a proposed action 
on listed species or critical habitat, help implement recovery plans, 
or to develop information that could contribute to the recovery of the 
species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 of the Act 
consultations--can be implemented successfully with, at most, the 
adoption of reasonable and prudent alternatives. These measures, by 
definition, must be economically feasible and within the scope of 
authority of the Federal agency involved in the consultation. Since we 
have not conducted any formal

[[Page 36836]]

consultations for Chorizanthe robusta var. robusta, we can only 
describe the general kinds of actions that may be identified in future 
reasonable and prudent alternatives. These are based on our 
understanding of the needs of the species and the threats it faces, as 
described in the final listing rule and this critical habitat 
designation.
    It is likely that a developer could modify a proposed project or 
take measures to protect Chorizanthe robusta var. robusta. Based on the 
types of modifications and measures that have been implemented in the 
past for plant species, a developer may take such steps as installing 
fencing or re-aligning the project to avoid sensitive areas. The cost 
for implementing these measures for one project is expected to be of 
the same order of magnitude as the total cost of the consultation 
process, i.e., approximately $10,000. It should be noted that 
developers likely would already be required to undertake such measures 
due to regulations under the California Environmental Quality Act. 
These measures are not likely to result in a significant economic 
impact to project proponents.
    In summary, we have considered whether this rule would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons, that it will not affect a 
substantial number of small entities. Furthermore, we believe that the 
potential compliance costs for the number of small entities that may be 
affected by this rule will not be significant. Therefore, we are 
certifying that the designation of critical habitat for Chorizanthe 
robusta var. robust will not have a significant economic impact on a 
substantial number of small entities. Therefore, a regulatory 
flexibility analysis is not required.

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

    In the economic analysis, we determined whether designation of 
critical habitat would cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. Refer to the final economic analysis for a discussion of 
the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare a Statements of 
Energy Effects when undertaking certain actions. The primary land uses 
within designated critical habitat include urban and agricultural 
development, recreation, open space, and conservation facilities. The 
only energy-related facilities located within designated critical 
habitat is a transmission line easement owned by Pacific Gas and 
Electric Company that traverses the Aptos unit, and the only activities 
that we are aware in their easement is management of shrub species to 
reduce fuel load. Therefore, this action does not represent a 
significant action effecting energy production, supply, and 
distribution facilities and no Statement of Energy Effects is required.

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 they must ensure 
that any programs having Federal funds, permits, or other authorized 
activities must ensure that their actions will not adversely modify or 
destroy designated critical habitat.
    (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 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for Chorizanthe robusta var. robusta in a 
takings implication assessment. The takings implications assessment 
concludes that this final rule does not pose significant takings 
implications.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. As discussed above, the designation of critical habitat in 
areas currently occupied by Chorizanthe robusta var. robusta would have 
little incremental impact on State and local governments and their 
activities. The designations may have some benefit to these governments 
in that the areas essential to the conservation of this species are 
more clearly defined, and the primary constituent elements of the 
habitat necessary to the survival of the species are identified. While 
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 of the Act consultation to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have 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 Chorizanthe robusta var. 
robusta.

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

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a valid OMB 
Control Number.

National Environmental Policy Act

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

[[Page 36837]]

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), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. The designated critical 
habitat for Chorizanthe robusta var. robusta does not contain any 
Tribal lands or lands that we have identified as impacting Tribal trust 
resources.

References Cited

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

Author

    The primary author of this final rule is Constance Rutherford, 
Ventura 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, and Transportation.

Regulation Promulgation

    Accordingly, we hereby 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. 
4201-4205; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Section 17.12(h) is amended by revising the entry for 
Chorizanthe robusta (incl. vars. robusta & hartwegii) and by adding an 
entry for Chorizanthe robusta var. hartwegii, in alphabetical order 
under FLOWERING PLANTS, to the List of Endangered and Threatened Plants 
to read as follows:


[sect] 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------   Historic  range        Family name          Status          When       Critical     Special
         Scientific name                Common name                                                                   listed      habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Chorizanthe robusts var.           Scots Valley          U.S.A., CA.........  Polygonaceae-        E                       528           NA           NA
 hartwegii.                         spineflower.                               Buckwheat.
Chorizanthe robusta var. robusta.  Robust Spineflower..  U.S.A., CA.........  Polygonaceae-        E                       528     17.96(b)           NA
                                                                               Buckwheat.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In [sect] 17.96, add critical habitat for Chorizanthe robusta 
var. robusta (robust spineflower), as the first entry under paragraph 
(a) to read as follows:


[sect] 17.96  Critical habitat--plants.

