[Federal Register Volume 67, Number 103 (Wednesday, May 29, 2002)]
[Rules and Regulations]
[Pages 37336-37354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13063]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH82


Endangered and Threatened Wildlife and Plants; Critical Habitat 
Designation for Chorizanthe robusta var. hartwegii (Scotts Valley 
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. hartwegii (Scotts Valley 
spineflower). Approximately 116 hectares (287 acres) of land fall 
within the boundaries of the critical habitat designation located in 
Santa Cruz County, California. We solicited data and comments from the 
public on all aspects of this proposal, including data on economic and 
other impacts of the designation.

DATES: This rule becomes effective on June 28, 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 the above address (telephone 805/644-1766; 
facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Background

    Chorizanthe robusta var. hartwegii is endemic to Purisima sandstone 
and Santa Cruz mudstone in Scotts Valley in the Santa Cruz Mountains, 
Santa Cruz County, California. C. r. var. hartwegii, a short-lived 
annual species in the buckwheat family (Polygonaceae), is a low-growing 
herb with rose-pink involucral (pertaining to a circle or collection of 
modified leaves surrounding a flower cluster) margins confined to the 
basal portion of the teeth and an erect form of growth. The aggregate 
flowers (heads) are medium in size (1 to 1.5 centimeters (cm) (0.4 to 
0.6 inches (in) in diameter) and distinctly aggregate. Each flower 
produces one

[[Page 37337]]

seed; the seeds are 3.5 to 4.0 millimeters (mm) long. Hooks on the 
spines of the involucre (circle or collection of modified leaves 
surrounding a flower cluster), which surround the seed, facilitate seed 
dispersal.
    Chorizanthe robusta var. hartwegii is one of two varieties of the 
species Chorizanthe robusta. The other variety (Chorizanthe robusta 
var. robusta), known as robust spineflower, is restricted to sandy 
soils in coastal and near-coastal areas in Santa Cruz County. We are 
designating critical habitat for C. r. var. robusta in a separate 
Federal Register notice.
    The range of Chorizanthe robusta var. hartwegii comes close to, but 
does not overlap with that of Chorizanthe pungens var. hartwegiana (Ben 
Lomond spineflower), another closely related taxon in the Pungentes 
section of the genus, in Santa Cruz County. Chorizanthe pungens var. 
hartwegiana is also a federally endangered species; for a detailed 
description of these related taxa, see the Draft Recovery Plan for the 
Robust Spineflower (Service 2000) and references within this plan.
    Chorizanthe robusta var. hartwegii is known from two sites about 
1.6 kilometers (km) (1 mile (mi)) apart at the northern end of Scotts 
Valley in Santa Cruz County, California. For the most part, it co-
occurs with Polygonum hickmanii, a species that is proposed for Federal 
listing as endangered (65 FR 67335). We proposed critical habitat for 
C. r. var. hartwegii and Polygonum hickmanii at the same time; however, 
since the final rule for Polygonum hickmanii has not been published, we 
are only designating critical habitat for C. r. var. hartwegii at this 
time.
    Chorizanthe robusta var. hartwegii is found on gently sloping to 
nearly level fine-textured, shallow soils of the Bonnydoon series over 
outcrops of Santa Cruz mudstone and Purisima sandstone (Hinds and 
Morgan 1995, Soil Conservation Service 1980, U.S. Geologic Survey 
1989). C. r. var. hartwegii occurs with other small annual herbs in 
patches within a more extensive annual grassland habitat. These small 
patches have been referred to as ``wildflower fields'' because they 
support a large number of native herbs, in contrast to the adjacent 
annual grasslands that support a greater number of non-native grasses 
and herbs. While the wildflower fields are underlain by shallow, well-
draining soils, the surrounding annual grasslands are underlain by 
deeper soils with a greater water-holding capacity, and therefore more 
easily support the growth of non-native grasses and herbs. The surface 
soil texture in the wildflower fields tends to be consolidated and 
crusty rather than loose and sandy (Biotic Resources Group (BRG) 1998). 
Elevation of the sites is from 215 to 245 meters (m) (700 to 800 feet 
(ft)) (Hinds and Morgan 1995).
    Chorizanthe robusta var. hartwegii is associated with a number of 
native herbs including Lasthenia californica (goldfields), Minuartia 
douglasii (sandwort), Minuartia californica (California sandwort), 
Gilia clivorum (gilia), Castilleja densiflora (owl's clover), Lupinus 
nanus (sky lupine), Brodiaea terrestris (brodiaea), Stylocline 
amphibola (Mount Diablo cottonweed), Trifolium grayii (Gray's clover), 
and Hemizonia corymbosa (coast tarplant). Non-native species present 
include Filago gallica (filago) and Vulpia myuros (rattail) (California 
Natural Diversity Data Base (CNDDB) 1998; Randy Morgan, biological 
consultant, pers. comm., 1998). In many cases, the habitat also 
supports a crust of mosses and lichens (BRG 1998).
    Chorizanthe robusta var. hartwegii germinates during the winter 
months and flowers from April through June. Although pollination 
ecology has not been studied for this taxon, it is likely visited by a 
wide array of pollinators. Pollinators that have been observed on other 
species of Chorizanthe that occur in Santa Cruz County have included: 
leaf cutter bees (megachilids); at least 6 species of butterflies; 
flies; sphecid wasps; ants; and small beetles (Randy Morgan, biologist, 
Soquel, California, pers. comm., 2000; S. Baron, in litt. 2000; A. 
Murphy, in litt., 2002). In other annual species of Chorizanthe, the 
flowers are protandrous, a reproductive strategy in which the anthers 
(male reproductive structures) mature and shed pollen prior to the 
maturation of the style (female reproductive structures) to receive 
pollen, with a delay of style receptivity being one or two 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 (James Reveal 2001). 
The relative importance of insect pollination and self-pollination to 
seed set is unknown; however, in the closely related Monterey 
spineflower (Chorizanthe pungens var. pungens), the importance of 
pollinator activity to production of viable seed was demonstrated by 
the production of seed with low viability where pollinator access was 
limited (Harding Lawson Associates 2000).
    The plants turn a rusty hue as they dry through the summer months, 
eventually shattering during the fall. Seed is mature by August and 
dispersal is facilitated by the hooked involucral spines, which 
surround the seed and attach it to passing animals. Black-tailed hares 
(Lepus californicus) have been observed to browse on the related 
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 small 
birds.
    For annual plants, maintaining a seed bank (a reserve of dormant 
seeds, generally found in the soil) is important to its 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 give 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 hundred of seeds could be 
produced. In one study on a closely related spineflower, Chorizanthe 
robusta var. robusta, individual 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 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). Seedling 
mortalities of up to 42 percent in the related C. r. var. robusta have 
been caused primarily by the larval (caterpillar) life stage of moths 
belonging to the family Gelichiideae (Baron 2000).
    For purposes of this rule, a cluster of individuals of Chorizanthe 
robusta var. hartwegii will be referred to as a ``colony.'' Because of 
the close proximity of many of the clusters to

