[Federal Register Volume 67, Number 117 (Tuesday, June 18, 2002)]
[Proposed Rules]
[Pages 41367-41392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15340]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG96


Endangered and Threatened Wildlife and Plants; Critical Habitat 
Designation for Two Larkspurs From Coastal Northern California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat pursuant to the Endangered Species Act of 
1973, as amended (Act), for Delphinium bakeri (Baker's larkspur) and 
Delphinium luteum (yellow larkspur). Approximately 1,786 hectares (ha) 
(4,412 acres (ac)) are proposed for designation of critical habitat. We 
are proposing to include approximately 740 ha (1,828 ac) within two 
units located in Marin and Sonoma counties, California, as critical 
habitat for Delphinium bakeri, and 1,046 ha (2,584 ac) within four 
units also located in Marin and Sonoma counties, California, as 
critical habitat for Delphinium luteum. Critical habitat receives 
protection from destruction or adverse modification through required 
consultation under section 7 of the Act with regard to actions carried 
out, funded, or authorized by a Federal agency. Section 4 of the Act 
requires us to consider economic and other relevant impacts when 
specifying any particular area as critical habitat.
    We solicit data and comments from the public on all aspects of this 
proposal, including data on the economic and other impacts of the 
designation and our approaches to handling any future habitat 
conservation plans. We may revise this proposal prior to final 
designation to incorporate or address new information received during 
the comment period.

DATES: We will accept comments until August 19, 2002. Public hearing 
requests must be received by August 2, 2002.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    You may submit written comments and information or hand-deliver 
comments to the Field Supervisor, Sacramento Fish and Wildlife Office, 
U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W--2605, 
Sacramento, CA 95825.
    You may also send comments by electronic mail (e-mail) to 
fw1[email protected]. See the Public Comments Solicited 
section below for file format and other information about electronic 
filing.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Wayne White, Field Supervisor, 
Sacramento Fish and Wildlife Office, at the above address: telephone 
916/414-6600; facsimile 916/414-6710.

SUPPLEMENTARY INFORMATION:

Background

    Delphinium bakeri is a perennial herb in the buttercup family 
(Ranunculaceae) that grows from a thickened, tuber-like, fleshy cluster 
of roots. The stems are

[[Page 41368]]

hollow, erect, and grow to 65 centimeters (cm) (26 inches ( in)) tall. 
Shallowly five-parted leaves occur primarily along the upper third of 
the stem and are green (as opposed to withering) at the time the plant 
flowers. The flowers are irregularly shaped. The five sepals (members 
of the outermost set of flower parts) are conspicuous, bright dark blue 
or purplish, with the rear sepal elongated into a spur (hollow, often 
cone-shaped, projection). The inconspicuous petals occur in two pairs. 
The lower pair is oblong and blue-purple; the upper pair is oblique 
(having unequal sides or an asymmetric base) and white. Seeds are 
produced in several dry, many-seeded fruits which split open at 
maturity on only one side (i.e., follicles). Delphinium bakeri flowers 
from April through May (Warnock 1993). Delphinium bakeri can be 
differentiated from other members of the genus by its crenate leaf 
margins (margins notched or scalloped so as to form rounded teeth), 
leaves that are not withering at time of flowering, and flowers that 
are loosely arranged (California Native Plant Society (CNPS) 1977).
    Ewan (1942) described Delphinium bakeri based on type material 
collected by Milo Baker in 1939 from ``Coleman Valley, Sonoma Co., 
California.'' In the most recent treatment, Warnock (1993) retained the 
taxon as a full species. Delphinium bakeri has only been known from 
three locations--Coleman Valley in southern Sonoma County; near the 
town of Tomales in northern Marin County, and approximately 10 
kilometers (km) (6 miles (mi)) east of Tomales Bay in northern Marin 
County. Delphinium bakeri is thought to have been extirpated from 
Coleman Valley and from near Tomales. At the only known extant 
population, approximately 10 km (6 mi) east of Tomales Bay, the number 
of individuals has varied from 0 to 64 individuals over the last 20 
years (CNDDB 2001).
    Delphinium bakeri occurs on decomposed shale from 90 to 205 meters 
(m) (295 to 672 feet (ft)) in elevation (California Natural Diversity 
Database (CNDDB) 2001). The collection from the type locality in 
Coleman Valley was described by Joseph Ewan as growing ``along fence 
rows and in heavy low brush'' (Ewan 1942). Two species listed as 
growing with D. bakeri at the type locality were Potentilla elata [now 
known as Horkelia californica ssp. dissita (California honeydew)] and 
Ranunculus orthorynchus (straightbeak buttercup) (Ewan 1942). No 
information is reported for the associated species or habitat for the 
other occurrence from near Tomales that is thought to be extirpated 
(CNDDB 2001).
    The single extant (currently existing, not extirpated or destroyed) 
occurrence of Delphinium bakeri grows in mesic (moderate moisture) 
conditions along an extensive north-facing slope under an overstory 
that includes Umbellularia californica (California bay), Aesculus 
californica (California buckeye), and Quercus agrifolia (coastal live 
oak). Other native plants associated with D. bakeri at this site 
include--Baccharis pilularis ssp. consanguinea (coyotebrush), 
Symphorcarpos cf. rivularis (snowberry), Rubus ursinus (California 
blackberry), Pteridium aquilinum (braken fern), Polystichum munitum 
(Sword fern), Pityrogramma triangularis (goldback fern), Dryopteris 
arguta (coastal woodfern), Adiantum jordanii (maidenhair fern), and 
Polypodium glycyrrhiza (licorice fern) (CNDDB 2001). The property is 
privately owned but Sonoma County has a right-of-way along the road. 
Pollinators have not specifically been identified for D. bakeri, but 
pollinators for species in the genus Delphinium typically are large 
hymenoptera, especially Bombus ssp. (bumblebees) (Guerrant 1976).
    Even in 1942, Ewan noted that the habitat of Delphinium bakeri was 
formerly more abundant, but had been reduced by cultivation (Ewan 
1942). Habitat conversion, grazing, and roadside maintenance activities 
have extirpated two of the three known occurrences of D. bakeri in 
Marin and Sonoma counties (CDFG 1994). The type locality is thought to 
have been extirpated by a dairy ranch. The single extant population is 
threatened by road work such as right-of-way maintenance (including use 
of herbicides), overcollection, and sheep grazing (CNDDB 2001). Because 
of its extreme range restriction to a single population and small 
population size of the one remaining occurrence, D. bakeri is extremely 
vulnerable to extinction from random natural events, such as unseasonal 
fire or insect outbreaks (Shaffer 1981; Primack 1993).
    Delphinium luteum is a perennial herb in the buttercup family 
(Ranunculaceae) that grows from thin tuberous roots up to 30 cm (12 in) 
long to a height of 55 cm (22 in) tall. The leaves are mostly basal, 
fleshy, and green at the time of flowering. The flowers are cornucopia-
shaped. The five conspicuous sepals are bright yellow, with the 
posterior sepal elongated into a spur. The inconspicuous petals occur 
in two pairs. The upper petals are narrow and unlobed; the lower petals 
are oblong to ovate (egg-shaped). The fruit is a follicle. D. luteum 
flowers from March to May. Delphinium luteum is distinguished from 
other Delphinium by its yellow flowers and its erect seed follicles 
(CNPS 1977). In contrast to typical pollinators for the genus 
Delphinium, potential pollinators for D. luteum are Allen's 
hummingbirds, which have been observed visiting D. luteum flowers. In 
addition, the flower shape and sucrose-dominated nectar are consistent 
with characteristics of species that are typically pollinated by 
hummingbirds (Guerrant 1976).
    Heller (1903) described Delphinium luteum based on type material 
collected from ``grassy slopes about rocks, near Bodega Bay, along the 
road leading to the village of Bodega'' in Sonoma County. Although 
Jepson (1975) reduced D. luteum to a variety of D. nudicaule (red 
larkspur), it is currently recognized as a full species (Warnock 1993).
    Delphinium luteum inhabits coastal prairie and coastal scrub, which 
typically have no overstory, at elevations ranging from sea level to 
about 100 m (300 ft) within northwestern Marin and southwestern Sonoma 
counties, California (CNDDB 2001). The species occurs on moderate to 
steep slopes with evidence of some level of disturbance, including 
landslides of various ages, in close proximity (Guerrant 1976, CNDDB 
2001). Roots of D. luteum are both tuberous, long and thin, an unusual 
combination in this genus which may provide an advantage in thin, 
unstable soils (Weaver 1919 as cited in Guerrant 1976). Typical soil 
types supporting D. luteum include the Kneeland series in Sonoma County 
and the Yorkville series in Marin County. These soils derive from 
sandstone or shale, and share qualities of rapid runoff and high 
erosion potential (U.S. Department of Agriculture (USDA) 1972, Soil 
Conservation Service (SCS) 1985). The most recently documented 
populations of D. luteum (those seen in the 1980's or later) tend to 
grow on north-facing slopes in canyon complexes with steep sides (LSA 
Associates (LSA) 1997, CNDDB 2001). Presumably the more shaded north-
facing slopes provide a moister microclimate, while the steep-sloped 
canyon walls increase the likelihood of erosion and landslides in the 
vicinity. Only two potential exceptions to this trend are evident in 
the CNDDB: one population near Tomales, California, is mapped on a 
south-facing slope, while a relatively nearby population does not 
appear to grow near any steep-sloped canyon walls. Both these 
populations are in proposed critical habitat Unit L4,

