[Federal Register Volume 67, Number 237 (Tuesday, December 10, 2002)]
[Rules and Regulations]
[Pages 76030-76053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30890]



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Part VI





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Deinandra conjugens (Otay tarplant); Final Rule

  Federal Register / Vol. 67, No. 237 / Tuesday, December 10, 2002 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH00


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Deinandra conjugens (Otay tarplant)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for Deinandra conjugens [= Hemizonia conjugens] (Otay 
tarplant) pursuant to the Endangered Species Act of 1973, as amended 
(Act). Deinandra conjugens was federally listed as threatened (under 
the name Hemizonia conjugens) throughout its range in southwestern 
California and northwestern Estado de Baja California, Mexico in 1998. 
The designation includes approximately 2,560 hectares (ha) (6,330 acres 
(ac)) in San Diego County, California, as critical habitat for 
Deinandra conjugens.

DATES: The effective date of this rule is January 9, 2003.

ADDRESSES: You may inspect the supporting record for this rule at the 
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 
Hidden Valley Road, Carlsbad, CA 92009, by appointment during normal 
business hours.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the above address; telephone 760/431-9440, 
facsimile 760/431-5902. Information regarding this designation is 
available in alternate formats upon request.

SUPPLEMENTARY INFORMATION:

Background

    Deinandra conjugens (Otay tarplant) was known as Hemizonia 
conjugens when it was listed on October 13, 1998 (63 FR 54938). Since 
then, studies analyzing plant and floral morphology and genetic 
information prompted Baldwin (1999) to revise the Madiinae (tarplants), 
a tribe in the Asteraceae (sunflower family), and reclassify several 
taxa into new or different genera. As a result, Deinandra conjugens is 
now the accepted scientific name for Hemizonia conjugens. This 
taxonomic change does not alter the limits or definition of Deinandra 
conjugens. Because this taxonomic change was published and is generally 
accepted by the scientific community, we are changing the name of 
Hemizonia conjugens to Deinandra conjugens in 50 CFR 17.12 (h), and 
will use Deinandra conjugens in this final rule.
    Deinandra conjugens was first described by David D. Keck (1958) as 
Hemizonia conjugens based on a specimen collected by L.R. Abrams in 
1903 from river bottom land in the Otay Valley area of San Diego 
County, California. Deinandra conjugens is a glandular, aromatic annual 
plant in the Asteraceae. It has a branching stem that generally ranges 
from 5 to 25 centimeters (2 to 10 inches) in height with deep green or 
gray-green leaves covered with soft, shaggy hairs. The yellow flower 
heads are composed of 8 to 10 ray flowers and 13 to 21 disk flowers 
with hairless or sparingly downy corollas (fused petals). The 
phyllaries (small bracts associated with the flower heads) are ridged 
and have short-stalked glands and large, stalkless, flat glands near 
the margins. Deinandra conjugens occurs within the range of Deinandra 
fasciculata [=H. fasciculata] (fasciculated tarplant) and Deinandra 
paniculata [=H. paniculata] (San Diego tarplant). Deinandra conjugens 
can be distinguished from other members of the genus by its ridged 
phyllaries, black anthers (part of flower that produces pollen), and by 
the number of disk and ray flowers. The disk and ray flowers each 
produce different types of seeds (heterocarpy), which has been 
correlated to differential germination responses (Tanowitz et al. 
1987).
    Most known Deinandra conjugens occurrences are closely associated 
with particular soils, vegetation types, and elevation range. The 
majority of Deinandra conjugens occurrences are associated with clay 
soils and with grasslands, coastal sage scrub, or maritime succulent 
scrub. Information from herbarium records at the San Diego Natural 
History Museum (SDNHM) and data from the California Natural Diversity 
Database (CNDDB 2002) records indicates that Deinandra conjugens has a 
narrow geographic and elevation range.
    The distribution of Deinandra conjugens is strongly correlated with 
clayey soils, subsoils, or lenses (isolated area of clay soil) (Bauder 
et al. 2002). Such soils typically support grasslands, but may support 
some woody vegetation. Much of the area with clay soils and subsoils 
within the historical range of Deinandra conjugens likely was once 
vegetated with native grassland, open coastal sage scrub and maritime 
succulent scrub, which provided suitable habitat for Deinandra 
conjugens. Based on Geographic Information Systems (GIS) analysis, most 
current and historical Deinandra conjugens occurrences are found on 
clay soils or lenses in one of the following soil series: Diablo; 
Olivenhain; Linne; Salinas; Huerhuero; Auld; Bosanko; Friant; and San 
Miguel-Exchequer rocky silt loams (Bauder et al. 2002).
    The occurrence of Deinandra conjugens is also strongly associated 
with particular vegetation types. The species is found in vegetation 
communities classified as, but not limited to, grasslands, open coastal 
sage scrub, maritime succulent scrub, and the margins of some disturbed 
sites and cultivated fields (CNDDB 2002; Keck 1959; Keil 1993; CNPS 
2001; David Hogan, San Diego Biodiversity Project, in litt. 1990; Bruce 
Baldwin, Jepson Herbarium, pers. comm., 2001; Mark Dodero, RECON, pers. 
comm., 2001; Scott McMillan, McMillan Biological Consulting, pers. 
comm., 2001). Plant species common to these vegetation communities 
include Nassella spp. (needlegrass), Bloomeria crocea (common 
goldenstar), Dichelostemma pulchella (blue dicks), Chlorogalum spp. 
(soap plant), Bromus spp. (brome grass), Avena spp. (oats), Deinandra 
fasciculata (fasciculated tarweed), Lasthenia californica (common 
goldfields), Artemisia californica (California sagebrush), Eriogonum 
fasciculatum (flat-top buckwheat), Lotus scoparius (deer weed), Salvia 
spp. (sage), Mimulus aurantiacus (bush monkeyflower), Malacothamnus 
fasciculatum (bushmallow), Malosma laurina (laurel sumac), Rhus ovata 
(sugar bush), R. integrifolia (lemonade berry), Lycium spp. (boxthorn), 
Euphorbia misera (cliff spurge), Simmondsia chinensis (jojoba), Opuntia 
spp. (prickly pear and cholla cactuses), Ferocactus viridescens 
(coastal barrel cactus), Ambrosia chenopodiifolia (San Diego bur sage), 
and Dudleya spp. (live-forevers).
    Information acquired since the listing indicates that the 
historical range for Deinandra conjugens in San Diego County, 
California, is extended from the Mexican border north to Spring Valley 
and Paradise Valley, a distance of about 24 kilometers (km) (15 miles 
(mi)), and from Interstate 805 east to Otay Lakes Reservoir, a distance 
of about 13 km (8 mi) (herbarium records at the SDNHM and CNDDB 2002). 
Further, based on museum specimens and database records, the 
elevational range for Deinandra conjugens appears to be between 25 and 
300 meters (m) (80 and 1,000 feet (ft)).
    Typically, Deinandra conjugens and other tarplants cannot produce 
viable seeds without cross pollinating with