[[Page 37338]]

each other, it is uncertain whether clusters biologically represent 
patches within a metapopulation, true colonies, or separate 
populations. The general location of the colonies will be referred to 
as a ``site.''
    While the sites that support large colonies or populations of 
Chorizanthe robusta var. hartwegii most likely also support large seed 
banks and can sustain the species through several years of poor weather 
or bouts of predation, sites that support smaller populations and 
smaller seed banks may be more vulnerable to extirpation. The complex 
of colonies of C. r. var. hartwegii in the Glenwood area are in close 
enough proximity to each other that their seed banks most likely are 
dispersed between colonies; the total number of standing individuals 
and the attendant seed bank most likely are of sufficient magnitude to 
perpetuate the species in the near term, absent significant threats to 
the remaining habitat. In the Polo Ranch area, the colonies of C. r. 
var. hartwegii are also in close enough proximity to each other that 
their seed banks most likely are dispersed between colonies; however, 
the total number of individuals and the attendant seed bank are 
relatively smaller in magnitude here than at the Glenwood site and, 
therefore, this unit may be more vulnerable to extirpation if exposed 
to events such as several years of poor weather or bouts of predation.
    The total number of colonies of Chorizanthe robusta var. hartwegii 
is difficult to count for several reasons: (1) Depending on the scale 
at which colonies are mapped, a larger or smaller number of colonies 
may result, and (2) depending on the climate and other annual 
variations in habitat conditions, the extent of colonies may either 
shrink and temporarily disappear, or enlarge and merge into each other, 
thus appearing as larger but fewer colonies.
    The distribution of colonies is generally concentrated at two 
sites. The Glenwood site is located north of Casa Way and west of 
Glenwood Drive in northern Scotts Valley (see map at end of rule) and 
contains a large number of colonies of Chorizanthe robusta var. 
hartwegii that occur on three privately owned parcels of land. Colonies 
of C. r. var. hartwegii are situated within a 4 hectare (ha) (9 ac) 
preserve on a parcel owned by the Scotts Valley Unified School District 
and referred to as the ``School District'' colony (Denise Duffy and 
Associates 1998). Other colonies at the Glenwood site are located 
approximately 0.20 km (0.13 mi) to the west of the School District 
colony on a parcel of land owned by the Salvation Army (CNDDB 1998) and 
are referred to as the ``Salvation Army'' colonies. Additional colonies 
of C. r. var hartwegii are located on a parcel owned by American Dream/
Glenwood L.P. and are referred to as the ``Glenwood'' colonies; the 
parcel has been approved for development by the City of Scotts Valley 
(Keenan Land Company (KLC) 2001). As currently approved, the project 
would retain colonies on the west side of Glenwood Drive and on the 
east side of Glenwood Drive in portions of the parcel that are being 
designated as open space (Impact Sciences 2001, KLC 2001).
    The first extensive effort to map the distribution and abundance of 
Chorizanthe robusta var hartwegii within the area included in the 
Glenwood unit was carried out in 1992; surveyors mapped 30 
``populations/occurrences'' of C. r. var. hartwegii, with occurrences 
comprising from a low of one individual to over 25,000, and including a 
total of approximately 100,000 individuals. Additionally 82 patches of 
``suitable habitat'' were mapped (Habitat Restoration Group 1992). 
Construction of the Scotts Valley High School in 1999 resulted in the 
loss of approximately 6 populations and occurrences, 890 individuals, 
and 34 patches of ``suitable habitat'' (Denise Duffy and Associates 
1997, 1998).
    In addition to direct removal of habitat, habitat fragmentation 
affects the long-term conservation of the species by reducing 
connectivity among colonies and populations, by altering microsite 
drainage patterns, and by providing access to vectors that cause 
secondary impacts, such as the spread of non-native species. Because 
the high school is located within the central portion of the Glenwood 
unit, its construction significantly fragmented the grasslands that 
were once contiguous and that provided connectivity between the 
Salvation Army, School District, and Glenwood colonies. Two access 
roads, one on each side of Glenwood Drive, have been constructed in the 
last three years; one was placed between colonies of Chorizanthe 
robusta var. hartwegii, and the other was placed between colonies and 
other patches of wildflower fields. In the fall of 2001, an arson 
wildfire burned approximately 12 ha (5 ac) of grassland between Teacup 
and Cupcake Hill, coming close to, but not directly damaging 
individuals of C. r. var. hartwegii. This event highlighted the 
potential for damage to the species' habitat, not only from a fire 
event that is not part of a habitat management plan, but also from the 
vehicles dispatched to extinguish the fire (K. Lyons, consultant, Santa 
Cruz, CA, pers. comm., 2002).
    The second site is referred to as the ``Polo Ranch'' site. Located 
just east of Highway 17 and north of Navarra Drive in northern Scotts 
Valley, this site is approximately 1.6 km (1 mi) east of the Salvation 
Army and School District colonies. Colonies within the Polo Ranch site 
occur on a parcel of land owned by Greystone Homes (Lyons in litt. 
1997); a number of these colonies of Chorizanthe robusta var. hartwegii 
occur within 0.2 km (0.1 mi) of each other (Lyons in litt. 1997, Impact 
Sciences 2000). In 1997 surveys, C. r. var. hartwegii was found at 25 
locations and comprised approximately 8,000 individuals; the abundance 
and distribution was similar to that recorded in 1990 (Lyons in litt. 
1997). We believe that the abundance and distribution of C. r. var. 
hartwegii has been reduced by disturbance to the site by illegal off-
highway vehicle use since that time (Service in litt. 2000).
    Chorizanthe robusta var. hartwegii is threatened with extinction by 
habitat alteration due to secondary impacts of urban development. Urban 
development includes the recent construction and operation of a high 
school; installation and maintenance of water delivery pipelines, 
access roads, and water tanks; and currently existing and proposed 
housing. Over the last decade a variety of housing proposals have been 
considered for two of the parcels; the Glenwood development was 
approved by the City of Scotts Valley in late 2001 (Keenan Land Company 
2001), and the proposed Polo Ranch development is currently on hold due 
to other legal issues.
    The small range of this taxon makes it vulnerable to edge effects 
from adjacent human activities. The kinds of habitat alterations 
expected to impact Chorizanthe robusta var. hartwegii as a result of 
development include changes in soil characteristics such as surface and 
subsurface water flow and soil compaction; increased disturbance due to 
trampling from humans, pets, and bicycle traffic; the inadvertent 
application of herbicides and pesticides; over-spray from landscape 
irrigation, dumping of yard wastes; and the introduction and spread of 
non-native species (Conservation Biology Institute 2000). Due to their 
small size, the proposed preserves and open space areas intended to 
protect C. r. var. hartwegii are inadequate for maintaining viable 
populations of this species (Service in litt. 1998). Studies on habitat 
fragmentation and preserves established in urbanized settings have 
shown that these preserves gradually become destabilized from external 
forces (i.e., changes in the hydrologic conditions,

[[Page 37339]]

soil compaction, etc.), resulting in preserves that are no longer able 
to support the species that they were established to protect (Kelly and 
Rotenberry 1993).
    The chance of random extinction for Chorizanthe robusta var. 
hartwegii is also increased due to the limited area of habitat 
available for this species (Shaffer 1981). Because the colonies are 
concentrated at only a few sites, a random environmental event (e.g., 
fire) or human disturbance potentially could destroy all colonies 
occurring on a parcel, thus diminishing the likelihood of long-term 
persistence.