    (a) Flowering plants.
    Family Polygonaceae: Chorizanthe robusta var. robusta (robust 
spineflower).
    (1) Critical habitat units are depicted for Santa Cruz County, 
California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Chorizanthe robusta var. robusta include, but are not limited to, the 
habitat components that provide:
    (i) Sandy soils associated with active coastal dunes, coastal 
bluffs with a deposition of windblown sand, inland sites with sandy 
soils, and interior floodplain dunes;
    (ii) Plant communities that support associated species, including 
coastal dune, coastal scrub, grassland, maritime chaparral, oak 
woodland, and interior floodplain dune communities, and have a 
structure such that there are openings between the dominant elements 
(e.g, scrub, shrub, oak trees, clumps of herbaceous vegetation);
    (iii) Plant communities that contain no or little cover by 
nonnative species which would complete for resources available for 
growth and reproduction of Chorizanthe robusta var. robusta; and
    (iv) Physical processes, such as occasional soil disturbance, that 
support natural dune dynamics along coastal areas.
    (3) Existing features and structures, such as buildings, roads, 
railroads, airports, other paved areas, lawns, and other urban 
landscaped areas, do not contain one or more of the primary constituent 
elements. Federal actions limited to those areas, therefore, would not 
trigger a consultation under section 7 of the Act unless they may 
affect the species and/or primary constituent elements in adjacent 
critical habitat.
(4) Critical Habitat Map Units--Index Map Follows
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(5) Map Unit A (Pogonip): Santa Cruz County, California
    From USGS 7.5' quadrangle map Santa Cruz, California. Lands bounded 
by the following UTM zone 10 NAD83 coordinates (E,N): 585912, 4094380; 
585909, 4094380; 585900, 4094370; 585882, 4094350; 585830, 4094330; 
585798, 4094320; 585775, 4094300; 585747, 4094260; 585722, 4094230; 
585688, 4094200; 585666, 4094200; 585649, 4094210; 585617, 4094230; 
585571, 4094230; 585556, 4094240; 585546, 4094240; 585537, 4094250; 
585505, 4094280; 585487, 4094290; 585468, 4094290; 585442, 4094290; 
585393, 4094290; 585340, 4094290; 585313, 4094300; 585220, 4094330; 
585162, 4094330; 585101, 4094320; 584986, 4094300; 584917, 4094290; 
584886, 4094300; 584871, 4094310; 584856, 4094320; 584839, 4094340; 
584828, 4094360; 584829, 4094380; 584834, 4094390; 584846, 4094400; 
584853, 4094420; 584856, 4094440; 584853, 4094470; 584844, 4094500; 
584811, 4094600; 584798, 4094630; 584787, 4094650; 584773, 4094670; 
584762, 4094700; 584754, 4094740; 584756, 4094770; 584762, 4094790; 
584772, 4094830; 584777, 4094870; 584772, 4094890; 584730, 4094960; 
584729, 4094990; 584738, 4095020; 584751, 4095040; 584767, 4095050; 
584781, 4095060; 584805, 4095060; 584841, 4095070; 584879, 4095080; 
584901, 4095090; 584926, 4095090; 585050, 4095110; 585125, 4095110; 
585174, 4095110; 585168, 4095090; 585166, 4095070; 585169, 4095000; 
585182, 4094980; 585193, 4094970; 585208, 4094960; 585223, 4094950; 
585244, 4094950; 585265, 4094950; 585337, 4094940; 585366, 4094940; 
585388, 4094930; 585397, 4094910; 585414, 4094890; 585446, 4094870; 
585480, 4094860; 585492, 4094850; 585470, 4094830; 585568, 4094740; 
585606, 4094750; 585626, 4094720; 585885, 4094430; 585899, 4094410; 
585907, 4094400; 585912, 4094380.
(6) Map Unit B (Branciforte): Santa Cruz County, California
    (i) From USGS 7.5' quadrangle map Santa Cruz, California. Lands 
bounded by the following UTM zone 10 NAD83 coordinates (E,N): 587730, 
4094370; 587728, 4094390; 587865, 4094380; 587863, 4094360; 587877, 
4094270; 587816, 4094080; 587738, 4094090; 587737, 4094190; 587724, 
4094280; 587730, 4094370.
    (ii) Map Unit A and B: Pogonip and Branciforte Map Follows.
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(7) Map Unit C (Aptos): Santa Cruz County, California
    Santa Cruz County, California.
    Lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 
599729, 4094230; 599670, 4094230; 599629, 4094230; 599577, 4094230; 
599591, 4094270; 599596, 4094290; 599609, 4094340; 599623, 4094400; 
599636, 4094460; 599641, 4094490; 599645, 4094530; 599647, 4094540; 
599647, 4094570; 599648, 4094580; 599653, 4094640; 599655, 4094650; 
599658, 4094660; 599661, 4094660; 599662, 4094660; 599701, 4094670; 
599776, 4094670; 600002, 4094670; 600092, 4094680; 600199, 4094680; 
600204, 4094670; 600209, 4094670; 600220, 4094670; 600225, 4094660; 
600231, 4094660; 600242, 4094650; 600247, 4094640; 600272, 4094620; 
600276, 4094610; 600280, 4094480; 600280, 4094480; 600278, 4094460; 
600276, 4094460; 600274, 4094450; 600271, 4094440; 600270, 4094440; 
600270, 4094430; 600271, 4094420; 600283, 4094380; 600287, 4094250; 
600138, 4094250; 600007, 4094240; 599915, 4094240; 599729, 4094230.
(8) Map Unit D (Freedom): Santa Cruz County, California
    (i) From USGS 7.5' quadrangle map Watsonville West, California. 
Lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 
601011, 4092690; 601113, 4092700; 601116, 4092600; 601223, 4092600; 
601230, 4092400; 601122, 4092400; 601119, 4092500; 601019, 4092490; 
601011, 4092690.
    (ii) Map Units C and D: Aptos and Freedom Map Follows.