[[Page 76031]]

other individuals (i.e., are essentially self-incompatible) (Keck 1959; 
Tanowitz 1982; B. Baldwin, in litt. 2001). Gene flow among plant 
populations through pollination is important for the long-term survival 
of self-incompatible species (Ellstrand 1992). Gene flow in Deinandra 
conjugens is essentially achieved through pollen movement among 
occurrences. Because small occurrences of Deinandra conjugens may 
facilitate greater gene flow, conservation of these may be critical to 
maintaining genetic diversity in Deinandra conjugens. Likely 
pollinators of Deinandra conjugens include, but are not limited to, bee 
flies (Bombylliidae); hover flies (Syrphidae); digger bees (Apidae); 
carpenter and cuckoo bees (Anthophoridae); leaf mason and leaf cutting 
bees (Megachilidae); and metallic bees (Halictidae) (Krombein et al. 
1979; Bauder et al. 2002; M. Dodero, pers. comm., 2001). The following 
bee species have been documented visiting Deinandra species: Nomia 
melanderi; Colletes angelicus; Nomadopsis helianthi; Ventralis 
claypolei ausralior; Anthidiellum notatum robertsoni; Heriades 
occidentalis; Anthocopa hemizoniae; Ashmeadiella californica 
californica; Svastra sabinensis nubila; Melissodes tessellata; M. 
moorei; M. personatella; M. robustior; M. semilupina; M. lupina; M. 
stearnsi; Anthophora urbana urbana; and A. curta curta (Krombein et al. 
1979).
    Deinandra conjugens fruits are each one-seeded and are likely to be 
dispersed by small to large-sized mammals and birds based on the sticky 
nature of the remaining flower parts that are attached to the fruits 
and the discontinuous distribution of other tarplants (B. Baldwin, in 
litt. 2001; M. Dodero, pers. comm., 2001; Elizabeth Friar, Claremont 
Graduate University, pers. comm., 2001; Gjon Hazard, (Service), pers. 
comm., 2001). Potential seed/fruit dispersal organisms known to occur 
in the region include, but are not limited to, mule deer (Odocoileus 
hemionus), gray fox (Urocyon cinereoargenteus), coyote (Canis latrans), 
black-tailed jackrabbit (Lepus californicus bennettii), bobcat (Felis 
rufus), striped skunk (Mephitis mephitis), opossum (Didelphis 
virginiana), racoon (Procyon lotor), and various small land birds.
    A seed bank (a reserve of dormant seeds, generally found in the 
soil) is important for year-to-year and long-term survival (Given 1994, 
Rice 1989). A seed bank includes all of the seeds in a population and 
generally covers a larger area than the extent of observable plants 
seen in a given year. The number and location of standing plants in a 
population varies annually due to a number of factors, including the 
amount and timing of rainfall, temperature, soil conditions, and the 
extent and nature of the seed bank. Large annual fluctuations in the 
number of standing plants in a given population have been documented. 
Population size has ranged from 1 to over 5,400 standing plants at a 
site on northwest Otay Mesa (CNDDB 2002; City of San Diego, in litt. 
1999), from approximately 100 to 50,000 at a site in Rice Canyon (CNDDB 
2002), and from approximately 280,000 to 1.9 million at San Miguel 
Ranch South (CNDDB 2002; Merkel & Associates, in litt. 1999). In any 
given year, the observable plants in a population are only the portion 
of the individuals from the seed bank that germinated that year. These 
annual fluctuations make it look as though a population of annual 
plants ``moves'' from year to year, when in actuality, a different 
portion of a population germinates and flowers each year. The spatial 
distribution of a standing population of annual plants is generally the 
result of the spatial distribution of the micro-environmental 
conditions conducive to seed germination and growth of the plants.
    Determining the size or magnitude of a given Deinandra conjugens 
population is difficult due to the major fluctuations that have been 
documented in known populations (CNDDB 2002; Merkel & Associates, in 
litt. 1999). Conditions during some years are better for growth and 
reproduction of Deinandra conjugens in some populations (and even some 
portions of a population) than during other years. Because the number 
of standing plants in a given population can vary by orders of 
magnitude from one year to the next, the number of standing plants 
observed in a population in any one year does not necessarily indicate 
the potential magnitude of that population.
    Deinandra conjugens has a limited distribution consisting of at 
least 25 historical populations near Otay Mesa in southern San Diego 
County and one population in Estado de Baja California, Mexico, near 
the United States border (CDFG 1994; Roberts 1997; CNDDB 2002; Reiser 
1996; herbarium records at the SDNHM; S. Morey, in litt. 1994). Three 
of the 25 historic populations of Deinandra conjugens in the United 
States are considered to be extirpated (CNDDB 2002; D. Hogan, in litt. 
1990; S. Morey, in litt. 1994).
    The largest number of Deinandra conjugens plants were recorded in 
1998 when it was estimated that there were over 2 million individuals 
for the species as a whole (CNDDB 2002; Merkel & Associates, in litt. 
1999). However, the number of standing plants from year to year can be 
highly variable. As testament to this variability, the species was 
thought to be extinct within its range until its rediscovery in Estado 
de Baja California, Mexico in 1977 (Tanowitz 1978). Conversely, the 
largest population (Rancho San Miguel) supported about 1.9 million 
plants during 1998 when southern California experienced El Nino weather 
conditions, which resulted in a particularly wet and prolonged growing 
season (Merkel & Associates, in litt. 1999).
    By 1998, the five largest populations of Deinandra conjugens 
(Rancho San Miguel, Rice Canyon, Dennery Canyon, Poggi Canyon, and 
Proctor Valley) were known to support about 98 percent of all reported 
standing plants (CNDDB 2002; San Diego Gas and Electric 1995; Roberts 
1997; Merkel & Associates, in litt. 1999; Morey, in litt. 1994; City of 
Chula Vista 1992; Brenda Stone, California Department of 
Transportation, in litt. 1994) with each reportedly containing more 
than 10,000 standing plants. In 2000, surveys for Deinandra conjugens 
conducted in Johnson Canyon (Helix Environmental Planning, Inc. 2001b) 
and Rolling Hills Ranch (Helix Environmental Planning, Inc. 2001a), 
identified new populations estimated to include approximately 480,000 
and 28,000 standing plants, respectively. Of the remaining populations, 
8 are reported to support from 1,000 to 8,000 plants each; 9 are 
reported to support fewer than 1,000 plants each; and 3 are considered 
to be extirpated (CNDDB 2002). All of the above referenced populations 
occur on Federal, local, and private lands (CNDDB 2002).
    Some of the smaller populations of Deinandra conjugens are believed 
to be essential to the survival and conservation of the species because 
they are strategically located between larger populations and likely 
facilitate gene flow among them. Gene flow among populations has been 
demonstrated to reduce local and global extinctions in a number of 
species (Hanski 1998; Baldwin, in litt. 2001). Processes such as 
mutation, genetic migration, and random genetic drift are known to 
adversely affect small populations (Barrett and Kohn 1991). Adverse 
effects from these processes on Deinandra conjugens would likely be 
magnified by its self-incompatibility (Keck 1959; Tanowitz 1982; 
Baldwin, in litt. 2001). Maintaining gene flow among occurrences and 
between populations is essential to counter the adverse effects from 
the processes mentioned above,

[[Page 76032]]

and to ensure the long-term survival and conservation of this species.
    At the time the species was listed in 1998, we estimated that 70 
percent of the suitable habitat for this species within its known range 
had been lost to development or agriculture (63 FR 54938). Since the 
listing, additional habitat has been lost to development (e.g., urban, 
commercial, industrial, residential) and agriculture (e.g., grazing, 
farming).
    Deinandra conjugens appears to tolerate mild levels of disturbance 
such as light grazing (Hogan, in litt. 1990; Tanowitz, in litt. 1977). 
Such mild disturbances may result in habitat conducive to germination 
(Tanowitz, in litt. 1977). However, the species is otherwise threatened 
by urbanization and related activities, intensive agriculture, and the 
invasion of non-native species, which may result in significant 
disturbance to populations (63 FR 54938). Because of these threats, we 
anticipate that intensive long-term monitoring and management may be 
needed to protect and conserve this species.
    At the time the species was listed in 1998, we estimated that about 
11,930 ha (30,310 ac) of land with clay soils or clay subsoils were 
within the general range of Deinandra conjugens in San Diego County, 
California (63 FR 54938). Also at that time, about 4,200 ha (10,600 ac) 
(about 37 percent) of this area had been urbanized and about 4,155 ha 
(10,555 ac) (about 37 percent) had been heavily cultivated and grazed 
(63 FR 54938). Additional areas have been lost to urbanization since 
this time. New information from herbarium records at the SDNHM 
indicates that the historical range of Deinandra conjugens extended 
further to the north and northwest. Most of the habitat in this 
additional area has already been lost to development. Much of the 
cultivated and grazed lands in this range could be restored to support 
Deinandra conjugens, which can grow in the margins of cultivated fields 
(S. McMillan, pers. comm., 2001; M. Dodero, pers. comm., 2001). 
However, most of these lands will likely be unavailable for the species 
because of proposed urban and agricultural land use (Carlsbad Fish and 
Wildlife Office GIS database 2002 which includes coverages from San 
Diego Association of Governments).