[[Page 41369]]

described below. The first population has not been documented since 
1983, and its mapped location is precise to a one-fifth mile (0.32 km) 
radius. This could put its actual location across the canyon on a 
north-facing slope. The other population is growing in a road cut, 
which might provide erosional and soil disturbance characteristics 
similar to those near canyon walls (CNDDB 2001).
    Temperatures in the region inhabited by Delphinium luteum are 
moderated by fog, which keeps summers relatively cool and winters 
relatively warm compared to inland habitats. Much of the coastal 
prairie in this species' range has been grazed for over a century, and 
is now characterized by a mixture of non-native annuals and forbs and 
native prairie plants. Native plants listed as occurring with D. luteum 
include Arabis blepharophylla (rose rockcress), Calochortus tolmei 
(Tolmei startulip), Mimulus aurantiacus (orange bush monkeyflower), 
Dudleya caespitosa (sea lettuce), Polypodium californicum (California 
polyploidy), and Eriogonum parviflorum (sea cliff buckwheat) (CNDDB 
2001).
    Eleven occurrences of Delphinium luteum have been reported in the 
CNDDB (2001). Only six of these have been documented since the early 
1980's, however. Of the remaining five occurrences, three have not been 
documented since 1935 or earlier, another is based entirely on 
unsupported and undated information found on a 1979 map, and the fifth 
was a questionable identification never confirmed by a second siting 
(CNDDB 2001). The six more recently documented occurrences grow in 
three separate drainages; one in Sonoma County and two in Marin County. 
These groupings form the basis of three of the four critical habitat 
units we are proposing. (See Units L1, L2 and L4, below). A final 
population, not yet documented in CNDDB, occurs in a third Marin County 
drainage (David Amme, California Department of Transportation, in litt. 
2002; D. Amme, pers. comm. 2002), and forms the basis of critical 
habitat Unit L3, as described below.
    Recent surveys have not found many plants in any of these 
populations. The largest number recorded by CNDDB is 134 plants for one 
of the Marin County populations in 1993. The total number of Delphinium 
luteum individuals may be less than 300 (CNDDB 2001, David Amme, pers. 
comm. 2002). Each recently documented population faces one or more 
potential threats to its existence, including overcollection, road 
widening, unmanaged sheep grazing, fire suppression, and hybridization 
with another Delphinium species (B. Guggolz, pers. comm. 1995; CNDDB 
2001). Additionally, the combination of few populations, small numbers 
of individuals within each population, narrow range, and restricted 
habitat makes D. luteum susceptible to extirpation in significant 
portions of its range from random natural events such as unseasonal 
fire, drought, disease, or other natural occurrences (Shaffer 1981; 
Primack 1993).

Previous Federal Action

    Federal actions on the two plant species began when the Secretary 
of the Smithsonian Institution, as directed by section 12 of the Act, 
prepared a report on those native U.S. plants considered to be 
endangered, threatened, or extinct in the United States. This report 
(House Document No. 94-51), was presented to Congress on January 9, 
1975, and included Delphinium bakeri and D. luteum as endangered. On 
July 1, 1975, we published a notice in the Federal Register (40 FR 
27823) accepting the report as a petition within the context of section 
4(c)(2) (now section 4(b)(3)) of the Act and of our intention to review 
the status of the plant taxa named in the report. On June 16, 1976, we 
published a proposed rule in the Federal Register (41 FR 24523) 
determining approximately 1,700 vascular plant species to be endangered 
species pursuant to section 4 of the Act. Delphinium bakeri and D. 
luteum were included in this June 16, 1976, Federal Register document.
    In 1978, amendments to the Act required that all proposals over 2 
years old be withdrawn. A 1-year grace period was given to those 
proposed rules already more than 2 years old. On December 10, 1979, we 
published a notice (44 FR 70796) of the withdrawal of the portion of 
the June 16, 1976, proposed rule that had not been made final, along 
with four other proposals that had expired. We published an updated 
Notice of Review (NOR) for plants on December 15, 1980 (45 FR 82480). 
This NOR included Delphinium bakeri and D. luteum as category 1 
candidates (species for which data in our possession was sufficient to 
support proposals for listing).
    On February 15, 1983, we published a notice (48 FR 6752) of our 
prior finding that the listing of Delphinium bakeri and D. luteum was 
warranted but precluded in accordance with section 4(b)(3)(B)(iii) of 
the Act as amended in 1982. Pursuant to section 4(b)(3)(C)(i) of the 
Act, this finding must be recycled annually, until the species is 
either proposed for listing or the petitioned action is found to be not 
warranted. Each October from 1983 through 1994, further findings were 
made that the listing of D. bakeri and D. luteum were warranted, but 
that the listing of these species was precluded by other pending 
proposals of higher priority.
    On November 28, 1983, we published a supplement to the plant NOR 
(48 FR 53640). This supplement changed Delphinium bakeri and D. luteum 
from category 1 to category 2 candidates (species for which data in our 
possession indicate listing was possibly appropriate, but for which 
substantial data on biological vulnerability and threats were not 
currently known or on file to support proposed rules).
    The plant NOR was revised again on September 27, 1985 (50 FR 
39526). Delphinium bakeri and D. luteum were again included as category 
2 candidates. Another revision of the plant NOR was published on 
February 21, 1990 (55 FR 6184). In this revision D. bakeri and D. 
luteum were included as category 1 candidates and remained as category 
1 candidates in the plant NOR published on September 30, 1993 (58 FR 
51144). Upon publication of the February 28, 1996, NOR (61 FR 7596), we 
ceased using category designations and included D. bakeri and D. luteum 
as candidate species. Candidate species are those for which we have on 
file sufficient information on the biological vulnerability and threats 
to support proposals to list them as threatened or endangered. On June 
19, 1997, we published a proposed rule in the Federal Register (62 FR 
33383) to list D. bakeri and D. luteum as endangered.
    On June 17, 1999, our failure to issue final rules for listing 
Delphinium bakeri and D. luteum and seven other plant species as 
endangered or threatened, and our failure to make a final critical 
habitat determination for the nine species was challenged in Southwest 
Center for Biological Diversity and California Native Plant Society v. 
U.S. Fish and Wildlife Service and Bruce Babbitt (Case No. C99-2992 
(N.D.Cal.). The final rule listing D. bakeri and D. luteum as 
endangered species was published in the Federal Register on January 26, 
2000 (65 FR 4156). On May 22, 2000, the judge signed an order for the 
Service to propose critical habitat for the species by September 30, 
2001. In mid-September 2001, plaintiffs agreed to an extension of this 
due date for D. bakeri and D. luteum until June 10, 2002, for the 
proposed critical habitat designation and March 10, 2003, for the final 
critical habitat designation.