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 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 this time, we also reviewed the status of Chorizanthe 
robusta. var. robusta. On October 24, 1991 (56 FR 55107), we published 
a proposal to list both varieties of Chorizanthe robusta as endangered 
species. On February 4, 1994, we published a final rule that listed C. 
robusta as endangered, inclusive of C. r. var. hartwegii and C. r. var. 
robusta (59 FR 5499). Proposed designation of critical habitat for 
these taxa was believed prudent but not determinable at the time of 
listing. A Recovery Plan covering two insect species and four plant 
species from the Santa Cruz Mountains, including C. r. var. hartwegii, 
was published in 1998 (Service 1998).
    On June 30, 1999, our failure to designate critical habitat for 
Chorizanthe robusta, inclusive of var. hartwegii and var. 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 was published. On October 16, 2000, the court 
granted the government's request for a stay of this order. 
Subsequently, by a stipulated settlement agreement signed by the 
parties on November 20, 2000, the Service agreed to propose critical 
habitat for C. r. var. hartwegii by January 15, 2001, and to sign a 
final rule by October 19, 2001. The plaintiffs subsequently agreed to 
an extension, approved by the court, 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. hartwegii was sent to the Federal Register 
on January 16, 2001, and was published in the Federal Register February 
15, 2001 (66 FR 10469). In the proposal, we determined that it was 
prudent to designate approximately 125 ha (310 ac) of lands in Santa 
Cruz County as critical habitat. The publication of the proposed rule 
opened a 60-day public comment period, which closed on April 16, 2001. 
On September 19, 2001, we published a notice announcing the reopening 
of the comment period on the proposal to designate critical habitat for 
C. r. var. hartwegii, and a notice of availability of the draft 
economic analysis on the proposed determination (66 FR 48227). 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 notice in the Santa Cruz Sentinel on February 24, 
2001. We received individually written letters from seven parties, 
including three designated peer reviewers, and two environmental 
groups. Approximately 800 additional letters were submitted as part of 
a mailing campaign. Of the seven parties responding individually, five 
supported the proposed designation, one was neutral, and one was 
opposed. 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 and Chorizanthe robusta var. 
hartwegii. Similar comments were grouped into three general issues 
relating specifically to biological issues, procedural and legal 
issues, and economic issues. These are addressed in the following 
summary.

Issue 1: Biological Justification and Methodology

    Comment 1: The proposed designation is not properly supported by 
the best scientific information available. In particular, the Service 
makes ``numerous and unsupported assertions regarding the biology and 
habitat requirements'' of the species, and did not use the data 
available to them.
    Service Response: 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. hartwegii. This information included data from the California 
Natural Diversity Data Base (CNDDB 2000), geologic and soil survey maps 
(USGS 1989, SCS 1980), recent biological surveys and reports, our 
recovery plan for this species, additional information provided by 
interested parties, and discussions with botanical experts. We also 
conducted multiple site visits to the two locations that were proposed 
for designation.
    Comment 2: 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. hartwegii.
    Our Response: While we recognize that these factors may be 
important components of the habitats within which Chorizanthe robusta 
var. hartwegii is found, we do not have sufficient information at this 
time that leads us to believe they are the primary factors essential to 
the conservation of C. r. var. hartwegii throughout its range.
    Comment 3: One commenter submitted a map portraying a recommended 
revision to the proposed critical habitat covering the parcel owned by 
American Dream/Glenwood L.P. which would reduce the extent of critical 
habitat on that parcel. The commenter suggested that the swath of low-
elevation grasslands that occur along Carbonera Creek in the middle of 
the Glenwood Unit could be eliminated from critical habitat, as well as 
a portion of the Carbonera Creek watershed above

[[Page 37340]]

them, because the low-level grasslands do not support the primary 
constituent elements, and the presence of existing residential 
development and the Scotts Valley High School along Glenwood Drive 
makes this area a less desirable movement corridor for wildlife 
functioning as dispersal agents.
    Our Response: The low-elevation grasslands along Carbonera Creek do 
support some of the primary constituent elements, including; a 
grassland community, area to allow for adequate seed dispersal between 
existing colonies and other suitable sites, and areas that allow 
pollinator activity between existing colonies. In particular, the low-
level grasslands along Carbonero Creek provide an important corridor 
for dispersers and pollinators between the colonies on the west and 
east sides of Glenwood Drive. The recent development of the Scotts 
Valley High School has reduced the extent of the corridor between the 
east and west sides of Carbonero Creek, and has therefore increased the 
conservation value and importance of the remaining corridor for 
pollinators and seed dispersers. In the background section of this 
final rule, we have expanded the discussion of potential seed 
dispersers and pollinators, which are part of the primary constituent 
elements, to clarify the role that these elements play in the long-term 
conservation of the species.
    The recovery plan for the species states that to downlist the 
species from endangered to threatened, all known sites would have to be 
in protected status, a habitat conservation plan would have to be in 
place with the City of Scotts Valley, and population numbers would have 
to be stable or increasing (Service 1998). The limited range of the 
species, the limited opportunities for conservation, and the existence 
of threats on all locations where it occurs, makes conservation of the 
species very difficult. Further loss of habitat or compromising the 
ecological processes on which the species depends may eliminate the 
ability of the species to persist.

Issue 2: Legal and Procedural Issues

    Comment 4: The proposed designation fails to designate specific 
areas as critical habitat; rather, it uses a landscape approach.
    Service Response: The critical habitat designation delineates areas 
which contain locations of known individuals of Chorizanthe robusta 
var. hartwegii and areas with the constituent elements that we believe 
are necessary for the long-term conservation of C. r. var. hartwegii. 
The distribution of C. r. var. hartwegii is so restricted that direct 
and indirect threats to its habitat may preclude our ability to recover 
the species. Given the limited distribution of the species, we were 
able to map critical habitat for it with a high level of precision.
    Comment 5: The proposed designation improperly includes areas not 
essential to the conservation of Chorizanthe robusta var. hartwegii.
    Service Response: We recognize that not all parcels of land 
proposed and designated as critical habitat contain the habitat 
components essential to the conservation of Chorizanthe robusta var. 
hartwegii. Some lands included in the proposed designation have not 
been included in this final designation. In developing the final 
designation, we modified boundary lines to exclude areas that obviously 
did not contain the primary constituent elements, and for which we were 
unable to draw more precise boundaries at the time of the proposed 
designation. The use of recently acquired high-resolution aerial 
photographs dating from April 2000 enabled us to undertake this more 
precise mapping. However, due to our mapping scale, some areas not 
essential to the conservation of C. r. var. hartwegii were included 
within the boundaries of final critical habitat. Certain features, such 
as, buildings, roads, other paved areas and urban landscaped areas do 
not contain the primary constituent elements for the species. Service 
staff at the contact numbers provided are available to assist 
landowners in discerning whether or not lands within the critical 
habitat boundaries actually possess the primary constituent elements 
for the species.
    Comment 6: The proposed designation fails to delineate between 
occupied and unoccupied habitat areas.
    Service Response: In this final designation all of the critical 
habitat units are occupied by either standing plants or support a 
Chorizanthe robusta var. hartwegii seed bank, but each of the units 
probably contains areas that are considered currently unoccupied by the 
species. ``Occupied'' is defined here as an area that may or may not 
have an above-ground standing mass of C. r. var. hartwegii during 
current surveys, but if no standing mass is apparent, the site likely 
contains a below-ground seed bank of indefinite boundary. 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 
standing mass of C. r. var. hartwegii and the unlikely existence of a 
viable seed bank. 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. 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.
    The commenter also cited that there is a lack of data to show that 
colonies may temporarily disappear or expand into areas surrounding the 
immediate vicinity of the current year's colony. Determining the 
specific areas that this taxon occupies is difficult for several 
reasons: (1) The way the current distribution of Chorizanthe robusta 
var. hartwegii 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 (2) depending on the climate and other 
annual variations in habitat conditions, the extent of the 
distributions may either shrink and temporarily disappear, or, if there 
is a residual seedbank present, enlarge and cover a more extensive 
area. 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 any meaningful way what proportion of each critical 
habitat unit may actually be occupied by C. r. var. hartwegii .
    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)). Because of the very limited range of Chorizanthe 
robusta var. hartwegii, designating only occupied areas would not meet 
the conservation requirements of the species. Occupied areas, as well 
as the grassland areas around them within the designated units of 
critical habitat which may be occupied in the future, provide the 
essential life-cycle needs of the species and provide some or all of 
the habitat components essential for the conservation (primary 
constituent elements) of C. r. var. hartwegii. We are designating 
critical habitat for C. r. var. hartwegii in all areas that are known 
to currently be occupied by the species. Even so, we believe that the 
small amount of critical habitat that we are designating for C. r. var. 
hartwegii will be insufficient to provide for its recovery because of 
the development projects that are proposed and the secondary impacts 
that will result from