Previous Federal Action

    On December 15, 1980, we published a Notice of Review (NOR) of 
plants which included Deinandra conjugens as a category 1 candidate 
taxon (45 FR 82480). Category 1 taxa were those taxa for which 
substantial information on biological vulnerability and threats are 
available to support preparation of listing proposals. On November 28, 
1983, we published a supplement to the 1980 NOR that treated Deinandra 
conjugens as category 2 candidate taxa (48 FR 53640). Category 2 
candidates were taxa for which data in our possession indicated listing 
was ``possibly appropriate but for which substantial information on 
biological vulnerability and threats were not known or on file to 
support preparation of proposed rules'' (48 FR 53640).
    On December 14, 1990, we received a petition dated December 5, 
1990, from Mr. David Hogan of the San Diego Biodiversity Project, to 
list Deinandra conjugens as endangered. The petition also requested 
designation of critical habitat. Because Deinandra conjugens was 
included in the Smithsonian Institution's Report of 1975, designated as 
House Document No. 94-51, that had been accepted as a petition, we 
regarded Mr. Hogan's petition to list this taxon as a second petition. 
We responded to the petition by publishing a proposed rule to list 
Deinandra conjugens as endangered on August 9, 1995 (60 FR 40549). On 
October 13, 1998, we published a final rule listing Deinandra conjugens 
as threatened (63 FR 54938). At that time, we indicated that 
designation of critical habitat was not prudent.
    On July 15, 1999, the California Native Plant Society (CNPS) and 
Southwest Center for Biological Diversity (SWCBD) filed a lawsuit in 
U.S. District Court for the Southern District of California, in part, 
challenging our decision not to designate critical habitat for 
Deinandra conjugens (California Native Plant Society; et al. v. 
Babbitt, et al., 99CV1454 L (S.D.Cal.). On December 21, 2000, we 
entered into a stipulated settlement agreement with the plaintiffs 
under which we agreed to reevaluate the prudency determination for 
Deinandra conjugens by May 30, 2001. If we determined that critical 
habitat was prudent, we were to publish a proposed rule to designate 
critical habitat by June 5, 2000, with a final determination to be 
completed by May 30, 2002. On June 1, 2001, we determined that 
designation of critical habitat was prudent, and on June 13, 2001, we 
published in the Federal Register a proposed rule to designate 
approximately 2,685 ha (6,630 ac) of land as critical habitat for 
Deinandra conjugens (66 FR 32052). We requested a 6-month extension 
(until November 30, 2002) to complete the final designation to allow us 
adequate time to complete an economic analysis, obtain public comment 
on the economic analysis, and complete the final designation. This 
extension was agreed to by the plaintiffs and approved by the court on 
June 2, 2002. On July 10, 2002, we published a notice reopening the 
public comment period on the proposed rule for an additional 30 days 
and announcing the availability of the draft economic analysis (67 FR 
45696). This final critical habitat designation is consistent with the 
settlement agreement.

Summary of Comments and Recommendations

    In the June 13, 2001, proposed critical habitat designation (66 FR 
32052), we requested all interested parties to submit comments on the 
specifics of the proposal including information related to biological 
justification, policy, economics, and proposed critical habitat 
boundaries. The initial 60-day comment period closed on August 13, 
2001. The comment period was reopened from July 10, 2002, to August 9, 
2002 (67 FR 45969), to allow for additional comments on the proposed 
designation, and comments on the draft economic analysis of the 
proposed critical habitat.
    We contacted all appropriate State and Federal agencies, county 
governments, elected officials, and other interested parties and 
invited them to comment. In addition, on June 13, 2001, we invited 
public comment through the publication of a legal notice in the San 
Diego Union-Tribune newspaper in southern California. We provided 
notification of the draft economic analysis to all interested parties. 
This was accomplished through telephone calls, letters, and news 
releases faxed and/or mailed to affected elected officials, media 
outlets, local jurisdictions, and interest groups. We also posted the 
proposed rule and draft economic analysis and associated material on 
our Carlsbad Fish and Wildlife Office internet site following their 
release on June 13, 2001, and July 10, 2002, respectively.
    We received a total of 11 comment letters, from 8 separate parties 
during the two public comment periods. Comments were received from 
Federal and local agencies, and private organizations and individuals. 
No response was received from State agencies. Of these 11 comment 
letters, 4 were in favor of the designation, and 7 against it. We 
reviewed all comments received for substantive issues and comments, and 
new information regarding Deinandra conjugens. Similar comments were 
grouped into three general issues relating specifically to the proposed 
critical habitat determination

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and draft economic analysis on the proposed determination.

Peer Review

    We requested four biologists, who have knowledge of Deinandra 
conjugens, to provide peer review of the proposed designation of 
critical habitat for Deinandra conjugens. Two of the four peer 
reviewers submitted comments on the proposed designation. Both 
reviewers strongly endorsed the proposal, citing the importance of 
genetic diversity to the survival of Deinandra conjugens. One reviewer 
supported our inclusion of living seed banks, in areas where plants are 
not evident every year, and concurred that we fully considered in the 
proposal the importance of genetic diversity found in major and minor 
populations.
    Comments were either incorporated directly into the final rule or 
final addendum to the economic analysis or addressed in the following 
summary.

Issue 1: Biological Justification and Methodology

    Comment 1: One commenter expressed concern over eliminating areas 
with negative survey results from analysis where there may be primary 
constituent elements and thereby eliminating them from potential 
inclusion in critical habitat.
    Our Response: The definition of critical habitat in section 3(5)(A) 
of the Act includes ``(i) specific areas within the geographic area 
occupied by a species, at the time it is listed in accordance with the 
Act, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographic area occupied by a species at the time it 
is listed, upon a determination that such areas are essential for the 
conservation of the species.'' The term ``conservation,'' as defined in 
section 3(3) of the Act, means ``to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary'' (i.e., the species is recovered 
and removed from the List of Endangered and Threatened Species).
    As we discussed in our proposed critical habitat for the Deinandra 
conjugens, we identified those areas that currently contain populations 
or provide habitat components essential to the conservation of 
Deinandra conjugens. We excluded some areas where Deinandra conjugens 
has not been observed historically or recently because we cannot 
document that these areas are essential for the conservation of the 
species. However, we proposed for designation those areas that we 
believe to be essential, that possess core populations, and have unique 
ecological characteristics.
    Comment 2: One commenter expressed concern that the most current 
and therefore, the best scientific data available for the Rolling Hills 
Ranch project was not used. The commenter further suggests that the 
proposed rule underestimates the number of Deinandra conjugens 
individuals located on Rolling Hills Ranch, specifically, that 2000 
survey data submitted to the Service in April and July of 2001 should 
be used to redefine the critical habitat boundaries at Rolling Hills 
Ranch.
    Our Response: As discussed in the proposed rule, we did rely on the 
most recent data from the 2000 survey season at Rolling Hills Ranch to 
develop the Unit 1 boundaries of proposed critical habitat for 
Deinandra conjugens. The subject 2000 survey data was provided to the 
Service in April 2001, prior to the proposal. This data for the most 
part, corroborated decisions made during the development of the 
proposed critical habitat rule, and identified new areas of occupancy 
at Rolling Hills Ranch. Some of these areas within the proposed 
critical habitat, in which Deinandra conjugens was documented for the 
first time in 2000, have not been included in the final designation for 
reasons discussed in this rulemaking. The occurrence data and 
supporting documentation used in the rulemaking are available for 
inspection at the Carlsbad Fish and Wildlife Office by appointment 
(please see ADDRESSES section of this rule).
    Comment 3: One commenter questioned the biological justification 
for proposing critical habitat for Deinandra conjugens using a 
landscape-scale approach when they believed that more precise 
information is available for use by the Service.
    Our Response: We recognize that not every parcel of land within the 
external boundaries of the critical habitat designation will contain 
the habitat components essential to the conservation of Deinandra 
conjugens. In the absence of more detailed map information during the 
preparation of the proposed and final designations, we used a 100-m UTM 
grid and hardline reserve boundaries to delineate critical habitat.
    In developing the proposed rule and this final designation, we made 
an effort to minimize the inclusion of areas that do not contain the 
primary constituent elements for Deinandra conjugens. However, due to 
our mapping scale, some areas not essential to the conservation of 
Deinandra conjugens are included within the boundaries of proposed and 
final critical habitat. These areas, such as existing housing 
developments, roads, or other developed lands do not provide habitat 
for Deinandra conjugens. Because they do not contain one or more of the 
primary constituent elements for the species, Federal actions limited 
to those areas will not trigger a section 7 consultation of the Act, 
unless they affect the species or primary constituent elements in 
adjacent critical habitat.
    Comment 4: One commenter expressed concern that the proposed 
critical habitat does not encompass all areas needed to provide for 
genetic exchange between occurrences of Deinandra conjugens. For 
instance, Map Units 2 and 3 result in genetically isolated areas of 
critical habitat; pollinators and seed dispersers would not be capable 
of maintaining genetic exchange among these and other critical habitat 
areas. Also, Unit 2F, 2G, and 2H, and Unit 3A should be one 
interconnected unit; there is no scientific justification for 
segregating these areas into separate polygons.
    Our Response: In developing the proposed critical habitat, we 
evaluated those areas essential to the conservation of Deinandra 
conjugens and that are covered by a legally operative Habitat 
Conservation Plan (HCP). Those areas believed to be biologically 
essential, but already covered by a legally operative HCP, were 
excluded from this designation pursuant to section 4(b)(2) of the Act. 
Consequently, those areas within the subject critical habitat units 
containing essential Deinandra conjugens habitat within the San Diego 
County Subarea Plan of the San Diego County Multiple Species 
Conservation Plan (MSCP) are excluded. These exclusions create the 
appearance of habitat gaps that could limit genetic exchange. Though 
some of these gap areas do not contain primary constituent elements, 
most gap areas include lands conserved under existing HCPs. After 
evaluating the relative locations of populations, and evaluating their 
genetic exchange potential, we only designated areas determined to be 
essential that require special management. Because areas conserved in 
reserves under existing HCPs receive special management pursuant to 
those plans, they were not included in proposed or final critical 
habitat.