[[Page 41370]]

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the provisions of section 4 of 
the Act, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by a species at the time 
it is listed in accordance with section 4 of this Act, 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 insure that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of habitat determined to be critical to a species. Section 
7 of the Act also requires conferences on Federal actions that are 
likely to result in the destruction or adverse modification of critical 
habitat. In our regulations at 50 CFR 402.02, we define destruction or 
adverse modification as ``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 at 
the time of listing, 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 often may not have 
sufficient information to identify all areas which are 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 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 or other unpublished materials, and discussions with 
experts.
    Section 4 of the Act requires that we designate critical habitat 
based on what we know at the time of designation. Habitat is often 
dynamic, and species 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, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery. Areas 
that support newly discovered populations in the future, but are 
outside the critical habitat designation will continue to be subject to 
conservation actions implemented under section 7(a)(1) of the Act and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 prohibitions, as determined on the basis of 
the best available information at the time of the action. 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 Delphinium bakeri and D. luteum. We 
reviewed available information that pertains to the habitat 
requirements of these species including data from research and survey 
observations; regional Geographic Information System (GIS) coverages 
(e.g., soils, known locations, vegetation, land ownership); information 
from herbarium collections such as CalFlora ((http://www.calflora.org); 
data from CNDDB

[[Page 41371]]

(2001); and data collected from project-specific and other 
miscellaneous reports submitted to us. This included information from 
our final rule listing D. bakeri and D. luteum as endangered (65 FR 
4156), the CNDDB (2001), soil survey maps (Soil Conservation Service 
1972, 1985), certified soil GIS layers for Marin County, geologic 
formation maps, 1993 digital orthophotoquarterquads, and discussions 
with botanical experts who have worked closely with these plant 
species. We also conducted site visits at one historical occurrence of 
D. bakeri and five historical occurrences of D. luteum; and one extant 
occurrence of D. bakeri and three extant occurrences of D. luteum (to 
the extent we could visit the habitat without going onto private land).

Mapping

    We delineated the proposed critical habitat units by using data 
layers in a GIS format with all the known Delphinium bakeri and D. 
luteum occurrences from the CNDDB (2001) and other sources (D. Amme, in 
litt. 2002; D. Amme, pers. comm. 2002). We created additional data 
layers to reflect vegetation types using aerial photographs, GIS data 
for Marin soils (Natural Resource Conservation Service (NRCS) 2001), 
and recent development using satellite imagery (CNES/SPOT Image 
Corporation (SPOT) 2001). We created an additional data layer by 
digitizing Kneeland soils data for Sonoma County from USGS 1972. These 
data layers were laid over a base of USGS 3.75' digital 
orthophotographic quarter quadrangle images.
    In selecting areas of proposed critical habitat, we made an effort 
to avoid developed areas such as houses, intensive agricultural areas 
such as row crops, vineyards and orchards, and lands unlikely to 
contain the primary constituent elements for Delphinium bakeri or D. 
luteum. However, we did not map critical habitat in sufficient detail 
to exclude all developed areas. Developed areas within the boundaries 
of the mapped units, such as buildings, roads, parking lots, railroads, 
airport runways and other paved areas, lawns, and other urban 
landscaped areas will not contain one or more of the primary 
constituent elements. Federal actions limited to these areas, 
therefore, would not trigger a section 7 of the Act consultation, 
unless they affect the species or primary constituent elements in 
adjacent critical habitat.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas to 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, germination, or seed dispersal; and habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distributions of a species. All areas 
proposed as critical habitat for Delphinium bakeri and D. luteum are 
within the historical range and contain one or more of these physical 
or biological features (primary constituent elements) essential for the 
conservation of the species.
    Much of what is known about the specific physical and biological 
requirements of Delphinium bakeri and D. luteum is described in the 
Background section of this proposed rule. The proposed critical habitat 
is designed to provide sufficient habitat to maintain self-sustaining 
populations of D. bakeri and D. luteum throughout their ranges and to 
provide those habitat components essential for the conservation of 
these species. These habitat components provide for--(1) Individual and 
population growth, including sites for germination, pollination, 
reproduction, and seed dispersal; (2) areas that allow gene flow and 
provide connectivity or linkage between populations including open 
spaces and disturbed areas that in some instances may also contain non-
native plant species; (3) areas that provide basic requirements for 
growth such as water, light, minerals; and (4) areas that support 
populations of pollinators and seed dispersal organisms.
    The conservation of Delphinium bakeri and D. luteum is dependent 
upon a number of factors, including the conservation and management of 
sites where existing populations grow, the establishment of D. bakeri 
at a new location to provide insurance against stochastic (randomly 
occurring) events, the maintenance of normal ecological functions 
within these sites, and the preservation of the connectivity between 
sites to maintain recent levels of gene flow between sites through 
pollinator activity and seed dispersal agents.
    Based on our knowledge to date, the primary constituent elements of 
critical habitat for Delphinium bakeri consist of:
    (1) Soils that are derived from decomposed shale;
    (2) Plant communities that support associated species, including, 
but not limited to: Umbellularia californica (California bay), Aesculus 
californica (California buckeye), and Quercus agrifolia (coastal live 
oak). Other native plants associated with D. bakeri include--Baccharis 
pulularis ssp. consanguinea (coyotebrush), Symphorcarpos cf. rivularis 
(snowberry), Rubus ursinus (California blackberry), Pteridium aqulinum 
(braken fern), Polystichum munitum (Sword fern), Pityrogramma 
triangularis (goldback fern), Dryopteris arguta (coastal woodfern), 
Adiantum jordanii (maidenhair fern), and Polypodium glycyrrhiza 
(licorice fern); and
    (3) Mesic (moderate moisture) conditions on extensive north-facing 
slopes.
    Based on our knowledge to date, the primary constituent elements of 
critical habitat for Delphinium luteum consist of:
    (1) Plant communities that support the appropriate associated 
species, including north coastal scrub or coastal prairie communities;
    (2) Soils derived from sandstone or shale, with rapid runoff and 
high erosion potential, such as Kneeland or Yorkville series soils;
    (3) Generally north aspected areas near steep-sloped canyon walls; 
and
    (4) Habitat upslope and downslope from known populations to 
maintain disturbance such as occasional rock slides or soil slumping 
that the species appears to require.

Criteria Used to Identify Critical Habitat

    We identified critical habitat areas essential for the conservation 
of Delphinium bakeri in the one location it currently is known to occur 
in Marin County, as well as in the Coleman Valley area in Sonoma 
County, where the species was historically found. We are including the 
Coleman Valley site in our proposal, despite the fact that D. bakeri is 
thought to be extirpated from this location because it is one of very 
few locations where D. bakeri has ever been observed. We did not 
include the third such location near Tomales, California, however, 
because our information is too vague to accurately identify the site. 
We believe that reintroduction of D. bakeri at the Coleman Valley site 
(Unit B1) is essential for the species' survival due to the extremely 
limited range of D. bakeri, its small population size (0 to 64 
individuals over the last 20 years), and the high degree of threat from 
chance

[[Page 41372]]