[[Page 37341]]

the development. At this time, we are not aware of additional 
populations of C. r. var. hartwegii nor additional areas that can be 
occupied by the species in the future.
    Comment 7: The Service should review the endangered status of 
Chorizanthe robusta var. hartwegii. Since the listing of the species, 
no new information about the habitats essential to the species had been 
obtained.
    Service Response: Since the time of listing in 1994, we have 
reviewed new information from the CNDDB, biological surveys, botanists 
in the field familiar with the species, and made numerous visits to 
field sites. From this information, we believe that the range of the 
species is limited to the Scotts Valley area. Since the species was 
listed as endangered in 1994, habitat for the species has been 
destroyed due to several development projects, and additional habitat 
has been altered due to secondary impacts resulting from development. 
According to a review of the socioeconomic information available about 
the geographic area presented in the draft economic analysis, pressure 
on the remaining suitable habitat for the species from residential and 
commercial development and recreation, has increased steadily since the 
species was listed in 1994. The increased pressure on the limited area 
currently available for this species reinforces its endangered status 
and the need to designate critical habitat.
    Comment 8: The Service has failed to properly consider the economic 
and other impacts of designating particular areas as critical habitat.
    Service Response: The Service published the economic analysis for 
designating the critical habitat for Chorizanthe robusta var. hartwegii 
on September 19, 2001 (66 FR 48227). There was a 30-day public comment 
period associated with this publication. Comments received on the 
economic analysis are incorporated with the comments received on the 
other portions of the proposed designation in this final rule. In 
addition, an addendum to the economic analysis, incorporating the 
comments received on the economic analysis, has been completed and is 
available upon request (see ADDRESSES section).
    Comment 9: The Service has improperly bifurcated its consideration 
of economic impacts and other factors.
    Service Response: Pursuant to section 4(b)(2) of the Act, we are to 
evaluate, among other relevant factors, the potential economic effects 
of the designation of critical habitat for Chorizanthe robusta var. 
hartwegii. We published our proposed designation in the Federal 
Register on February 15, 2001 (66 FR 10469). At that time, our Division 
of Economics and their consultants, Industrial Economics, Inc., 
initiated the draft economic analysis. The draft economic analysis was 
made available for public comment and review beginning on September 19, 
2001 (66 FR 48227). Following a 30-day public comment period on the 
proposal and draft economic analysis, a final addendum to the economic 
analysis was developed. Both the draft economic analysis and final 
addendum were used in the development of this final designation of 
critical habitat for C. r. var. hartwegii. Please refer to the Economic 
Analysis section of this final rule for a more detailed discussion of 
these documents.
    Comment 10: The Service has not provided a fair and meaningful 
opportunity for comment on its proposed designation.
    Service Response: We published a proposed rule to designate 
critical habitat for Chorizanthe robusta var. hartwegii on February 15, 
2001 (66 FR 10469), and accepted comments from the public for 60 days, 
until April 16, 2001. The comment period was reopened from September 
19, 2001, to October 19, 2001 (66 FR 48227) and February 1, 2002, to 
February 15, 2002 (67 FR 4940), to allow for additional comments on the 
proposed designation, and comments on the draft economic analysis of 
the proposed critical habitat.
    We contacted all appropriate State and Federal agencies, county 
governments, elected officials, and other interested parties and 
invited them to comment. In addition, we invited public comment through 
the publication of a notice in the Santa Cruz Sentinel on February 24, 
2001. We provided notification of the draft economic analysis through 
telephone calls, letters, and news releases faxed and/or mailed to 
affected elected officials, local jurisdictions, and interest groups. 
Additionally, the public had the opportunity to request a public 
hearing, but none was requested.
    Comment 11: The Service should prepare and consider an 
environmental impact statement in keeping with NEPA.
    Service Response: We have determined that an Environmental 
Assessment and/or an Environmental Impact Statement as defined under 
the authority of the National Environmental Policy Act of 1969, need 
not be prepared in connection with regulations adopted pursuant to 
section 4(a) of the Endangered Species Act as amended. A notice 
outlining our reason for this determination was published in the 
Federal Register on October 25, 1983 (48 FR 49244). Also, the public 
involvement and notification requirements under both the Endangered 
Species Act and the Administrative Procedure Act provide ample 
opportunity for public involvement in the process, similar to the 
opportunities for public involvement and economic analysis of effects 
that would be provided in the NEPA process.

Issue 3: Economic Comments

    Comment 12: Some commenters expressed concern that the economic 
analysis fails to adequately describe the potential social welfare 
benefits of the rule such as the averted cost to society if, absent the 
rule, the areas identified in this rule are developed or somehow used 
in a manner that leads to the extinction of the species.
    Our Response: We recognize that social welfare generally benefits 
from the conservation and recovery of endangered and threatened species 
and their habitat as numerous studies have shown that society values 
open space and biodiversity. Benefits to social welfare are composed of 
direct and passive use benefits. Examples of direct use benefits, as it 
may relate to species protection, include such activities as commercial 
cultivation of a species for medicinal purposes (e.g., the Pacific yew 
tree) and tourism associated with a species' presence (e.g., traveling 
to a certain part of the country just to see protected species and 
their habitat). Passive use benefits may include such values as option, 
bequest, and existence values that include, respectively, the value to 
society of future direct use benefits, the value of conserving species 
and their habitat for future generations, and the value gained by 
society from simple acknowledgment that a species continues to exist in 
its natural habitat.
    While we have acknowledged the potential for society to experience 
such benefits in our economic analyses for critical habitat 
rulemakings, our ability to actually measure these benefits in any 
meaningful way is difficult and imprecise at best. While we are aware 
of many studies that attempt to identify the social benefits of open 
space, the use of public lands for recreational purposes, the cost of 
sprawl, etc., few of these studies provide any meaningful information 
that can be used to develop estimates associated with critical habitat 
designation. The designation of critical habitat does not necessarily 
inhibit development of private property, which makes it difficult to 
draw upon the literature of the economic values of open space to 
identify potential benefits

[[Page 37342]]

of critical habitat designation. Also, while some economic studies 
attempt to measure the social value of protecting endangered species, 
the species that are often valued are well known and easy to identify 
(e.g., bighorn sheep) in contrast to less high profile species. 
Furthermore, the values identified in these studies would be most 
closely associated with the listing of a species as endangered or 
threatened because the listing serves to provide the majority of 
protection and conservation benefits under the Act.
    While we will continue to explore ways that will allow us to 
provide more meaningful descriptions of the potential social benefits 
associated with critical habitat designation, we believe that due to 
the current lack of available data specific to these rulemakings, along 
with the time and resource constraints imposed upon the Service, the 
benefits of critical habitat designation can best be expressed in 
biological terms that can then be weighed against the expected social 
costs of the rulemaking.