[[Page 76034]]

Issue 2: Policy and Regulations

    Comment 5: One commenter suggested that designating critical 
habitat for Deinandra conjugens on San Miguel Ranch project lands that 
will become part of the San Diego National Wildlife Refuge (SDNWR) is 
not adequate to provide the necessary and appropriate levels of 
assurance to San Miguel Ranch. The commenter explained that San Miguel 
Ranch, as a third party beneficiary to the MSCP Implementing Agreement, 
is covered by an existing legally operative HCP that addresses 
Deinandra conjugens. Finally, the commenter suggests that, due to the 
conservation protections and management measures assured for Deinandra 
conjugens through the SDNWR Annexation Agreement, the benefits of 
excluding San Miguel Ranch outweigh the benefits of including of San 
Miguel Ranch in the designation.
    Our Response: Pursuant to section 4(b)(2) of the Act, we may 
exclude any area from designated critical habitat if we believe that 
the benefits of excluding such lands outweigh the benefits of including 
those lands in critical habitat, providing that the exclusion would not 
result in the extinction of the species. We have generally excluded 
from critical habitat areas within legally operative HCPs that 
``cover'' the subject species by protecting, and providing management 
for, the essential habitat of the species within the plan area. We have 
used the provisions of section 4(b)(2) of the Act for the exclusion of 
lands covered by approved HCPs, because we believe that the benefits of 
excluding them outweigh the benefits of including them.
    Prior to annexation by the City of Chula Vista, the San Miguel 
Ranch project was covered under the County of San Diego's approved and 
legally operative Subarea HCP. In 2000, that portion of the County of 
San Diego's incidental take permit that covers San Miguel Ranch was 
transferred to the City of Chula Vista. Under the County of San Diego 
Subarea Plan Implementing Agreement, the County and third party 
beneficiaries, as that term is defined in the Implementing Agreement, 
are assured that if the critical habitat is designated, they will not 
be required to provide additional mitigation beyond that imposed on 
their project in accordance with the Subarea Plan without their 
consent. Those assurances continue to extend to San Miguel Ranch, to 
the extent it maintains third party beneficiary status, with the 
transfer of that portion of the County of San Diego's incidental take 
permit that covers San Miguel Ranch to the City of Chula Vista in year 
2000. The assurance is not affected or diminished by the designation.
    Under the Annexation Agreement, Trimark (the project proponent) has 
limited rights to encroach on certain SDNWR lands and the right to 
request an encroachment easement on other SDNWR lands. If the Service 
approves such encroachment, Trimark is required to provide mitigation 
as described in the Annexation Agreement. The inclusion of SDNWR lands 
in critical habitat does not conflict with the Annexation Agreement or 
interfere with any assurances provided to the San Miguel Ranch project 
under the transferred County permit. While San Miguel Ranch is covered 
by a legally operative HCP, those lands identified for transfer to the 
SDNWR under the Annexation Agreement will become federal lands 
conserved and managed by the Service in accordance with Annexation 
Agreement and the laws and regulations governing the National Wildlife 
Refuge System. Therefore the considerations underlying out exclusion of 
lands within approved HCPs under 4(b)(2) of the Act do not apply here. 
The Service has not completed a Comprehensive Management Plan and Step-
down Refuge Management Plan that adequately addresses management and 
monitoring of Deinandra conjugens. Thus the refuge lands, which we have 
determined are essential for the conservation of Deinandra conjugens, 
continue to require special management and thus meet the definition of 
critical habitat under section 3(5)(A) of the Act. Finally, because the 
SDNWR lands are federal lands, Section 7, which is the primary 
regulatory benefit of designating lands as critical habitat, will apply 
to activities carried out on the lands. We are not aware of any facts 
that indicate that the benefits of excluding the SDNWR lands from 
critical habitat under section 4(b)(2) of the Act would outweigh the 
benefits of including them as critical habitat.
    Comment 6: Several commenters suggested that the final critical 
habitat boundary should be consistent with boundaries of the reserves 
being established under the Chula Vista Subarea Plan of the San Diego 
County MSCP (e.g., Rolling Hills Ranch and Bella Lago).
    Our Response: As previously discussed in this rulemaking, we 
proposed to designate as critical habitat for Deinandra conjugens those 
lands believed to be essential to the conservation of the species. 
During the development of the proposal, we took into consideration the 
most current and best commercial and scientific data available. This 
information included the conservation management and protections 
afforded Deinandra conjugens under the San Diego County MSCP and the 
Chula Vista Subarea Plan currently being developed. The boundaries of 
our proposed critical habitat designation in some areas matched those 
of the proposed reserve for the Chula Vista Subarea Plan, because in 
our analysis of the subarea plan, we concluded that these boundaries 
incorporated areas essential to the conservation of Deinandra 
conjugens. For reasons discussed in the Critical Habitat section of 
this rulemaking, we reevaluated and ultimately modified the critical 
habitat boundaries at Rolling Hills Ranch and Bella Lago. The 
modifications reflect the results of additional analysis of Deinandra 
conjugens habitat within the projects' boundaries and discussions 
regarding conservation of essential habitat with the project proponents 
and the outcome of a Section 7 conference opinions on Bella Lago and 
Rolling Hills Ranch. The reserve boundaries for the Chula Vista subarea 
plan currently out for review, including Bella Lago and Rolling Hills 
Ranch, are consistent with this final rule.
    Comment 7: One commenter requested that we conduct the analysis 
necessary to conclude that the City of Chula Vista's proposed MSCP 
Subarea Plan should be excluded from the critical habitat designation 
pursuant to section 4(b)(2) of the Act. The commenter asserts that we 
should withdraw and revise the proposed critical habitat designation to 
include an analysis and finding that the benefits of excluding the 
City's plan outweigh the benefits of inclusion.
    Our Response: Section 4(b)(2) of the Act allows us to exclude from 
critical habitat designation areas where the benefits of exclusion 
outweigh the benefits of designation, provided the exclusion will not 
result in the extinction of the species. We believe that in most 
instances the benefits of excluding legally operative HCPs from 
critical habitat designations will outweigh the benefits of including 
them. Deinandra conjugens is a covered species in the proposed Chula 
Vista Subarea Plan; however, the Subarea Plan is not yet approved or 
legally operative. The plan has been released to the public for review 
and may be revised as a result of comments received by the public. The 
Service has not conducted a review of the plan under section 7 or 
section 10 of the Act to determine whether it meets the criteria for 
issuance of an incidental take permit. Nor has the Service completed