catastrophic events (Shaffer 1981, 1987; Primack 1993, Meffe and 
Carroll 1994). Such events are a concern when the number of populations 
or geographic distribution of a species is severely limited, as is the 
case with D. bakeri. Establishment of a second location for D. bakeri 
is important in reducing the risk of extinction due to such 
catastrophic events.
    We identified critical habitat for Delphinium bakeri by mapping the 
distribution of the known occurrences of the species with respect to 
distance from the coast, location within watersheds, soil series 
associations, aspect of the slopes and watersheds, position on slopes, 
our field observations of the soil conditions at each location, and our 
field observations of the plant associations found in the area of each 
location. We then drew an initial critical habitat demarcation that 
included the appropriate soils, vegetation, and watershed. We mapped 
the proposed units to include the upslope and downslope areas that 
would be important to the maintenance of the primary constituent 
elements essential for the conservation of the species.
    We identified critical habitat areas essential to the conservation 
of Delphinium luteum in the areas where it is known to occur in Marin 
and Sonoma counties. Due to the limited number of populations of D. 
luteum and the high degree of threat from catastrophic events, we 
believe that all areas with recently documented occurrences are 
essential for the conservation of this species. In addition, the Center 
for Plant Conservation (2002) recommends that additional populations be 
established and managed for this species. Some areas within the 
proposed critical habitat units may be suitable sites for such 
introductions. All four D. luteum units (L1, L2, L3 and L4) are 
occupied by the species.
    Five of the six proposed critical habitat units for Delphinium 
bakeri and D. luteum contain at least one extant occurrence of the 
species for which the unit was drawn. All of the units also contain 
areas that are currently considered unoccupied or that are of uncertain 
occupancy. These unoccupied areas are included within the units because 
they provide areas into which populations might expand, provide 
connectivity or linkage between populations within a unit, maintain 
ecological and landscape processes upon which the species depend, and 
support populations of pollinators and seed dispersal organisms. They 
also provide areas into which the species may be introduced. As 
discussed above, we believe that establishing a second location for D. 
bakeri is essential for the conservation of the species because it will 
reduce the probability that the plant may be extirpated by catastrophic 
events. The one unoccupied unit proposed encompasses the type location 
(Colman Valley location) for D. bakeri. We believe that this is 
appropriate, when considering establishment of new locations, to look 
first to areas where the species was once known to occur, rather than 
to completely new areas. Establishment of additional D. luteum 
locations has been recommended by the Center for Plant Conservation 
(2002).
    As a rule, we drew boundary lines for Delphinium luteum critical 
habitat units to include all areas of the same soil type and in the 
same canyon system as the enclosed population(s). Although all but one 
recently documented population of D. luteum occurs on basically north-
facing slopes, we consistently included as critical habitat both sides 
of the canyons which contain D. luteum. This was because the folds and 
side canyons common to these sites can produce localized north aspected 
areas even on generally south aspected canyon walls. Including both 
sides of the canyons where the plant occurs can also make management of 
the units easier, and provide a wider range of microhabitats for 
potential population expansion.
    Some units contained features which caused us to modify our general 
rule of drawing boundaries based on the same soil type and canyon 
system as the known population. In Unit L3, the soil boundaries 
conformed well to the canyon boundaries, and also included areas of 
steep-sloped canyon walls, so no further manipulation was necessary. 
Unit L1 soil boundaries included several branching canyons with 
numerous coastal drainage outlets, so we included those canyons which 
drained to roughly the same location and excluded the others. In Unit 
L2, the soil boundaries conformed well to the drainage, but because the 
area thus enclosed was very small and unbranched, and because the same 
soil type also occurred with suitable habitat in a separate drainage 
less than half a mile away, we extended the boundaries of the unit to 
include the north-facing slopes of the second drainage as bounded by 
the suitable soil type. The resulting unit is still the smallest of the 
four, and by including this small area of nearby habitat we can provide 
the resident D. luteum population an opportunity to colonize a new 
area. Given the susceptibility of D. luteum populations to extirpation 
by random, uncontrollable events, the establishment of new populations 
is essential to the continuing survival of the species.
    Unit L4 contains the population growing in a road-cut away from 
steep-sloped canyon walls, as well as the population mapped on a south-
facing slope. It also includes a third population which is located in 
typical habitat but which the CNDDB lists as ``possibly extirpated'' 
due to the inability of several surveys to relocate it since 1982. All 
three populations are mapped as growing on different soil types (CNDDB 
2001). However, with two exceptions, all soil types in the area share 
the rapid run-off and high erosion potential with which D. luteum is 
associated. The two exceptions are the canyon floor and a small area at 
the head of the canyon where the walls are not steeply sloped. We are 
including these areas for contiguity of the unit and because both of 
them abut the location of the population located in the road cut. Taken 
together, the various soil types conform well to the main canyon 
boundaries (SCS 1985) and include all the habitat requirements of the 
species, so we have drawn Unit L4 largely according to the soil 
boundaries as they extend down the main canyon. We did not extend the 
unit up either of two large side canyons because those areas neither 
contain D. luteum populations nor a soil type common to all the 
populations in the unit.

Special Management Considerations

    As noted in the Critical Habitat section, ``special management 
considerations or protection'' is a term that originates in the 
definition of critical habitat. We believe the proposed areas may 
require special management considerations or protection because 
Delphinium bakeri and D. luteum occupy an extremely localized range. 
Potential threats to the habitat of D. bakeri include overcollection, 
application of herbicides, and sheep grazing. Potential threats to the 
habitat of D. luteum include overcollection, road widening, sheep 
grazing, fire suppression and hybridization.
    Additional special management is not required if adequate 
management or protection is already in place. Adequate special 
management considerations or protection is provided by a legally 
operative plan or agreement that addresses the maintenance and 
improvement of the primary constituent elements important to the 
species and manages for the long-term conservation of the species. 
Currently, no plans meeting these criteria have been developed for 
Delphinium bakeri or D. luteum.

[[Page 41373]]

    Special management considerations or protections may be needed to 
maintain the primary constituent elements for Delphinium bakeri or D. 
luteum within the units being proposed as critical habitat. In some 
cases, protection of the existing habitat and current ecological 
processes may be sufficient to ensure that populations of the plants 
are maintained at those sites, and that they 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 the two Delphinium species. We have outlined below the 
most likely kinds of special management and protection that these taxa 
may require. The following actions apply to both Delphinium species, 
unless otherwise noted.
    (1) In all plant communities where these taxa occur, invasive, 
nonnative species need to be actively controlled.
    (2) The quality of water must be maintained to keep it free from 
deleterious levels of herbicides or other chemical or organic 
contaminants.
    (3) Certain areas where these species occur may need to be fenced 
to protect them from accidental or intentional trampling by humans and 
livestock.
    (4) Aerial application of herbicides and insecticides need to be 
curtailed in the critical habitat. Exposure from drift needs to be 
avoided.
    (5) The appropriate level of soil disturbance needs to be 
maintained (this applies only to Delphinium luteum).
    (6) Existing hydrologic conditions may need to be protected by 
avoiding activities that cause a change in surface or subsurface water 
flows.

Proposed Critical Habitat Designation

    The proposed critical habitat areas described below constitute our 
best assessment at this time of the areas needed for the conservation 
of Delphinium bakeri and D. luteum. Critical habitat being proposed for 
D. bakeri includes one occupied unit in Marin County, which contains 
the only currently known location of D. bakeri and a second unit in 
Sonoma County we believe includes the type locality for D. bakeri. The 
second unit is essential because establishment of a second location for 
D. bakeri is important in reducing the risk of extinction due to 
catastrophic events. Critical habitat being proposed for D. luteum 
includes four units that currently are occupied. These units together 
contain all the D. luteum populations documented since the 1980's. 
Critical habitat proposed for D. bakeri includes 740 ha (1,828 ac), 
with 418 ha (1,032 ac) in Marin County and 322 ha (796 ac) in Sonoma 
County. Critical habitat proposed for D. luteum includes 1,046 ha 
(2,584 ac), with 554 ha (1,369 ac) in Sonoma County and 492 ha (1,215 
ac) in Marin County.
    Delphinium bakeri and D. luteum are known only to occur on private 
lands. We are not aware of any Tribal lands in or near our proposed 
critical habitat units for D. bakeri and D. luteum. However, should we 
learn of any Tribal lands in the vicinity of the critical habitat 
designation subsequent to this proposal, we will coordinate with the 
Tribes before making a final determination as to whether any Tribal 
lands should be included as critical habitat for D. bakeri or D. 
luteum.
    A brief description of each unit and our reasons for proposing 
those areas as critical habitat are presented below.

Unit B1: Coleman Valley, Sonoma County, California

    This unit is located near Coleman Valley Road west of the town of 
Occidental, approximately 8.3 km (5 mi) from the coast. The 322 ha (796 
ac) unit is bounded on the north side by Coleman Valley Road and 
represents an area either near or at the original type locality for 
Delphinium bakeri. The location of the type locality for D. bakeri was 
somewhat vague, and only identified the location as Coleman Valley. 
However, this unit contains an extensive north-facing slope with mesic 
vegetation similar to the extant location of D. bakeri, with the 
addition of coastal redwood. The Coleman Valley location of D. bakeri 
represented the northern most extent of the range of this species. As 
discussed above, this unit is essential for the conservation of D. 
bakeri because it provides a second area separate from the existing 
population for D. bakeri into which it can be reintroduced. We believe 
it is important to have a second unit to reduce the likelihood that the 
species may become extinct as the result of a catastrophic event. A 
second geographically separate unit can provide protection from chance 
events such as disease that can destroy the only remaining population.

Unit B2: Salmon Creek, Marin County, California

    This unit is near the Marshall-Petaluma Road in Marin County 
approximately 10 km (6 mi) from the coast. This 418 ha (1,032 acre) 
unit is bounded on the north side by Salmon Creek and contains an 
extensive north-facing slope that is essential to maintaining the mesic 
conditions needed for Delphinium bakeri. Land in this unit is privately 
owned with a County right-of-way along the road. This unit is essential 
for the survival of D. bakeri because it contains the only known extant 
occurrence of D. bakeri and represents the southernmost extent of the 
range of this species.