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 reevaluated our proposed 
designation and made several changes to the final designation of 
critical habitat. These include the following:
    (1) The description of the primary constituent elements was 
modified and clarified. One peer reviewer suggested expanding the list 
of primary constituent elements (see comment 2 in Summary of Comments 
above). However, we took some of these additional elements suggested by 
the peer reviewer, and included discussion of them as features of the 
landscape that needed special management or protections.
    (2) One element (``physical processes. * * * that support natural 
dune dynamics'') was erroneously included in the proposed rule; it has 
been removed from this final rule.
    (3) We added a section describing the Special Management Needs or 
Protections that Chorizanthe robusta var. hartwegii may require. We 
believe that this new section will assist land managers in developing 
management strategies for C. r. var. hartwegii on their lands.
    (4) We made minor revisions to the boundary lines on both units. 
The purpose for these minor changes was to remove areas that do not 
contain 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. These changes reduced the 
Glenwood Unit by 4 percent and Polo Ranch Unit was reduced 15 percent 
by eliminating some of the riparian gallery forest at the western edge 
of the unit that borders Carbonero Creek because the area does not 
support any of the primary constituent elements.

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.
    Section 7(a)(2) of the Act requires Federal agencies to consult 
with the Service to ensure that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification critical habitat. 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 
our regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' Aside from the added protection that may be provided 
under section 7, the Act does not provide other forms of protection to 
lands designated as critical habitat. Because consultation under 
section 7 of the Act does not apply to activities on private or other 
non-Federal lands that do not involve a Federal nexus, critical habitat 
designation would not afford any additional protections under the Act 
against such activities.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 of the Act 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 will often 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. Within the 
geographic area occupied by the species, we will attempt to not 
designate areas that do not now have the primary constituent elements, 
as defined at 50 CFR 424.12(b), which provide essential life cycle 
needs of the species. However, we may be restricted by our minimum 
mapping unit or mapping scale.
    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

[[Page 37343]]

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, at a minimum, be the listing package for the 
species. Additional information may be obtained from a recovery plan, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, unpublished materials, and expert opinion.
    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 the section 9 of the Act 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 section 4(b)(2) of the Act and regulations at 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. hartwegii. 
This information included information from the CNDDB 2000, geologic and 
soil survey maps (USGS 1989, SCS 1979), recent biological surveys and 
reports, our recovery plan for this species, additional information 
provided by interested parties, and discussions with botanical experts. 
We also conducted multiple site visits to the two locations that are 
being designated as critical habitat.
    We also reviewed the goals for downlisting Chorizanthe robusta var. 
hartwegii included in our recovery plan that addresses this species and 
other taxa from the Santa Cruz Mountains (Service 1998).
    The plan calls for the following recovery actions: (1) Secure and 
protect habitat for Chorizanthe robusta var. hartwegii through HCPs, 
conservation easements, or acquisition; (2) manage habitat for the 
species through such actions as control of non-native species, reducing 
impacts from recreation, restoring degraded sites, and regular 
monitoring; (3) learn more about the life history, ecology, and 
population dynamics of the species that will contribute to developing 
appropriate management strategies; (4) increase public awareness of the 
species and its associated habitats through various outreach efforts; 
and (5) use an adaptive management approach to revise management 
strategies over time. Critical habitat alone is not expected to recover 
the species, and it is only one of many strategies that can assist in 
such recovery.
    Determining the specific areas that this taxon occupies is 
difficult for several reasons: (1) The distribution of Chorizanthe 
robusta var. hartwegii 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. hartwegii above ground; (2) the way the 
current distribution of C. r. var. hartwegii is mapped can be variable, 
depending on the scale at which patches of individuals are recorded 
(e.g., many small patches versus one large patch); and (3) depending on 
the climate and other annual variations in habitat conditions, the 
extent of the distributions may either shrink and temporarily 
disappear, or, if there is a residual seedbank present, enlarge and 
cover a more extensive area. 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 any meaningful way what 
proportion of each critical habitat unit may actually be occupied by C. 
r. var. hartwegii. 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. 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. hartwegii is described in the 
Background section of this final rule. Based on the best available 
information at this time, we believe the long-term probability of the 
conservation of C. r. var. hartwegii is dependent upon the protection 
of existing population sites, and the maintenance of ecologic functions 
within these sites, including connectivity between colonies within 
close geographic proximity to facilitate pollinator activity and seed 
dispersal mechanisms, and the ability to maintain disturbance factors 
(for example, fire disturbance) that maintain the openness of plant 
cover on which the species

[[Page 37344]]

depends. In addition, the small range of this species makes it 
vulnerable to edge effects from adjacent human activities, including 
disturbance from trampling and recreational use, the introduction and 
spread of non-native species, and the application of herbicides, 
pesticides, and other contaminants (Conservation Biology Institute 
2000).
    The primary constituent elements of critical habitat for 
Chorizanthe robusta var. hartwegii are:
    (1) Thin soils in the Bonnydoon series that have developed over 
outcrops of Santa Cruz mudstone and Purisima sandstone;
    (2) ``Wildflower field'' habitat that has developed on these thin-
soiled sites;
    (3) A grassland plant community that supports the ``wildflower 
field'' habitat, that is stable over time and in which nonnative 
species are absent or are at a density that has little or no adverse 
effect on resources available for growth and reproduction of 
Chorizanthe robusta var. hartwegii;
    (4) Sufficient areas around each population to allow for 
recolonization to adjacent suitable microhabitat sites in the event of 
catastrophic events;
    (5) Pollinator activity between existing colonies of Chorizanthe 
robusta var. hartwegii;
    (6) Seed dispersal mechanisms between existing colonies and other 
potentially suitable sites; and
    (7) Sufficient integrity of the watershed above habitat for 
Chorizanthe robusta var. hartwegii to maintain soil and hydrologic 
conditions that provide the seasonally wet substrate for growth and 
reproduction of C. r. var. hartwegii.

Special Management Considerations or Protections

    Special management considerations or protections may be needed to 
maintain the primary constituent elements for Chorizanthe robusta var. 
hartwegii within the units being designated as critical habitat. In 
some cases, protection of existing habitat and current ecologic 
processes may be sufficient to ensure that populations of C. r. var. 
hartwegii are maintained at those sites and have the ability to 
reproduce and disperse in surrounding habitat. In other cases, however, 
active management may be needed to maintain the primary constituent 
elements for C. r. var. hartwegii. We have outlined below the most 
likely kinds of special management and protection that C. r. var. 
hartwegii may require.
    (1) The soils on which Chorizanthe robusta var. hartwegii is found 
should be maintained to optimize conditions for its persistence. 
Physical properties of the soil, such as its chemical composition, 
surface crust, and drainage capabilities would best be maintained by 
limiting or restricting the use or application of herbicides, 
fertilizers, or other soil amendments.
    (2) Overspray from irrigation or saturation of soils beyond the 
normal season should also be avoided, as this may alter the structure 
and composition of the grassland community, or render the native 
species more vulnerable to pathogens found in wetter soil regimes.
    (3) The associated plant communities must be maintained to ensure 
that the habitat needs of pollinators and seed dispersal agents are 
maintained. For pollinators, the use of pesticides should be limited or 
restricted so that healthy populations of pollinators are present to 
effect seed set in Chorizanthe robusta var. hartwegii. For dispersal 
agents, the fragmentation of habitat through construction of roads and 
certain types of fencing should be limited so that these agents may 
disperse seed of C. r. var. hartwegii throughout the unit.
    (4) Within the grassland community where Chorizanthe robusta var. 
hartwegii occurs, invasive, non-native species such as bromes and other 
species may need to be actively managed to maintain the patches of open 
habitat that C. r. var. hartwegii needs.
    (5) Certain areas where Chorizanthe robusta var. hartwegii occurs 
may need to be fenced to protect it from accidental or intentional 
trampling by humans and livestock. While C. r. var. hartwegii 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. hartwegii during its critical season of 
growth and reproduction.