[[Page 76035]]

its review of the plan under NEPA. Exclusion of the plan area under 
section 4(b)(2) of the Act based on a proposed plan that may change and 
that has not been approved by the Service would be inappropriate.
    We anticipate that the Chula Vista Subarea Plan and other future 
HCPs in the range of Deinandra conjugens will include it as a covered 
species and provide for its long-term conservation. If the Chula Vista 
Subarea Plan or other HC056that address Deinandra conjugens as a 
covered species are ultimately approved and legally operative, we may 
reassess the critical habitat boundaries in light of the approved HCP.
    Comment 8: One commenter expressed concern that we did not 
sufficiently support our decision to reverse our determination that 
designation of critical habitat for Deinandra conjugens is not 
``prudent.'' Finally, the commenter requests that we withdraw and 
reconsider our determination that designation of critical habitat is 
now prudent.
    Our Response: In our final rule listing Deinandra (= Hemizonia) 
conjugens as threatened under the Act (63 FR 549384), we found that 
designation of critical habitat was not prudent because it occurs 
primarily on private lands with little or no Federal involvement. As we 
discuss in the Previous Federal Action section of this final rule, we 
were challenged on our original ``not prudent'' finding. On December 
21, 2000, we agreed to a stipulated settlement that required us to 
publish a proposal to withdraw the existing ``not prudent'' critical 
habitat determination and make a new prudency determination. In the 
Prudency Determination section of the proposed rule, we detailed our 
reasoning for determining that critical habitat is, in fact, prudent 
for Deinandra conjugens. In general, we concluded that there may be 
some additional benefits to designating critical habitat, including 
instances where section 7 consultation would be triggered only if 
critical habitat is designated, educational or informational benefits 
to designating critical habitat, and significant occurrences of 
Deinandra conjugens that have come under Federal lands jurisdiction 
since the time of listing. The publication of our June 13, 2001, 
proposal and this final rule are in compliance with that determination 
and the stipulated settlement agreement and subsequent court orders.
    Comment 9: One commenter suggested that lands covered by the MSCP 
(or other HCPs) do not provide adequate protection for long-term 
conservation of Deinandra conjugens; as such, the small disjunct 
critical habitat areas as currently proposed are inadequate to support 
the long-term survival of Deinandra conjugens.
    Our Response: Deinaindra conjugens is a covered species under the 
City and County of San Diego subarea plans of the MSCP. As discussed 
later in this rule, Section 10(a)(1)(B) of the Act authorizes the 
Service to issue to non-Federal entities a permit for the take of 
endangered and threatened animal species incidental to otherwise lawful 
activities. An incidental take permit must be supported by an HCP that 
identifies conservation measures that minimize and mitigate the impacts 
of take of covered animal species to the maximum extent practicable and 
that we believe necessary to reduce project-related effects to the 
extent that they do not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild. Where an HCP includes 
sufficient conservation measures to preclude jeopardy for listed plant 
species, we will also include such species on the incidental take 
permit in recognition of those conservation benefits even though take 
of listed plant species is not prohibited under Section 9 of the Act.
    In the proposed rule we discussed at length the relative benefits 
of including or excluding from critical habitat lands covered by a 
legally operative HCP that includes Deinandra conjugens as a covered 
species (see 66 FR 32060-61). In particular we noted that the benefits 
of including HCP lands in critical habitat are normally small to non-
existent because approved HCPs are already designed to ensure the long-
term survival of covered species. HCPs typically protect essential 
habitat in reserves that are managed to protect, restore, and enhance 
their value as habitat for the species. Moreover, before approving an 
HCP or issuing an incidental take permit, we complete a section 7 of 
the Act consultation on the proposed permit and must conclude that the 
permit will not result in jeopardy to any covered species in the plan 
area.
    The reserves established under the approved MSCP subarea plans 
include essential populations of Deinandra. Those areas we are 
designating as critical habitat include essential habitat for Deinandra 
conjugens within HCPs that are currently under development, but have 
not yet been approved, and other essential habitat outside of approved 
HCPs. The critical habitat designation provides connectivity among 
Deinandra conjugens populations protected within reserves established 
under approved subarea plans.
    Comment 10: One commenter concluded that all lands containing the 
species' primary constituent elements are essential to the conservation 
of the species.
    Our Response: By definition (see sections 3(5)(A) and 3(5)(C) of 
the Act), essential critical habitat generally describes a subset of 
the area potentially containing primary constituent elements for a 
species. As discussed in the methods section of the proposed and this 
final rule, to determine areas essential for the conservation of 
Deinandra conjugens, we used the best scientific and commercial data 
available pertaining to known habitat requirements of the species. 
Areas designated as critical habitat for Deinandra conjugens are within 
the current known range of the species and contain one or more primary 
constituent elements essential for the conservation of the species. In 
our proposed and final designation of critical habitat, we selected 
essential habitat areas based on occurrence data, soils, vegetation, 
elevation, topography, and current land uses. During this analysis, it 
was determined that some areas containing one or more primary 
constituent elements did not represent suitable habitat or were 
otherwise not essential for the conservation of the species.

Issue 3: Economic Issues

    Comment 11: One commenter expressed concern that the deferral of 
economic and other relevant impacts in preparing the proposed rule 
violates the requirements of the Act. The commenter acknowledges our 
position from previous critical habitat designations pursuant to the 
specific implementing regulations (50 CFR 424.19) that it is not 
required by law to conduct an economic analysis at the time critical 
habitat is initially proposed. The commenter asserts, however, that the 
implementing regulations contradict the Act (16 U.S.C. 1533(b)(2)) 
(i.e., section 4(b)(2) of the Act), whereas the statute calls for 
designation of critical habitat after taking into consideration 
economic impacts of specifying any particular area as critical habitat. 
The commenter suggests that we ignored economic effects and other 
related effects until after critical habitat boundaries are 
established. Conversely, the commenter asks how the proposed rule text 
can suggest that ``the designation of critical habitat is not likely to 
result in a significant regulatory burden above that already in place 
due to the presence of listed species,'' if an economic analysis has 
not yet been conducted.

[[Page 76036]]