Unit L1: Bodega Bay, Sonoma County, California

    Unit L1 consists of 554 ha (1,369 ac) south of Bay Hill Road, near 
the town of Bodega in Sonoma County, California. This unit is comprised 
of Kneeland series soils, coastal prairie and scrub habitat, and is 
within the fog belt that moderates the climate. This unit is essential 
to the conservation of D. luteum because it contains about thirty 
percent of the roughly 220 total remaining individual plants (based on 
the most recent population totals provided by CNDDB and by the 
discoverer of the Unit L3 population (CNDDB 2001; D. Amme, pers. comm. 
2002)). Because so few D. luteum plants remain, all are essential to 
the continued survival and recovery of the species. In addition, this 
unit is important to the conservation of the species because it 
contains two of very few remaining sites at which the species has been 
recently observed. Due to the limited number of populations of D. 
luteum and the high degree of threat from catastrophic events, we 
believe that all recently documented occurrences are essential for the 
conservation of this species.

Unit L2: Estero Americano, Marin County, California

    Unit L2 is located just south of Estero Americano on the Marin 
County coast. This 133 ha (328 ac) unit contains one occurrence of 
Delphinium luteum, with about 134 individual plants at last count 
(CNDDB 2001). It is located on Yorkville series soils that support 
coastal prairie and coastal scrub habitat, and is within the fog belt 
that moderates the climate. This unit is essential for the survival of 
D. luteum because it contains the single largest population of the 
plant, with more than half of all the individuals in the entire 
species. Because so few D. luteum plants remain, all are essential to 
the continued survival and recovery of the species. In addition, this 
unit is important to the conservation of the species because it 
contains one of very few remaining sites at which the species has been 
recently observed. Due to the limited number of populations of D. 
luteum and the high degree of threat from catastrophic events, we 
believe that all recently documented occurrences are essential for the 
conservation of this species.

[[Page 41374]]

Unit L3: Estero de San Antonio, Marin County, California

    Unit L3 is located near the mouth of the Estero de San Antonio in 
Marin County, and includes steep sloped canyon walls composed of 
Yorkville series soils on both sides of the water channel, with coastal 
prairie and coastal scrub habitat and temperatures moderated by fog. 
This 166 ha (411 ac) unit contains one population of Delphinium luteum 
discovered in 1993 and not yet recorded in the CNDDB. This unit is 
important because it contains a recently documented but little known 
population, and its position roughly halfway between Unit L4 to the 
south and Units L1 and L2 to the north may help to prevent the genetic 
isolation of Unit L4. It also contains the largest continuous area of 
Yorkville soils of all the units. Yorkville soils are important 
because, between units L2 and L3, these soils support roughly two 
thirds of all individual D. luteum plants. Because a large proportion 
of the remaining D. luteum individuals occur on Yorkville soils, we 
believe these soils are an indicator of situations in which the plants 
are likely to survive and reproduce. Therefore, we believe it is 
important to protect areas which contain these soils.

Unit L4: Tomales, Marin County, California

    Unit L4 is located approximately 1.4 km (1 mi) south of the town of 
Tomales in Marin County. This 193 ha (476 ac) unit consists of coastal 
prairie and coastal scrub within the fog belt. It contains three 
populations of Delphinium luteum, but two of the populations have not 
been documented since the early 1980's and one of these has been listed 
as ``possibly extirpated'' by the CNDDB. The ``possibly extirpated'' 
population may also have actually consisted of hybrids of D. luteum and 
D. nudicaule (red larkspur). The third population occurs on a road 
embankment rather than in the vicinity of canyon walls. This population 
was documented as recently as 2000, and was genetically tested and 
confirmed to be a non-hybrid, but only one plant was seen at that time 
(CNDDB 2001). This unit is important to the conservation of the species 
because it contains one of very few remaining sites at which the 
species has been recently observed. Due to the limited number of 
populations of D. luteum and the high degree of threat from 
catastrophic events, we believe that all recently documented 
occurrences are essential for the conservation of this species. In 
addition, this unit is important because it represents the southernmost 
extent of the range of D. luteum. The population growing in the road 
embankment may also provide important information on the 
characteristics of managed soil disturbances which can support D. 
luteum. Such information would be of great help in recovering the 
species.

Table 1.--Approximate Areas of Proposed Delphinium bakeri and D. luteum Critical Habitat in Hectares (ha) (Acres
                                             (ac)) by Land Ownership
----------------------------------------------------------------------------------------------------------------
              Species (unit)                             Private                             Total
----------------------------------------------------------------------------------------------------------------
D. bakeri (B1)............................  322 ha (796 ac)..................  322 ha (796 ac)
D. bakeri (B2)............................  418 ha (1,032 ac)................  418 ha (1,032 ac)
D. luteum (L1)............................  554 ha (1,369 ac)................  554 ha (1,369 ac)
D. luteum (L2)............................  133 ha (328 ac)..................  133 ha (328 ac)
D. luteum (L3)............................  166 ha (411 ac)..................  166 ha (411 ac)
D. luteum (L4)............................  193 ha (476 ac)..................  193 ha (476 ac)
----------------------------------------------------------------------------------------------------------------

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, permit, or carry 
out do not destroy or adversely modify critical habitat to the extent 
that the action appreciably diminishes the value of the critical 
habitat for the survival and recovery of the species. Individuals, 
organizations, States, local governments, and other non-Federal 
entities are affected by the designation of critical habitat only if 
their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened, and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist 
Federal agencies in eliminating conflicts that may be caused by their 
proposed action. The conservation recommendations in a conference 
report are advisory. We may issue a formal conference report, if 
requested by the Federal action agency. Formal conference reports 
include an opinion that is prepared according to 50 CFR 402.14, as if 
the species was listed or critical habitat designated. We may adopt the 
formal conference report as the biological opinion when the species is 
listed or critical habitat designated, if no substantial new 
information or changes in the action alter the content of the opinion 
(see 50 CFR 402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that actions 
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 we 
would ensure that the permitted actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also 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

[[Page 41375]]

alternatives can vary from slight project modifications to extensive 
redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat, or adversely modify or destroy proposed critical 
habitat.
    Activities on Federal lands that may affect Delphinium bakeri or D. 
luteum or their critical habitat will require section 7 of the Act 
consultation. Activities on private, State, county, or lands under 
local jurisdictions requiring a permit from a Federal agency, such as a 
permit from the Corps under section 404 of the Clean Water Act, a 
section 10(a)(1)(B) of the Endangered Species Act permit from the 
Service, or some other Federal action, including funding (e.g., Federal 
Highway or Federal Emergency Management Act funding), will continue to 
be subject to the section 7 consultation process. Federal actions not 
affecting listed species or critical habitat and actions on non-Federal 
and private lands that are not federally funded, authorized, or 
permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat for both the conservation of Delphinium bakeri or D. luteum. 
Within critical habitat, this pertains only to those areas containing 
the primary constituent elements. We note that such activities may also 
jeopardize the continued existence of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency may directly or indirectly destroy or adversely modify 
critical habitat for Delphinium luteum or D. bakeri include, but are 
not limited to:
    (1) Ground disturbances which destroy or degrade primary 
constituent elements of the plant (e.g., clearing, tilling, grading, 
construction, road building, mining, etc.);
    (2) Activities which directly or indirectly affect Delphinium 
bakeri or D. luteum plants (e.g., herbicide application, heavy off-road 
vehicle use, introductions of non-native herbivores, significant 
unmanaged grazing during times when D. bakeri or D. luteum is producing 
flowers or seeds, etc.);
    (3) Activities which significantly degrade or destroy Delphinium 
bakeri pollinator populations (e.g., pesticide applications); and
    (4) Activities that would appreciably change the rate of erosion of 
soils for Delphinium luteum such as slope stabilization; residential 
and commercial development, including road building and golf course 
installation; and vegetation manipulation such as clearing and grubbing 
upslope from D. luteum.
    Designation of critical habitat could affect the following agencies 
or actions--development on private lands requiring permits from Federal 
agencies, such as 404 permits from the U.S. Army Corps of Engineers or 
permits from other Federal agencies such as Housing and Urban 
Development, authorization of release of biological control agents by 
the U.S. Department of Agriculture, road construction by Federal 
Highway Administration, watershed management activities of the Natural 
Resource Conservation Service, and authorization of Federal grants or 
loans.
    Where federally listed wildlife species occur on private lands 
proposed for development, any habitat conservation plans submitted by 
the applicant to secure a permit to take according to section 
10(a)(1)(B) of the Act would be subject to take authorization within 
the Service's internal section 7 consultation on the habitat 
conservation plan. Other listed species that occur in the same general 
area as the Delphinium luteum include the Myrtle's silverspot butterfly 
(Speyeria zerene myrtleae) and the California red-legged frog (Rana 
aurora draytonii).
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT 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 (telephone 503/231-
6131; FAX 503/231-6243).