Criteria Used To Identify Critical Habitat

    In delineating the critical habitat units, we selected areas that 
provide for the conservation of Chorizanthe robusta var. hartwegii at 
the only two sites where it is known to occur. We believe it is 
important to preserve all areas that currently support native 
populations of C. r. var. hartwegii because the current range of the 
species is so restricted that it places great importance on the 
conservation of all the known remaining sites. The species is currently 
growing on less than 0.4 ha (1 ac) of land. However, habitat is not 
restricted solely to the area where standing individuals can be 
observed. Habitat for the species must include an area that is large 
enough to maintain the ecological functions upon which the species 
depends (e.g., the hydrologic and soil conditions for seed germination 
and establishment, pollinators and seed dispersers). We believe it is 
important to designate an area of sufficient size to maintain landscape 
scale processes that maintain the patches of wildflower field habitat, 
and to minimize the alteration of habitat, such as invasions of non-
native species and recreation-caused erosion, that result from human 
occupancy and human activities occurring in adjacent areas.
    We delineated the critical habitat units by creating data layers in 
a geographic information system (GIS) format of the areas of known 
occurrences of Chorizanthe robusta var. hartwegii using information 
from the California Natural Diversity Data Base (CNDDB 2000) and the 
other information sources listed above. These data layers were created 
on a base of USGS 7.5' quadrangle maps obtained from the State of 
California's Stephen P. Teale Data Center. Because the areas within 
proposed critical habitat boundaries were portions of the San Augustin 
Spanish Land Grant, they have not been surveyed according to the State 
Plan Coordinate System. Therefore, instead of defining proposed 
critical habitat boundaries using a grid of township, range, and 
section, we defined the boundaries for the proposed critical habitat 
units using known landmarks and roads.
    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 through our use of data layers created at a small scale (for 
example 1:100,000 scale USGS mapping) during preparation of the maps of 
proposed critical habitat. For the final rule, we corrected the mapped 
boundaries of critical habitat first 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 (April 2000) aerial 
imagery, additional information from botanical experts, and comments on 
the proposed rule. The boundaries of the final critical habitat units 
are defined by Universal Transverse Mercator (UTM).
    In selecting areas of critical habitat, we made an effort to avoid 
developed areas, such as housing developments, which are unlikely to 
contribute to the conservation of Chorizanthe robusta var. hartwegii. 
For the final rule, we attempted to map critical habitat in sufficient 
detail to exclude all

[[Page 37345]]

developed areas (buildings), or other lands unlikely to contain the 
primary constituent elements essential for the conservation of C. r. 
var. hartwegii. Note that other areas within the boundaries of the 
mapped units, such as roads, parking lots, and other paved areas, 
lawns, and other urban landscaped areas will not contain any of the 
primary constituent elements. Federal actions limited to these areas, 
therefore would not trigger a section 7 of the Act 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 essential for the species' 
conservation. Critical habitat for Chorizanthe robusta var. hartwegii 
is being designated at the only two sites where it is known to occur 
and both units are currently occupied with known occurrences of C. r. 
var. hartwegii. These areas provide the essential life cycle needs of 
the species and the habitat components essential for the survival of C. 
r. var. hartwegii. The two units are primarily within the city limits 
of Scotts Valley in Santa Cruz County, with a small portion within an 
unincorporated area of Santa Cruz County, California, and include the 
grassland habitat that contains the ``wildflower field'' patches on 
which the species depends. Given the threats to the habitat of C. r. 
var. hartwegii discussed above, we believe that these areas are likely 
to require special management considerations and protection.
    Because we consider maintaining hydrologic and soil conditions so 
important in these grasslands, the critical habitat area extends 
outward to the following limits--(1) Upslope from the occurrences of 
Chorizanthe robusta var. hartwegii to include the upper limit of the 
immediate watershed; (2) downslope from the occurrences of C. r. var. 
hartwegii to the point at which grassland habitat is replaced by forest 
habitats (oak forest, redwood forest, or mixed conifer-hardwood 
forest); and (3) to the boundary of existing development.

Unit Descriptions

    We are designating the following general areas as critical habitat 
(see legal descriptions for exact critical habitat boundaries).
Unit 1: Glenwood Site
    Unit 1 consists of approximately 87 ha (214 acres) to the west of 
Glenwood Drive and north and northwest of Casa Way, in the City of 
Scotts Valley, including land owned and managed by the Salvation Army, 
land owned and managed by the Scotts Valley High School District as a 
preserve, but excluding the rest of the High School, and to the east of 
Glenwood Drive, encompassing the parcel known as the Glenwood 
Development. Most of the land being designated within this unit is 
privately owned, with a small portion (4 ha (9 ac)) owned by a local 
agency. This unit is essential because it supports approximately 90 
percent of the known numbers of individuals of Chorizanthe robusta var. 
hartwegii, as well as other suitable patches of wildflower field 
habitat that could be colonized by the species; intervening habitat 
which supports the grassland community necessary for pollinators and 
seed dispersers; and a contiguous extent of the watershed that is 
necessary to maintain the hydrologic and soil conditions suitable for 
C. r. var. hartwegii.
Unit 2: Polo Ranch Site
    The Polo Ranch site consists of approximately 30 ha (73 ac) to the 
east of Carbonera Creek on the east side of Highway 17 and north and 
northeast of Navarra Drive, in the City of Scotts Valley, known as the 
Polo Ranch, in the County of Santa Cruz, California. All of the land 
being designated as critical habitat is privately owned. This unit is 
essential because it supports approximately 10 percent of the known 
numbers of individuals of Chorizanthe robusta var. hartwegii, as well 
as other suitable patches of wildflower field habitat that could be 
colonized by the species; intervening habitat which supports the 
grassland community necessary for pollinators and seed dispersers; and 
a contiguous extent of the watershed that is necessary to maintain the 
hydrologic and soil conditions suitable for C. r. var. hartwegii.