    Our Response: Pursuant to section 4(b)(2) of the Act, we designate 
critical habitat and make revisions thereto on the basis of the best 
available scientific data and after taking into consideration economic 
impacts and other relevant impacts associated with the designation. We 
published our proposed designation in the Federal Register on June 13, 
2001 (66 FR 32052). At that time, our Division of Economics and their 
consultants, Industrial Economics, Inc., initiated the draft economic 
analysis. The draft economic analysis was made available for public 
comment and review beginning on July 10, 2002 (67 FR 45696). Following 
a 30-day public comment period on the proposal and draft economic 
analysis, a final addendum to the economic analysis was completed which 
takes into consideration public comments. Both the draft economic 
analysis and the addendum were used in the development of this final 
designation of critical habitat for Deinandra conjugens. Please refer 
to the Economic Analysis section of this final rule for a more detailed 
discussion of these documents. Therefore, our designation of critical 
habitat does take into consideration economic and other impacts 
considered during the rulemaking process.
    As stated earlier in this final rule, Federal agencies already 
consult with us on activities in areas currently occupied by Deinandra 
conjugens, or if the species may be affected by the action, to ensure 
that their actions do not jeopardize the continued existence of the 
species. Since Deinandra conjugens critical habitat is considered 
occupied by either standing plants or seed bank, and we already consult 
on other listed species, including the coastal California gnatcatcher 
(Polioptila californica californica) and the Quino checkerspot 
butterfly (Euphydryas editha quino), that have designated critical 
habitats that overlap with Deinandra conjugens, we do not anticipate a 
significant additional regulatory burden will result from the 
designation of critical habitat for Deinandra conjugens. We made our 
anticipatory statement that the designation of critical habitat was not 
likely to result in a significantly higher regulatory burden based on 
the information available at the time. The economic analysis has 
demonstrated that our initial assumption was correct.
    Comment 12: One commenter suggested that the Service failed to take 
into account the cumulative economic impacts of all the existing and 
proposed critical habitat designations. The commenter believes that the 
Act and relevant Federal cases (New Mexico Cattle Growers v. U.S. Fish 
and Wildlife Service, 248 F.3d 1277, 1281-1285) require this type of 
analysis and requests that the Service explain the factual and legal 
basis for its decision that other pending and final critical habitat 
designations can be considered separately.
    Our Response: The commenter appears to be using the term 
``cumulative impacts'' in the context of the National Environmental 
Policy Act (NEPA), which does not apply to this rulemaking. See the 
National Environmental Policy Act section of this rule. We are required 
to consider only the effect of the proposed government action, which in 
this case is the designation of critical habitat for Deinandra 
conjugens. The appropriate baseline for use in this analysis is the 
regulatory environment without this regulation. While, consistent with 
New Mexico Cattlegrowers v. U.S. Fish and Wildlife Service, we 
considered the costs and benefits of both the listing of Deinandra 
conjugens and the designation of critical habitat for this species in 
establishing an upward estimate of economic effects, and then attempted 
to identify and measure the additional costs and benefits associated 
with this designation of critical habitat, when critical habitat for 
other species has already been designated, it is properly considered 
part of the baseline for this analysis. Proposed and future critical 
habitat designations for other species in the area will be part of 
separate rulemakings, and consequently, their economic effects will be 
considered separately.
    Comment 13: One commenter suggested that the critical habitat 
designation triggers ``No Surprises'' regulations due to Deinandra 
conjugens'' coverage in the MSCP, and that we should pay all the costs 
associated with the designation.
    Our Response: Permittees and third party beneficiaries, as the term 
is defined under various MSCP Subarea Plan Implementing Agreements, are 
assured that in the event critical habitat is designated for a covered 
species, such as Deinandra conjugens, within the boundaries of approved 
subarea plans, they will not be required to provide additional 
mitigation consisting of money, land or restrictions on land, beyond 
the level of mitigation imposed on their projects in accordance with 
the subarea plans without their consent. The designation of critical 
habitat for Deinandra conjugens does not undermine, compromise or 
affect that assurance or trigger the No Surprises regulation.
    Comment 14: One commenter expressed concern that the critical 
habitat methodology fails to meet the standards of the Act as held by 
the 10th Circuit Court [New Mexico Cattle Growers Ass'n v. U.S.F.W.S., 
248 F.3rd 1277 (10th Cir. 2001)] in that the economic analysis cannot 
be separated from the action listing the species.
    Our Response: In New Mexico Cattle Growers Ass'n v. U.S.F.W.S., 248 
F.3d 1277 (10th Cir. 2001) the 10th Circuit recently held that the 
baseline approach to economic analysis of critical habitat designations 
that was used by the Service for the southwestern willow flycatcher 
designation was ``not in accord with the language or intent of the 
ESA.'' In particular, the court was concerned that the Service had 
failed to analyze any economic impact that would result from the 
designation, because it took the position in the economic analysis that 
there was no economic impact from critical habitat that was incremental 
to, rather than merely co-extensive with, the economic impact of 
listing the species. The Service had therefore assigned all of the 
possible impacts of designation to the listing of the species, without 
acknowledging any uncertainty in this conclusion or considering such 
potential impacts as transaction costs, reinitiations, or indirect 
costs. The court rejected the baseline approach incorporated in that 
designation, concluding that, by obviating the need to perform any 
analysis of economic impacts, such an approach rendered the economic 
analysis requirement meaningless.
    In this analysis, the Service addresses the 10th Circuit's concern 
that we give meaning to the ESA's requirement of considering the 
economic impacts of designation by acknowledging the uncertainty of 
assigning certain post-designation economic impacts (particularly 
section 7 consultations) as having resulted from either the listing or 
the designation. We also understand that the public wants to know more 
about the kinds of costs consultations impose and frequently believe 
that designation could require additional project modifications.
    Therefore, this analysis incorporates two baselines. One addresses 
the impacts of critical habitat designation that may be attributable 
co-extensively to the listing of the species. Because of the potential 
uncertainty about the benefits and economic costs resulting from 
critical habitat designations, we believe it is reasonable to estimate 
the upper bounds of the cost of project modifications based on the 
benefits and economic costs of project modifications that would be 
required due to consultation under the jeopardy

[[Page 76037]]

standard. It is important to note that the inclusion of impacts 
attributable co-extensively to the listing does not convert the 
economic analysis into a tool to be considered in the context of a 
listing decision. As the court reaffirmed in the southwestern willow 
flycatcher decision, ``the ESA clearly bars economic considerations 
from having a seat at the table when the listing determination is being 
made.''
    The other baseline, the lower boundary baseline, will be a more 
traditional rulemaking baseline. It will attempt to provide the 
Service's best analysis of which of the effects of future consultations 
actually result from the regulatory action under review--i.e., the 
critical habitat designation. These costs will in most cases be the 
costs of additional consultations, reinitiated consultations, and 
additional project modifications that would not have been required 
under the jeopardy standard alone as well as costs resulting from 
uncertainty and perception impacts on markets. The final addendum to 
this analysis provides further information concerning the baseline and 
potential incremental effects of the designation of critical habitat 
for Deinandra conjugens.
    Comment 15: One commenter suggested that the economic analysis 
cannot rely on overlap between Federal laws and State and local 
regulations. The analysis of State-induced impacts is inappropriate 
since they are independent of Federal action, and could be nullified by 
actions of the State legislature or voters.
    Our Response: In the case of the MSCP, an analysis of State-induced 
impacts is appropriate since the NCCP program is directly tied to the 
HCP through the terms of the MSCP Implementing Agreement. Though 
economic impacts associated with State and local actions were addressed 
in the draft economic analysis, the document clearly states that all 
impacts are assumed to be solely attributable to the Federal listing. 
Please refer to the draft economic analysis for further discussion of 
this issue.
    Comment 16: One commenter expressed concern that the preface of the 
economic analysis acknowledges that the public believes that critical 
habitat designation could require additional project modifications, 
while the document later suggests in several instances that further 
modifications are not expected. The commenter suggests that the 
economic analysis provide further defense of this position and discuss 
specific regulation and policy in making the case.
    Our Response: The statement in the preface of the economic analysis 
addresses public perception (also see the Stigma Effects section of the 
economic analysis) that critical habitat designation will present 
additional regulatory burden. The economic analysis effectively 
addresses these concerns by addressing the likelihood of an economic 
effect from the designation above and beyond the listing. The analysis 
correctly asserts that Deinandra conjugens critical habitat is occupied 
by either standing plants or seed bank, and correctly concludes that no 
additional project modifications are likely from the designation that 
would not have already been recommended to address the listed species 
and its habitat.
    Comment 17: One commenter indicated that Dudleya variegata 
(variegated Dudleya) is not a State-listed species, as stated in the 
draft economic analysis. The commenter suggested that this statement 
leads to significant adjustments in the cost impacts within the 
economic analysis that should be corrected.
    Our Response: Dudleya variegata is not a State-listed species. The 
species status has been addressed in the final addendum of the economic 
analysis. However, in this case, Dudleya variegata is a covered species 
under the MSCP Plan, and as such is treated similarly to both federally 
and State-listed species under the MSCP Plan. Therefore, adjustments in 
costs were correctly made to recognize the cost of measures intended to 
mitigate the effects of covered activities on Dudleya variegata under 
the MSCP Plan.
    Comment 18: One commenter suggests that our ``additional benefits'' 
and ``education/informational benefits'' determinations were not 
substantiated, are arbitrary and capricious, and are based on 
litigation.
    Our Response: In the Prudency Determination section of the proposed 
rule, we detailed our reasoning for determining that critical habitat 
is, in fact, prudent for Deinandra conjugens. In general, we concluded 
that there may be some additional benefits to designating critical 
habitat, including instances where section 7 consultation would be 
triggered only if critical habitat is designated, educational or 
informational benefits to designating critical habitat, and significant 
occurrences of Deinandra conjugens on Federal lands recorded since the 
time of listing.
    Although we cannot substantiate in the present something that may 
occur in the future, critical habitat may provide some educational 
benefit by formally identifying areas within the range of Deinandra 
conjugens essential for the conservation of the species. The public and 
the Service would, therefore, benefit from the designation while 
planning any future recovery efforts for the species. Furthermore, 
three significant occurrences of Deinandra conjugens now occur on 
Federal lands, which were not known at the time of listing, 
substantiating the need to designate critical habitat on those lands. 
The benefit of the designation, in this case, is the added protections 
afforded by the relatively higher threshold of responsibility required 
of Federal agencies under section 7 the Act.
    While we have acknowledged the potential for society to experience 
such benefits in our economic analyses for critical habitat 
rulemakings, our ability to actually measure these benefits in any 
meaningful way is difficult and imprecise at best. However, we will 
continue to explore ways that will allow us to provide more 
quantitative descriptions of the potential benefits associated with a 
critical habitat designation.