Relationship to Habitat Conservation Plans and Other Planning Efforts

    Currently, no habitat conservation plans (HCPs) exist that include 
Delphinium bakeri or D. luteum as covered species. Subsection 4(b)(2) 
of the Act allows us to exclude from critical habitat designation areas 
where the benefits of exclusion outweigh the benefits of designation, 
provided the exclusion will not result in the extinction of the 
species. We believe that in most instances, the benefits of excluding 
HCPs from critical habitat designations will outweigh the benefits of 
including them. 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 Delphinium bakeri or D. 
luteum are developed within the boundaries of the designated critical 
habitat, we will work with applicants to ensure that the HCPs provide 
for protection and management of habitat areas essential for the 
conservation of these species. This will be accomplished by either 
directing development and habitat modification to nonessential areas, 
or appropriately modifying activities within essential habitat areas so 
that such activities will not adversely modify the primary constituent 
elements. The HCP development process would provide an opportunity for 
more intensive data collection and analysis regarding the use of 
particular habitat areas by D. bakeri or D. luteum. 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 provide technical assistance and work closely with 
applicants throughout the development of any future HCPs to identify 
lands essential for the long-term conservation of Delphinium bakeri or 
D. luteum and appropriate management for those lands. Furthermore, we 
will complete intra-Service consultation on our issuance of section 
10(a)(1)(B) permits for these HCPs to ensure permit

[[Page 41376]]

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 part of 
critical habitat. We cannot exclude such areas from critical habitat 
when such exclusion will result in the extinction of the species. We 
will conduct an analysis of the economic impacts of designating these 
areas as critical habitat prior to a final determination. When 
completed, we will announce the availability of the draft economic 
analysis with a notice in the Federal Register, and we will open a 30-
day public comment period on the draft economic analysis and proposed 
rule at that time.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of 
Delphinium bakeri and D. luteum and their habitats, and which habitats 
are essential to the conservation of these species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (5) Economic and other values associated with designating critical 
habitat for Delphinium bakeri and D. luteum such as those derived from 
non-consumptive uses (e.g., hiking, camping, bird-watching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs); and
    (6) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods: (1) You may 
submit written comments and information to the Field Supervisor at the 
address provided in the ADDRESSES section above; (2) You may also 
comment via the electronic mail (e-mail) to [email protected]. Please submit e-mail comments as an ASCII file 
avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: [1018-AG96] and your name and return 
address in your e-mail message.'' If you do not receive a confirmation 
from the system that we have received your e-mail message, contact us 
directly by calling our Sacramento Fish and Wildlife Office at phone 
number (916) 414-6600. Please note that the Internet address [email protected] will be closed out at the termination of the 
public comment period; and (3) You may hand-deliver comments to our 
Sacramento office (see ADDRESSES section above).
    Our practice is to make comments available for public review during 
regular business hours, including names and home addresses of 
respondents. Individual respondents may request that we withhold their 
home address from the rulemaking record, which we will honor to the 
extent allowable by law. In some circumstances, we would withhold from 
the rulemaking record a respondent's identity, as allowable by law. If 
you wish for us to withhold your name or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. To the extent consistent with applicable 
law, we will make all submissions from organizations or businesses, and 
from individuals identifying themselves as representatives or officials 
of organizations or businesses, available for public inspection in 
their entirety. Comments and materials received will be available, 
during normal business hours at the above address.

Peer Review

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

Public Hearings

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

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Is the description 
of the proposed rule in the ``Supplementary Information'' section of 
the preamble helpful in understanding the proposed rule? What else 
could we do to make the proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant

[[Page 41377]]

rule and was reviewed by the Office of Management and Budget (OMB). The 
Service is preparing a draft economic analysis of this proposed action. 
The Service will use this analysis to meet the requirement of section 
4(b)(2) of the ESA to determine the economic consequences of 
designating the specific areas as critical habitat and excluding any 
area from critical habitat if it is determined that the benefits of 
such exclusion outweigh the benefits of specifying such areas as part 
of the critical habitat, unless failure to designate such area as 
critical habitat will lead to the extinction of Delphinium bakeri or D. 
luteum. This analysis will be available for public comment before 
finalizing this designation. The availability of the draft economic 
analysis will be announced in the Federal Register.

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

    This discussion is based upon the information regarding potential 
economic impact that is available to the Service at this time. This 
assessment of economic effect may be modified prior to final rulemaking 
based upon development and review of the economic analysis being 
prepared pursuant to section 4(b)(2) of the ESA and E.O. 12866. This 
analysis is for the purposes of compliance with the Regulatory 
Flexibility Act and does not reflect the position of the Service on the 
type of economic analysis required by New Mexico Cattle Growers Assn. 
v. U.S. Fish & Wildlife Service 248 F.3d 1277 (10th Cir. 2001).
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects 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 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act (RFA) to require Federal agencies to provide 
a statement of the factual basis for certifying that a rule will not 
have a significant economic impact on a substantial number of small 
entities. SBREFA also amended the RFA to require a certification 
statement. In today's rule, we are certifying that the rule will not 
have a significant effect on a substantial number of small entities. 
The following discussion explains our rationale.
    We must determine whether the proposed rulemaking will affect a 
substantial number of small entities. Small entities include small 
organizations, such as independent non-profit organizations, and small 
governmental jurisdictions, including school boards and city and town 
governments that serve fewer than 50,000 residents, as well as small 
businesses (13 CFR 121.201). 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. If the 
proposed rulemaking will affect a substantial number of small entities, 
we must determine if there will be a significant economic impact on 
them.
    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. In some circumstances, especially with 
proposed critical habitat designations of very 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; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; non-Federal activities are 
not affected by the designation. In areas where these species are 
present, Federal agencies are already required to consult with us under 
section 7 of the Act on activities that they fund, permit, or implement 
that may affect Delphinium bakeri or D. luteum. If this critical 
habitat designation is finalized, Federal agencies must also consult 
with us if their activities may affect designated critical habitat. 
However, we do not believe this will result in any additional 
regulatory burden on Federal agencies or their applicants because 
consultation would already be required due to the presence of the 
listed species, and the duty to avoid adverse modification of critical 
habitat would not trigger additional regulatory impacts beyond the duty 
to avoid jeopardizing the species.
    Even if the duty to avoid adverse modification does not trigger 
additional regulatory impacts in areas where these species are present, 
designation of critical habitat could result in an additional economic 
burden on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities. However, we have only 
completed one conference and one consultation on Delphinium bakeri and 
D. luteum since they were proposed for listing. As a result, the 
requirement to reinitiate consultation for ongoing projects will not 
affect a substantial number of small entities.
    When the species are clearly not present, designation of critical 
habitat could trigger additional review of Federal activities under 
section 7 of the Act. Because Delphinium bakeri and D. luteum have been 
listed only a relatively short time and there have been few activities 
with Federal involvement in these areas during this time, there is not 
a detailed history of consultations based on the listing of these 
species. Therefore, for the purposes of this review and certification 
under the Regulatory Flexibility Act, we are assuming that any future 
consultations in the area proposed as critical habitat will be due to 
the critical habitat designation.
    No Federal lands are included in this proposed critical habitat 
designation, so this rule will not affect any small entities involved 
in grazing or other activities on Federal lands. On private lands, 
activities that lack Federal involvement would not be affected by the 
critical habitat designation. Current activities of an economic nature 
that occur on private lands in the area encompassed by this proposed 
designation are primarily agricultural, such as livestock grazing and 
farming. Because these areas are zoned rural and not near cities or 
towns, multiple-unit residential or commercial development is unlikely. 
Therefore, Federal agencies such as the Economic Development 
Administration, which is occasionally involved in funding municipal 
projects elsewhere, is unlikely to be involved in projects in these 
areas. In rural regions of Sonoma and Marin counties, previous 
consultations under section 7 of the Act between us and other Federal 
agencies