                   Table 1.--Approximate Critical Habitat Area (ha (ac)) by and Land Ownership
                   [Estimates reflect the total area within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
               Unit name                      Local agency               Private                   Total
----------------------------------------------------------------------------------------------------------------
1. Glenwood Unit......................  4ha                      83 ha                    87 ha
                                        (9 ac)                   (205 ac)                 (214 ac)
2. Polo Ranch Unit....................  0 ha                     30 ha                    30 ha
                                        (0 ac)                   (73 ac)                  (73 ac)
                                       --------------------------
    Total.............................  4 ha                     113 ha                   117 ha
                                        (9 ac)                   (278 ac)                 (287 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 its critical habitat to the extent that 
the action appreciably diminishes the value of the 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 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) requires Federal agencies to confer with us 
on any action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory. We may issue a formal conference report 
if requested by a Federal agency. Formal

[[Page 37346]]

conference reports include an opinion that is prepared according to 50 
CFR 402.14, as if the species was listed or critical habitat were 
designated. We may adopt the formal conference report as the biological 
opinion when the species is listed or critical habitat is designated, 
if no substantial new information or changes in the action alter the 
content of the opinion (see 50 CFR 402.10 (d)).
    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.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid destruction or adverse modification of critical 
habitat. Reasonable and prudent alternatives can vary from slight 
project modifications to extensive redesign or relocation of the 
project.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities on Federal lands that may affect Chorizanthe robusta 
var. hartwegii or its critical habitat will be subject to the section 7 
of the Act consultation process. Activities on private or State lands 
requiring a permit from a Federal agency, such as a permit from the 
U.S. Army Corps of Engineers (Corps) under section 404 of the Clean 
Water Act or any other activity requiring Federal action (i.e., 
funding, authorization) will also continue to be subject to the section 
7 of the Act consultation process. Federal actions not affecting 
critical habitat, as well as actions on non-Federal lands that are not 
federally funded or permitted, will not require section 7 of the Act 
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 
the 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. Because both of the units we are 
designating are occupied by either standing plants or a Chorizanthe 
robusta var. hartwegii 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, 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. Actions on which Federal 
agencies consult with us include, but are not limited to:
    (1) Development on private lands requiring permits from Federal 
agencies, such as section 404 of the Clean Water Act permits from the 
U.S. Army Corps of Engineers;
    (2) Restoration projects sponsored by the Natural Resources 
Conservation Service;
    (3) Pest control projects undertaken by the Animal and Plant Health 
Inspection Service, permits from Housing and Urban Development, or 
authorization of Federal grants or loans.
    Such activities would be subject to the section 7 of the Act 
consultation process. Where federally listed wildlife species occur on 
private lands proposed for development, any habitat conservation plans 
submitted by the applicant to secure an incidental take permit 
according to section 10(a)(1)(B) of the Act would be subject to the 
section 7 of the Act consultation process. The Ohlone tiger beetle 
(Cicindela ohlone), a federally endangered species, occurs in close 
proximity to Chorizanthe robusta var. hartwegii within grasslands on 
the east side of Carbonero Creek on land owned by American Dream/
Glenwood L.P.
    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. hartwegii is appreciably reduced. We note that such 
activities may also jeopardize the continued existence of the species. 
Activities that, when carried out, funded, or authorized by a Federal 
agency, may directly or indirectly destroy or adversely modify critical 
habitat include, but are not limited to:
    (1) Activities that alter watershed characteristics in ways that 
would appreciably alter or reduce the quality or quantity of surface 
and subsurface flow of water needed to maintain natural grassland 
communities and the wildflower field habitat. Such activities adverse 
to Chorizanthe robusta var. hartwegii could include, but are not 
limited to: vegetation manipulation such as chaining or harvesting 
timber in the watershed upslope from C. r. var. hartwegii; maintaining 
an unnatural fire regime either through fire suppression or prescribed 
fires that are too frequent or poorly-timed; residential and commercial 
development, including road building and golf course installations; 
agricultural activities, including orchards, viticulture (the 
cultivation of grapes), row crops, and livestock grazing; and

[[Page 37347]]

    (2) Activities that appreciably degrade or destroy native grassland 
communities, including but not limited to livestock grazing, clearing, 
discing, introducing or encouraging the spread of nonnative species, 
and heavy recreational use.
    If you have questions about whether specific activities may 
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, FAX 503/231-6243).

Relationship to Habitat Conservation Plans

    Currently, there are no HCPs that include Chorizanthe robusta var. 
hartwegii 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 Chorizanthe robusta var. 
hartwegii are developed within the boundaries of designated critical 
habitat, we will work with applicants to ensure that the HCPs provide 
for protection and management of habitat areas essential for the 
conservation of 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. hartwegii. The process would 
also enable us to conduct detailed evaluations of the importance of 
such lands to the long-term survival of the species in the context of 
constructing a biologically configured system of interlinked habitat 
blocks. We will also provide technical assistance and work closely with 
applicants throughout the development of any future HCPs to identify 
appropriate management for lands essential for the long-term 
conservation of C. r. var. hartwegii. 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.
    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. We accepted comments 
on the draft analysis until October 19, 2001.
    Our draft economic analysis evaluated the potential future effects 
associated with the listing of Chorizanthe robusta var. hartwegii as a 
threatened 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 private landowners carrying out development 
activities funded or authorized 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. hartwegii. Our economic analysis does take 
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. Our 
economic analysis also recognizes that there may be economic effects 
due to the reaction of the real estate market to critical habitat 
designation, as real estate values may be temporarily lowered due to 
perceived increase in the regulatory burden. However, we believe these 
impacts will be short-term or minimal in cost.
    The draft economic analysis concludes that, over the next 10 years 
the total costs to all landowners attributable to the designation are 
expected to be approximately $16,000 to $56,000 annually, however, we 
anticipate the costs will be even less because the costs of preparing 
Environmental Impact Reports for proposed developments, which were 
figured into the estimates, would have already been prepared to satisfy 
California Environmental Quality Act requirements for the lead State 
agency. Costs to Federal agencies are expected to total approximately 
$10,000 total over the next 10 years. Costs to local agencies are 
expected to total $5,000 to $8,000 total over the next 10 years. 
However, this does not include the potential cost of developing a 
multispecies HCP. Costs to private landowners are expected to range 
from $159,000 to $558,000 total over the next 10 years.
    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 potential economic effects of the designation 
because the final designation has been reduced to encompass 117 ha (287 
acres) versus the 125 ha (308 ac) proposed as critical

[[Page 37348]]

habitat, a difference of approximately 8 ha (21 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 (EO) 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. hartwegii was 
listed as endangered in February, 1994. Since that time we have not 
conducted any formal or informal section 7 consultations with other 
Federal agencies with respect to C. r. var. hartwegii. However, should 
any agencies be involved in any activities within the area being 
designated as critical habitat, we will consult with them to ensure 
that their actions will not jeopardize the continued existence of C. r. 
var. hartwegii or adversely modify its critical habitat.
    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 below). Based upon our knowledge of this 
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 currently 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).

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

    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions not jeopardize the continued existence of 
Chorizanthe robusta var. hartwegii since its listing in 1994. 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 prohibition, resulting from 
critical habitat designation will have any incremental effects.

[[Page 37349]]

    (d) OMB has determined that this rule may raise novel and legal or 
policy issues. Therefore, this rule is significant under E.O. 12866 
and, as a result, this rule 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 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. The SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to prepare a certification 
statement. In this rule, we are certifying that the critical habitat 
designation for the Chorizanthe robusta var. hartwegii 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.
    To determine if the rule would affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting, etc.). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. 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 consider 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. Residential development on 
private land constitutes the primary activity expected to be impacted 
by the designation of critical habitat for the Chorizanthe robusta var. 
hartwegii.
    To be conservative (i.e., more likely 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 EA 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 Scotts Valley spineflower in Santa Cruz County over a 
ten-year period. It's important to note that, to date, we have not 
conducted any formal consultations for Chorizanthe robusta var. 
harwegii.
    In each year over the ten-year period of analysis, on average, 
there would likely be less than a single consultation for real estate 
development projects. As a result, less than one percent of the total 
number of small residential development and construction companies 
could be affected annually by the designation of critical habitat for 
the Choriazanthe robust var. hartwegii. 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 Choriazanthe robust var. hartwegii.
    In general, two different mechanisms in section 7 of the Act 
consultations could lead to additional regulatory requirements for the 
one small business, on average, that may be required to consult with us 
each year regarding their project's impact on Chorizanthe robusta var. 
hartwegii 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

[[Page 37350]]

consultations--can be implemented successfully with, at most, the 
adoption of reasonable and prudent alternatives. These alternatives, by 
definition, must be economically feasible and within the scope of 
authority of the Federal agency involved in the consultation. As we 
have no consultation history for Chorizanthe robusta var. hartwegii, 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 project to avoid 
removing standing plants. Based on the types of modifications 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 modifications for one 
project is expected to be of the same order of magnitude as the total 
cost of the consultation process, i.e., approximately $16,000. It 
should be noted that developers likely would already be required to 
undertake such modifications due to regulations in California 
Environmental Quality Act. These modifications are not likely to result 
in a significant economic impact to project proponents. However, there 
does remain some concern about secondary impacts to the species. These 
will need to be addressed before projects are approved.
    In summary, we have considered whether this rule would result in a 
significant economic effect on a substantial number of small entities 
and 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. hartwegii will not have a significant economic impact on a 
substantial number of small entities and 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.