Summary of Changes From the Proposed Rule

    In the development of our final designation of critical habitat for 
Deinandra conjugens, we considered new information provided to our 
office after the proposed designation was published. We made changes 
from our proposal based on a review of public comments received on the 
proposed designation and the draft economic analysis on the proposed 
designation and a re-evaluation of lands proposed as critical habitat. 
The refinements to the amount of land determined to be essential for 
Deinandra conjugens and incorporated into this final designation 
resulted in a net reduction of approximately 120 ha (300 ac) of lands. 
The primary changes for this final designation include the removal of 
120 ha (300 ac) of lands from the development areas of the Eastlake 
Woods, Bella Lago and Rolling Hills Ranch residential developments, 
Sweetwater County Park Summit Site, and Sweetwater Authority lands, 
because these lands were determined not to be essential for the 
conservation of Deinandra conjugens.
    In our proposed rule we identified certain lands within the 
proposed development projects of Bella Lago, Eastlake Woods, and 
Rolling Hills Ranch (all in the City of Chula Vista) that we believed 
contained primary constituent elements and standing plants or seed bank 
for Deinandra conjugens and included these as proposed critical 
habitat. Since the time of our proposal, we have reevaluated these 
areas and conclude that some of

[[Page 76038]]

these lands do not contain the primary constituent elements for 
Deinandra conjugens and standing plants or seed bank, and are not 
essential for the long-term conservation of this species.
    At the time of our proposed rule, rare plant surveys had not yet 
been completed on portions of the Bella Lago project site. 
Consequently, our boundaries for proposed critical habitat were based 
on general information concerning soils and vegetation. Surveys have 
since been completed and we have more current and definitive 
information relating to the location of Deinandra conjugens and the 
primary constituent elements essential to its conservation on the 
proposed project site. We have refined the boundaries of critical 
habitat in the southern portion of the project site to exclude 
approximately 5 ha (10 ac) that we now know do not contain the plant or 
its primary constituent elements. The remaining patches of land within 
the southern portion of the project site that contain occupied habitat 
and primary constituent elements are considered to be essential to the 
conservation of the species and are being designated as critical 
habitat.
    Approximately 20 ha (55 ac) of the Eastlake Woods project site have 
also been deleted from the final critical habitat rule. Following the 
publication of the proposed rule, we completed a consultation with 
regard to Dienandra conjugens (and a conference with respect its 
proposed critical habitat) pursuant to section 7 of the Act with the 
U.S. Army Corps of Engineers (Corps) for the Eastlake Woods project, a 
residential development (1-6-02-FW-1989.2) in which we closely examined 
and evaluated the tarplant and its habitat on the project site. Based 
on the more thorough review of proposed critical habitat under the 
section 7 consultation for the Eastlake Woods neighborhood project, 
most of the areas being excluded as critical habitat for Deinandra 
conjugens are not habitat for this species, do not contain any known 
occurrences for this plant based on two years of surveys during the 
flowering season, and do not contain the primary constituent elements 
for this plant because of the extensive history of agricultural use. As 
a result of the consultation and conference opinion, an area of 
approximately 5 ha (10 ac) that had been proposed as critical habitat 
has been preserved, is being restored, and will receive long-term 
monitoring and management. This area is being retained as critical 
habitat. As a result of the consultation, 5 ha (10 ac) (an area that 
contained approximately 2,160 individual Deinandra conjugens in 2001) 
will be preserved onsite. The preserved area has broader conservation 
value because it adjoins areas conserved under the San Diego MSCP and 
the proposed Chula Vista Subarea Plan. Within the preservation area, 
approximately 2 ha (5 ac) will be restored to support approximately 870 
plants. The entire area will be preserved and managed in perpetuity. 
These lands contain the plant and its primary constituent elements, are 
contiguous with critical habitat designated for the species on adjacent 
lands, and are considered to be essential to the conservation of the 
species. In our conference opinion we determined that development of 
the remaining 20 ha (55 acres) proposed as critical habitat for 
Dienandra conjugens would not result in adverse modification of this 
critical habitat unit. Approximately 20 ha (55 acres) were determined 
upon closer analysis not to be occupied by Dienandra conjugens nor 
contain primary constituent elements of its habitat. The inclusion of 
such areas in the proposed rule resulted from use of the 100-m UTM grid 
system which, as explained later in the rule, is not a fine enough 
scale to eliminate all areas that are not occupied or that do not 
contain primary constituent elements, and therefore do not meet the 
definition of critical habitat under 3(5)(A). Use of the 100-m grid 
resulted in the inclusion of lands under agricultural use for many 
years that were not known to be occupied by this species and that do 
not contain the primary constituent elements. Through the consultation 
and conference opinion we were able to identify these lands, and we 
concluded that development of the lands would not result in the adverse 
modification of proposed critical habitat. Thus, the areas excluded 
from critical habitat were not essential for the conservation for the 
species because the majority of these lands were not habitat for 
Deinandra conjugens, do not contain long-term conservation value, and/
or do not contain primary constituent elements. The approximately 1 ha 
(2 ac) of remaining lands within the Eastlake Woods project did contain 
Dienandra conjugens and primary constituent elements. However, because 
the distribution of Dienandra conjugens in those areas was limited and 
restricted by active agricultural activity, we concluded they were not 
necessary for the conservation of this species and development of the 
lands would not result in adverse modification of proposed critical 
habitat. Upon the completion of the Section 7 consultation and 
conference opinions, the project proponent graded the 20 ha (55 acres) 
described above in preparation for development.
    Portions of the Rolling Hills Ranch project site also have been 
excluded from final critical habitat. In April of 2001, prior to the 
publication of the proposed critical habitat rule, we were provided 
with current survey information for the Rolling Hills Ranch development 
project that indicated the presence of approximately 28,000 standing 
Deinandra conjugens plants scattered throughout the site. Following the 
publication of the proposed rule, we further evaluated this new 
occurrence information in the context of: (1) Other known occurrences 
throughout the range of the species; (2) the consultation on the 
Rolling Hills Ranch development project; and (3) the protections and 
conservation measures currently established in the approved San Diego 
MSCP and those measures proposed in the draft Chula Vista Subarea Plan 
for Deinandra conjugens.
    Following this evaluation, we concluded that approximately 85 ha 
(215 ac) within the Rolling Hills project site are not essential to the 
conservation of Deinandra conjugens. At the time of the proposed rule, 
we used the 100-m UTM grid to identify critical habitat on portions of 
Rolling Hills Ranch, which resulted in designation of some areas that 
are not occupied by the species or that do not contain primary 
constituent. For the final rule, we have used the approved boundaries 
specific to the Rolling Hills Ranch project, thereby eliminating some 
areas that do not contain the plants or primary constituent elements 
for the species.
    Furthermore, approximately 70 percent of the lands on Rolling Hills 
Ranch that have been deleted from the final rule on Rolling Hills Ranch 
are not known to contain standing occurrences of Deinandra conjugens. 
These lands may contain primary constituent elements and it is possible 
that they contain seed bank; however, the excluded areas are not known 
to support standing occurences of the species. Without better 
information that would substantiate the importance of these lands to 
the species, their conservation value cannot be determined. These lands 
are, therefore, not considered essential for the conservation of the 
species, and have been deleted from the final critical habitat rule.
    Approximately 30 percent of the lands deleted from the final rule 
are considered to be occupied. We recently completed a consultation 
pursuant to section 7 of the Act with the Corps (1-6-01-F-1071.4), 
following an agreement