[[Page 41378]]

most frequently involved the U.S. Army Corps of Engineers (ACOE) or the 
Federal Highway Administration (FHWA). In FHWA consultations, the 
applicant is either the California State Department of Transportation 
or the County, neither of which is considered a small entity as defined 
here. The ACOE consultations involve wetlands or waterways and occur 
due to the presence of species (or their critical habitat) that spend 
at least part of their life in aquatic habitats. Delphinium bakeri and 
D. luteum are upland plant species and unlikely to be the subject of 
consultations with the ACOE, unless the project is very large and would 
include wetlands otherwise not associated with these species. In 
agricultural areas, the Natural Resources Conservation Service (NRCS) 
occasionally funds activities on farms or ranches that require 
consultation with us. We have not had any formal consultations with the 
NRCS on this type of project within Marin or Sonoma counties over the 
past 5 years. Sonoma and Marin counties encompass about 1.3 million 
acres of land and support over 35 listed species. Based on the low 
level of past activity, we expect few consultations with the NRCS or 
other Federal agencies on the 4,412 acres of non-Federal lands proposed 
in this rule. For these reasons, the Service determines that the number 
of small entities likely to be affected by this rule will not be 
substantial.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements. 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 would result 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. 
However, the Act does not prohibit the take of listed plant species or 
require terms and conditions to minimize adverse effect to critical 
habitat. 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 gather information that could contribute to the 
recovery of the species.
    Based on our experience with section 7 consultations 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 consultations--can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures, by definition, must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation. As we have a very limited consultation 
history for Delphinium bakeri and D. luteum 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 they face, especially as described 
in the final listing rule and in this proposed critical habitat 
designation, as well as our experience with similar listed plants in 
California. In addition, the State of California listed D. bakeri and 
D. luteum as rare species under the California Endangered Species Act 
in 1978, and we have also considered the kinds of actions required 
through State consultations for this species. The kinds of actions that 
may be included in future reasonable and prudent alternatives include 
conservation set-asides, management of competing non-native species, 
restoration of degraded habitat, construction of protective fencing, 
and regular monitoring. These measures are not likely to result in a 
significant economic impact to project proponents.
    In summary, we have considered whether this proposed rule would 
result in a significant economic effect on a substantial number of 
small entities. It would not affect a substantial number of small 
entities. The entire designation likely involves fewer than 100 
privately owned parcels; many of these parcels are located in areas 
where likely future land uses are not expected to result in Federal 
involvement or section 7 consultations. As discussed earlier, most of 
the private parcels within the proposed designation are currently being 
used for agricultural purposes and, therefore, are not likely to 
require any Federal authorization. In the remaining areas, Federal 
involvement--and thus section 7 consultations, the only trigger for 
economic impact under this rule--would be limited to a subset of the 
area proposed. The most likely Federal involvement could include ACOE 
permits, permits we may issue under section 10(a)(1)(B) of the Act, 
FHWA funding for road improvements, and voluntary watershed management 
and restoration project funding by NRCS.
    This rule would result in project modifications only when proposed 
Federal activities would destroy or adversely modify critical habitat. 
While this may occur, it is not expected frequently enough to affect a 
substantial number of small entities. Even when it does occur, we do 
not expect it to result in a significant economic impact, as the 
measures included in reasonable and prudent alternatives must be 
economically feasible and consistent with the proposed action. We 
anticipate that the kinds of reasonable and prudent alternatives that 
we would provide can usually be implemented at low cost. Therefore, we 
are certifying that the proposed designation of critical habitat for 
Delphinium bakeri and D. luteum will not have a significant economic 
impact on a substantial number of small entities, and an initial 
regulatory flexibility analysis is not required.

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

    In the economic analysis we will determine 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.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on

[[Page 41379]]

regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. 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.

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

    The Service will use the economic analysis to evaluate consistency 
with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

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 the two Delphinium species from Marin 
and Sonoma counties, California in a preliminary takings implication 
assessment. This preliminary assessment concludes that this proposed 
rule does not pose significant takings implications. However, we have 
not yet completed the economic analysis for this proposed rule. Once 
the economic analysis is available, we will review and revise this 
preliminary assessment as warranted.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with the Department of the Interior policy, we 
requested information from, and coordinated development of this 
critical habitat designation with, the appropriate State resource 
agencies in California. Where the species are present, the designation 
of critical habitat imposes no additional restrictions to those 
currently in place, and therefore, has little environmental impact on 
State and local governments and their activities. The designation may 
have some benefit to these governments in that the areas essential to 
the conservation of these species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the survival 
of the species are identified. While this definition and identification 
does not alter where and what federally sponsored activities may occur 
it may assist these local governments in long range planning (rather 
than waiting for case-by-case section 7 consultation to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate 
critical habitat in accordance with the provisions of the Endangered 
Species Act. The rule uses standard property descriptions and 
identifies the principal constituent element within the designated 
areas to assist the public in understanding the habitat needs of 
Delphinium bakeri and D. luteum.

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

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not 
impose new recordkeeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency may 
not conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
readily acknowledge our responsibility to communicate meaningfully with 
federally recognized Tribes on a Government-to-Government basis. We 
have determined that there are currently no Tribal lands essential for 
the conservation of Delphinium bakeri or D. luteum because they do not 
support populations, nor do they provide essential habitat. Therefore, 
critical habitat for D. bakeri and D. luteum has not been designated on 
Tribal lands.

References Cited

    A complete list of all references cited herein is available upon 
request from the Sacramento Fish and Wildlife Office (see ADDRESSES 
section)

Author

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec. 17.12(h) revise the entries for ``Delphinium luteum'' 
and for ``Delphinium bakeri,'' under ``FLOWERING PLANTS,'' to read as 
follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 

[[Page 41380]]

 
                      *                *                 *                 *                 *                 *                 *
Delphinium bakeri................  Baker's larkspur....  U.S.A. (CA)........  Ranunculaceae......  E                       681     17.96(b)           NA
Delphinium luteum................  Yellow larkspur.....  U.S.A. (CA)........  Ranunculaceae......  E                       681     17.96(b)           NA
 
                      *                *                 *                 *                 *                 *                 *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec. 17.96, as proposed to be amended at 65 FR 66865, 
November 7, 2000, amend paragraph (b) by adding critical habitat for 
Delphinium bakeri and for Delphinium luteum in alphabetical order under 
Family Ranunculaceae to read as follows:


Sec. 17.96  Critical habitat--plants.

* * * * *
    (b) * * *
    Family Ranunculaceae: Delphinium bakeri (Baker's larkspur)
    (1) Critical habitat units are depicted for Sonoma and Marin 
counties, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Delphinium bakeri are the habitat components that provide:
    (i) Soils that are derived from decomposed shale;
    (ii) Plant communities that support associated species, including, 
but not limited to: Umbellularia californica (California bay), Aesculus 
californica (California buckeye), and Quercus agrifolia (coastal live 
oak). Other native plants associated with D. bakeri include--Baccharis 
pulularis ssp. consanguinea (coyotebrush), Symphorcarpos cf. rivularis 
(snowberry), Rubus ursinus (California blackberry), Pteridium aqulinum 
(braken fern), Polystichum munitum (Sword fern), Pityrogramma 
triangularis (goldback fern), Dryopteris arguta (coastal woodfern), 
Adiantum jordanii (maidenhair fern), and Polypodium glycyrrhiza 
(licorice fern); and
    (iii) Mesic conditions on extensive north-facing slopes.
    (3) Critical habitat does not include existing man-made features 
and structures, such as buildings, roads, aqueducts, railroads, airport 
runways and buildings, other paved areas, lawns, and other urban 
landscaped areas not containing one or more of the primary constituent 
elements.
    (4) Critical Habitat Map Units.
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles obtained from the State of California's Stephen P. 
Teale Data Center. Proposed critical habitat units were then mapped 
using Universal Transverse Mercator (UTM) coordinates.
    (ii) Map 1--Index map follows:
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[[Page 41381]]

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[[Page 41382]]

    (5) Unit B1: Sonoma County, California.
    (i) From USGS 1:24,000 quadrangle maps Camp Meeker and Duncan 
Hills, California, land bounded by the following UTM10 NAD83 
coordinates (E,N): 498360, 4249440; 498030, 4249650; 498040, 4249990; 
498160, 4250150; 498430, 4250320; 498420, 4250440; 499140, 4250680; 
499380, 4250710; 499510, 4250490; 499840, 4250710; 499880, 4250840; 
500250, 4250840; 500580, 4250770; 500730, 4250780; 501020, 4250950; 
501080, 4251070; 501360, 4251270; 501520, 4251370; 501730, 4251520; 
502100, 4251370; 502190, 4251180; 502120, 4251090; 501830, 4251060; 
501570, 4250750; 501380, 4250720; 501400, 4250360; 501230, 4250330; 
501090, 4250220; 501070, 4250030; 500720, 4249960; 500550, 4249990; 
500220, 4249930; 500190, 4249700; 499680, 4249760; 499520, 4249850; 
499250, 4249830; 499210, 4249730; 498880, 4249750; 498620, 4250050; 
498600, 4249490; 498360, 4249440
    (ii) Map 2--Unit B1 follows:
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[[Page 41383]]