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 involving Federal funds, permits, or other authorized 
activities must ensure that their actions will not adversely affect the 
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.

Executive Order 13211

    On May 18, 2001, the President issued a Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. There are no energy-
related facilities located within designated critical habitat. Although 
this rule is a significant regulatory action under Executive Order 
12866, it is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action and no Statement of Energy Effects is required.

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. hartwegii 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. hartwegii would 
have little incremental impact on State and local governments and their 
activities. The designations may have some benefit to these governments 
in that the areas essential to the conservation of this species is 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. 
hartwegii.

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

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required. 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 as 
amended. A notice outlining our reason for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994,

[[Page 37351]]

``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. hartwegii does not contain any 
Tribal lands or lands that we have identified as impacting Tribal trust 
resources.

References Cited

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

Author

    The primary author of this 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, Transportation.

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


    2. In [sect] 17.12(h) revise the entry for Chorizanthe robusta var. 
hartwegii under ``FLOWERING PLANTS'' in the List of Endangered and 
Threatened Plants to read as follows:


[sect] 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

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


    3. Amend [sect] 17.96(a) by adding critical habitat for Scotts 
Valley spineflower (Chorizanthe robusta var. hartwegii) in alphabetical 
order under Family Polygonaceae to read as follows:


[sect] 17.96  Critical habitat--plants.

    (a) * * *
Family Polygonaceae: Chorizanthe robusta var. hartwegii (Scotts Valley 
spineflower)
    (1) Critical habitat units are depicted for Santa Cruz County, 
California, on the map below.
    (2) The primary constituent elements of critical habitat for 
Chorizanthe robusta var. hartwegii are the habitat components that 
provide:
    (i) Thin soils in the Bonnydoon series that have developed over 
outcrops of Santa Cruz mudstone and Purisima sandstone;
    (ii) ``Wildflower field'' habitat that has developed on these thin-
soiled sites;
    (iii) A grassland plant community that supports the ``wildflower 
field'' habitat, that is stable over time and in which nonnative 
species are absent or are at a density that has little or no adverse 
effect on resources available for growth and reproduction of 
Chorizanthe robusta var. hartwegii;
    (iv) Sufficient areas around each population to allow for 
recolonization to adjacent suitable microhabitat sites in the event of 
catastrophic events;
    (v) Pollinator activity between existing colonies of Chorizanthe 
robusta var. hartwegii;
    (vi) Seed dispersal mechanisms between existing colonies and other 
potentially suitable sites; and
    (vii) Sufficient integrity of the watershed above habitat for 
Chorizanthe robusta var. hartwegii to maintain soil and hydrologic 
conditions that provide the seasonally wet substrate for growth and 
reproduction.
    (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) Unit 1: Santa Cruz County, California.
    From USGS 7.5' quadrangle map Felton, California, Mount. Diablo 
Meridian, California.
    Lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 
587990, 4103190; 587999, 4103220; 588021, 4103230; 588025, 4103250; 
587997, 4103260; 588025, 4103280; 588035, 4103290; 588033, 4103310; 
588025, 4103320; 588012, 4103330; 588014, 4103340; 588005, 4103350; 
587984, 4103360; 587969, 4103370; 587962, 4103380; 587958, 4103390; 
587962, 4103400; 587975, 4103410; 587992, 4103410; 588012, 4103420; 
588029, 4103400; 588046, 4103410; 588058, 4103420; 588064, 4103430; 
588072, 4103450; 588082, 4103480; 588088, 4103500; 588091, 4103530; 
588091, 4103560; 588099, 4103570; 588115, 4103590; 588146, 4103580; 
588169, 4103610; 588201, 4103630; 588272, 4103700; 588411, 4104050; 
588571, 4103930; 588584, 4103940; 588589, 4103960; 588590, 4103980; 
588583, 4104010; 588574, 4104030; 588559, 4104050; 588549, 4104070; 
588568, 4104110; 588833, 4104150; 588827, 4104020; 588883, 4104030; 
588891, 4103950; 588906, 4103920; 588931, 4103890; 588979, 4103870; 
589049, 4103870; 589069, 4103680; 589061, 4103450; 589124, 4103440; 
589173, 4103400; 589117, 4103050; 589062, 4103060; 589019, 4102960; 
589099, 4102940; 589096, 4102920; 588612, 4103020; 588570, 4102880; 
588485, 4102900; 588474, 4102960; 588452, 4102960; 588452, 4103090; 
588473, 4103160; 588502, 4103270; 588504, 4103330; 588505, 4103420; 
588402, 4103470; 588360, 4103480; 588292, 4103480; 588267, 4103440; 
588121, 4103320; 588033, 4103080; 588352, 4103020; 588337, 4102930; 
588000, 4102990; 587981, 4102940; 587900, 4102940; 587900, 4102960; 
587905, 4102980; 587919, 4102970; 587931, 4102970; 587932, 4102990;

[[Page 37352]]

587924, 4103010; 587916, 4103040; 587915, 4103060; 587893, 4103070; 
587887, 4103090; 587883, 4103100; 587885, 4103100; 587891, 4103110; 
587911, 4103100; 587939, 4103130; 587942, 4103150; 587951, 4103160; 
587963, 4103150; 587977, 4103160; 587990, 4103190.
    (5) Unit 2: Santa Cruz County, California.
    From USGS 7.5' quadrangle map Laurel, California.
    Lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 
589297, 4102370; 589213, 4102420; 589164, 4102430; 589168, 4102460; 
589174, 4102500; 589181, 4102550; 589189, 4102570; 589210, 4102600; 
589243, 4102620; 589261, 4102630; 589274, 4102640; 589271, 4102660; 
589270, 4102680; 589270, 4102690; 589289, 4102710; 589327, 4102740; 
589361, 4102770; 589402, 4102790; 589435, 4102800; 589472, 4102800; 
589571, 4102790; 589657, 4102780; 589762, 4102770; 589845, 4102750; 
589889, 4102730; 589917, 4102690; 589932, 4102660; 589932, 4102620; 
589930, 4102530; 589865, 4102440; 589732, 4102250; 589681, 4102260; 
589669, 4102290; 589661, 4102300; 589642, 4102310; 589623, 4102310; 
589590, 4102310; 589531, 4102320; 589297, 4102370.
    (6) Critical Habitat Map for Units 1 and 2 follows:
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[[Page 37353]]

[GRAPHIC] [TIFF OMITTED] TR29MY02.011

* * * * *

    Dated: May 16, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-13063 Filed 5-28-02; 8:45 am]
BILLING CODE 4310-55-C