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[[Page 36843]]


(9) Map Unit E (Buena Vista): Santa Cruz County, California
    From USGS 7.5' quadrangle map Watsonville West, California. Lands 
bounded by the following UTM zone 10 NAD83 coordinates (E,N): 604046, 
4088420; 604031, 4088480; 604029, 4088530; 604036, 4088560; 604049, 
4088580; 604681, 4088360; 604692, 4087930; 604701, 4087560; 604071, 
4087530; 604064, 4087550; 604057, 4087580; 604053, 4087630; 604060, 
4087660; 604069, 4087670; 604089, 4087690; 604101, 4087700; 604111, 
4087730; 604110, 4087790; 604109, 4087820; 604116, 4087870; 604125, 
4087900; 604131, 4087930; 604130, 4088020; 604119, 4088060; 604114, 
4088090; 604114, 4088110; 604123, 4088170; 604125, 4088250; 604120, 
4088280; 604102, 4088320; 604082, 4088350; 604046, 4088420.
(10) Map Unit F (Sunset): Santa Cruz County, California
    (i) From USGS 7.5' quadrangle map Watsonville West, California. 
Lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 
603772, 4083610; 603885, 4083680; 603931, 4083700; 604008, 4083560; 
604053, 4083490; 604059, 4083450; 604054, 4083420; 604045, 4083380; 
604045, 4083350; 604080, 4083290; 604092, 4083270; 604102, 4083220; 
604103, 4083180; 604109, 4083160; 604122, 4083150; 604149, 4083140; 
604176, 4083120; 604202, 4083090; 604224, 4083060; 604243, 4083040; 
604256, 4083020; 604279, 4083000; 604303, 4082980; 604328, 4082960; 
604349, 4082920; 604373, 4082840; 604386, 4082800; 604412, 4082710; 
604424, 4082670; 604425, 4082640; 604425, 4082610; 604426, 4082580; 
604443, 4082530; 604449, 4082510; 604457, 4082490; 604460, 4082470; 
604480, 4082440; 604492, 4082430; 604504, 4082400; 604512, 4082350; 
604530, 4082300; 604546, 4082260; 604547, 4082250; 604536, 4082200; 
604688, 4081900; 604847, 4081650; 604743, 4081650; 604613, 4081900; 
604539, 4082040; 604449, 4082220; 604338, 4082450; 604258, 4082580; 
604205, 4082690; 604132, 4082830; 604076, 4082910; 603987, 4083070; 
603871, 4083280; 603804, 4083400; 603755, 4083480; 603700, 4083580; 
603772, 4083610.
    (ii) Map Units E and F: Buena Vista and Sunset Map Follows.

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[[Page 36845]]


    Dated: May 17, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-13064 Filed 5-24-02; 8:45 am]
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