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[[Page 41384]]

    (6) Unit B2: Marin County, California.
    (i) From USGS 1:24,000 quadrangle maps Petaluma and Point Reyes NE, 
California, land bounded by the following UTM10 NAD83 coordinates 
(E,N): 521780, 4222900; 521560, 4223000; 521350, 4223070; 521230, 
4223130; 520980, 4223320; 520890, 4223460; 520680, 4223430; 520220, 
4223440; 520100, 4223460; 519940, 4223460; 519870, 4223360; 519720, 
4223280; 519510, 4223340; 519400, 4223480; 519350, 4223630; 519360, 
4223760; 519410, 4223800; 519530, 4223970; 519640, 4224090; 519830, 
4224140; 519980, 4224160; 520440, 4224100; 520760, 4224100; 520990, 
4224170; 521130, 4224160; 521460, 4224080; 521740, 4223960; 521820, 
4223870; 521960, 4223770; 522130, 4223810; 522290, 4224000; 522320, 
4224070; 522480, 4224160; 522550, 4224310; 522830, 4224380; 523160, 
4224240; 523340, 4224250; 523470, 4224360; 523660, 4224430; 523750, 
4224480; 523920, 4224510; 524070, 4224620; 524460, 4224710; 524860, 
4224530; 525010, 4224370; 525030, 4224250; 524690, 4224190; 524590, 
4224200; 524360, 4224100; 524280, 4223950; 524050, 4223780; 523920, 
4223650; 523700, 4223480; 523600, 4223640; 523480, 4223720; 523210, 
4223700; 522880, 4223510; 522650, 4223450; 522370, 4223230; 522170, 
4223120; 522050, 4223080; 521860, 4222980; 521780, 4222900
    (ii) Map 3--Unit B2 follows:
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[[Page 41385]]

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BILLING CODE 4310-55-C

[[Page 41386]]

    Family Ranunculaceae: Delphinium luteum (Yellow larkspur)
    (1) Critical habitat units are depicted for Sonoma and Marin 
counties, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Delphinium luteum are the habitat components that provide:
    (i) Plant communities that support the appropriate associated 
species, including north coastal scrub or coastal prairie communities;
    (ii) Soils derived from sandstone or shale, with rapid runoff and 
high erosion potential, such as Kneeland or Yorkville series soils;
    (iii) Generally north aspected areas near steep sloped canyon 
walls; and
    (iv) Habitat upslope and downslope from known populations to 
maintain disturbance such as occasional rock slides or soil slumping 
that the species appears to require.
    (3) Critical habitat does not include man-made existing features 
and structures, such as buildings, roads, aqueducts, railroads, airport 
runways and buildings, other paved areas, lawns, and other urban 
landscaped areas not containing one or more of the primary constituent 
elements.
    (4) Critical Habitat Map Units.
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles obtained from the State of California's Stephen P. 
Teale Data Center. Proposed critical habitat units were then mapped 
using Universal Transverse Mercator (UTM) coordinates.
    (i) Index map follows.
BILLING CODE 4310-55-P

[[Page 41387]]

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BILLING CODE 4310-55-C

[[Page 41388]]

    (5) Unit L1:-Bodega Bay, Sonoma County, California.
    (i) From USGS 1:24,000 quadrangle map Bodega Head. Lands bounded by 
the following UTM10 NAD83 coordinates (E,N): 496820, 4241560; 496870, 
4241690; 497130, 4241990; 497110, 4242130; 497170, 4242240; 497250, 
4242220; 497470, 4242550; 497440, 4242700; 497930, 4242940; 498340, 
4242940; 498430, 4243040; 498640, 4242960; 498720, 4243080; 499110, 
4243090; 499410, 4242960; 499690, 4242760; 499650, 4242560; 500250, 
4242210; 500030, 4241880; 500140, 4241320; 499900, 4240730; 499750, 
4240650; 498690, 4240750; 498220, 4241010; 497940, 4241050; 497590, 
4241010; 497450, 4241220; 497500, 4241630; 497750, 4241830; 497760, 
4241970; 497720, 4242010; 497630, 4242010; 497520, 4241940; 497480, 
4241850; 497320, 4241860; 497170, 4241680; 497100, 4241500; 497030, 
4241410; 496910, 4241440; 496820, 4241560;
    (6) Unit L2: Estero Americano, Marin County, California.
    (i) From USGS 1:24,000 quadrangle map Valley Ford. Lands bounded by 
the following UTM10 NAD83 coordinates (E,N): 499970, 4238100; 500010, 
4238150; 500010, 4238240; 499870, 4238480; 500010, 4238710; 500140, 
4238860; 500280, 4238940; 500470, 4238970; 500580, 4239030; 500630, 
4239070; 500720, 4239040; 500850, 4238840; 500890, 4238860; 500970, 
4238830; 501050, 4238740; 501170, 4238740; 501180, 4238650; 501300, 
4238460; 501440, 4238320; 501510, 4238120; 501340, 4238000; 501270, 
4238010; 501190, 4238000; 501120, 4238010; 500900, 4237990; 500870, 
4237960; 500860, 4237860; 500730, 4237850; 500570, 4237760; 500470, 
4237800; 500380, 4237730; 500250, 4237890; 500240, 4237940; 500180, 
4237980; 499990, 4238060; 499970, 4238100
    (ii) Map 2--Units L1 and L2 follows:
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    (7) Unit L3: Estero de San Antonio, Marin County, California.
    From USGS 1:24,000 quadrangle map Valley Ford. Lands bounded by the 
following UTM10 NAD83 coordinates (E,N): 502060, 4235600; 502110, 
4235750; 502230, 4235770; 502300, 4235840; 502350, 4235930; 502370, 
4236030; 502410, 4236100; 502510, 4236150; 502700, 4236150; 502900, 
4235910; 503010, 4235860; 502900, 4236160; 502870, 4236120; 502700, 
4236260; 502880, 4236400; 503060, 4236370; 503130, 4236240; 503070, 
4236180; 503090, 4236010; 503200, 4235950; 503260, 4235990; 503170, 
4236090; 503280, 4236180; 503410, 4236100; 503470, 4236040; 503430, 
4235810; 503460, 4235720; 503600, 4235580; 503800, 4235490; 503950, 
4235300; 504020, 4235010; 504030, 4234810; 504000, 4234630; 503920, 
4234390; 503780, 4234410; 503780, 4234890; 503710, 4234990; 503610, 
4234970; 503520, 4234840; 503560, 4234620; 503580, 4234470; 503520, 
4234440; 503350, 4234580; 503360, 4234710; 503250, 4234860; 502990, 
4234970; 502950, 4235100; 502700, 4235170; 502710, 4235260; 502810, 
4235330; 502800, 4235510; 502580, 4235480; 502510, 4235510; 502530, 
4235580; 502390, 4235560; 502310, 4235470; 502200, 4235470; 502060, 
4235600;
    (8) Unit L4: Tomales, Marin County, California
    (i) From USGS 1:24,000 quadrangle map Tomales. Lands bounded by the 
following UTM10 NAD83 coordinates (E,N): 506200, 4229650; 506000, 
4229960; 506040, 4230020; 506330, 4230130; 506450, 4230630; 506550, 
4230640; 506760, 4230830; 506840, 4231090; 507070, 4231150; 507230, 
4231260; 507340, 4231460; 507170, 4231740; 507270, 4231860; 507400, 
4231820; 507550, 4231930; 507660, 4231930; 507780, 4232080; 507810, 
4232220; 507870, 4232340; 507990, 4232290; 508250, 4232250; 508320, 
4232050; 508110, 4231810; 508090, 4231660; 507960, 4231700; 507920, 
4231670; 507950, 4231580; 507630, 4231410; 507520, 4231200; 507560, 
4230830; 507560, 4230620; 507510, 4230590; 507490, 4230470; 507440, 
4230300; 507440, 4230220; 507330, 4230050; 507300, 4229930; 507320, 
4229820; 507310, 4229770; 507230, 4229730; 507060, 4229730; 506960, 
4229740; 506780, 4229830; 506710, 4229840; 506580, 4229790; 506600, 
4229860; 506720, 4230150; 506770, 4230340; 506640, 4230230; 506460, 
4230020; 506200, 4229650;
    (ii) Map 7--Units L3 and L4 follows:
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* * * * *

    Dated: June 11, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-15340 Filed 6-17-02; 8:45 am]
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