[[Page 76039]]

reached among the Service, the California Department of Fish and Game, 
and the project proponent to modify the boundaries of proposed 
development, MSCP reserve, and MSCP Neutral areas on the project site. 
MSCP Neutral areas are those lands being conserved within the MSCP 
planning area, in this case by Rolling Hills Ranch, that are not 
covered lands under the MSCP. Pursuant to that agreement, project lands 
containing the most important occurrences of Deinandra conjugens and 
its primary constituent elements are designated as MSCP reserve and 
MSCP Neutral areas and will be protected, monitored, and managed for 
Deinandra conjugens. When identifying the areas set aside for 
conservation, we focused on conserving those occurrences that we 
believed to have the greatest chance of persistence within the project 
area. We concluded in our biological opinion that the loss of 
approximately 5 ha (10 ac) of occupied habitat would not result in the 
destruction or adverse modification of proposed critical habitat for 
the following reasons. First, the areas conserved would receive a 
higher level of management (e.g., invasive species control, monitoring 
and adaptive management of populations, etc.) compared to the no-
project scenario. Without the project, the site was being used for 
agriculture and grazing, activities that would not be subject to 
regulations under the Act because of the absence of a federal nexus. As 
a result, there was a higher chance that the plant occurrences onsite 
would be degraded. The higher level of management within the conserved 
lands would ensure the long-term viability of the population in the 
area, thereby reducing the extent of land necessary to provide for the 
conservation of the species onsite. Second, the preserve design for 
Rolling Hills Ranch compliments regional conservation for Deinandra 
conjugens under the MSCP. As a result of this regional conservation 
planning, lands essential to the conservation of this species are being 
conserved and managed or are targeted for conservation and management. 
Finally, from a regional perspective, protection of all occupied 
habitat on the Rolling Hills Ranch project is not essential for the 
conservation of Deinandra conjugens; the limited loss of occupied 
habitat for this species at Rolling Hills Ranch will not preclude the 
recovery of this plant. We were able to utilize digital map data 
provided by Rolling Hills Ranch to refine critical habitat on the 
project site based on the modified boundary agreement. These lands to 
be protected on site contain the plant and its primary constituent 
elements, are contiguous with critical habitat designated for the 
species on adjacent lands, and are essential to the conservation of the 
species.
    In addition, we refined the critical habitat boundaries for the 
final rule to exclude 5 ha (10 ac) of developed areas within the 
Sweetwater County Park Summit Site, and 5 ha (10 ac) of developed areas 
within Sweetwater Authority lands. These lands do not contain primary 
constituent elements for Deinandra conjugens, and are, therefore, not 
considered essential to the conservation of the species.
    Also, the proposed rule indicated that 27,000 standing plants were 
located on Rolling Hills Ranch in year 2000. This number has been 
changed to 28,000 to correct a rounding error. Finally, the proposed 
rule indicated that critical habitat unit 2 encompasses approximately 
521 acres, which we rounded to 520 acres for the final rule. No change 
in actual acreage for unit 2 was made in the final rule.
    Finally, minor changes to the definition of primary constituent 
elements for Deinandra conjugens were also made to eliminate 
redundancy.

Critical Habitat

    Critical habitat is defined in section 3 of the Endangered Species 
Act (Act), as amended, as--(i) the specific areas within the geographic 
area occupied by a species, at the time it is listed in accordance with 
the Act, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographic area occupied by a species at the time it 
is listed, upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures that are necessary to bring an endangered 
species or a threatened species to the point at which listing under the 
Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
habitat with regard to actions carried out, funded, permitted, or 
authorized by a Federal agency. Section 7 of the Act also requires 
conference opinions on Federal actions that are likely to result in the 
destruction or adverse modification of proposed critical habitat. Aside 
from the added protection that may be provided under section 7, 
including adverse modification of habitat, the Act does not provide 
other forms of regulatory protection to lands designated as critical 
habitat. Further, consultation under section 7 of the Act does apply to 
activities on private or other non-Federal lands whenever a Federal 
nexus occurs.
    In order to be included in a critical habitat designation, the 
habitat must be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known and using 
the best scientific and commercial data available, habitat areas that 
are essential to the conservation of the species. Our regulations (50 
CFR 424.12(e)) also state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by a species only when a designation limited to its present range would 
be inadequate to ensure the conservation of the species.''
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude areas from critical 
habitat designation when the benefits of exclusion outweigh the 
benefits of including the areas within critical habitat, provided the 
exclusion will not result in extinction of the species.
    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. Within the 
geographic area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), that provide essential life-cycle needs of the species.
    Our 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 us, 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.

[[Page 76040]]

Additional information may be obtained from a recovery plan, articles 
in peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, biological 
assessments, unpublished materials, and expert opinion.
    Section 4 of the Act requires that we designate critical habitat 
based on what we know at the time of the 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, all 
should understand that critical habitat designations do not signal that 
habitat outside the designation is unimportant or may not be required 
for recovery. Areas outside the critical habitat designation will 
continue to be subject to conservation actions that may be implemented 
under section 7(a)(1) and to the regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the applicable prohibitions of 
section 9 of the Act, 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 should not control the 
direction and substance of future recovery plans, habitat conservation 
plans, or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 
outcome.

Methods

    In determining areas that are essential to conserve Deinandra 
conjugens, we used the best scientific and commercial data available. 
We reviewed available information that pertains to the habitat 
requirements of this species, including data from research and survey 
observations published in peer-reviewed articles; regional GIS 
coverages (e.g., soils, known locations, vegetation, land ownership, 
and HCP boundaries); information from herbarium collections such as 
those from SDNHM; data from the CNDDB (2002); data collected from 
project-specific and other miscellaneous reports submitted to us; 
additional data from the San Diego County Multiple Species Conservation 
Program (MSCP), such as information from Subarea or draft Subarea HCPs 
(Subarea Plans) (e.g., City of San Diego, County of San Diego, City of 
La Mesa, and City of Chula Vista); information in the San Diego Gas and 
Electric HCP (1995); and a habitat evaluation model for the Otay Mesa 
Generating Project.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we must consider those physical and biological features 
(primary constituent elements) that are essential to the conservation 
of the species, and that may require special management considerations 
or protection. These include, but are not limited to: space for 
individual and population growth, and for normal behavior; food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for pollination and germination 
or seed dispersal; and habitats that are protected from disturbance or 
are representative of the historical geographical and ecological 
distributions of a species. All areas designated as critical habitat 
for Deinandra conjugens are within the currently known range and 
contain one or more of these physical or biological features (primary 
constituent elements) essential for the conservation of the species.
    The designated critical habitat is designed to provide sufficient 
habitat to maintain self-sustaining populations of Deinandra conjugens 
throughout its range, and provide those habitat components essential 
for the conservation of the species. Habitat components that are 
essential for Deinandra conjugens are found in vegetation communities 
classified as, but not limited to, grasslands, coastal sage scrub, or 
maritime succulent scrub in southwestern San Diego County, California. 
These habitat components provide for: (1) Individual and population 
growth, including habitat for germination, pollination, reproduction, 
pollen and seed dispersal, and seed dormancy; (2) areas that allow gene 
flow and provide connectivity or linkage between or within larger 
populations, including open spaces and disturbed areas that in some 
instances may also contain introduced plant species; (3) areas that 
provide basic requirements for growth such as water, light, and 
minerals; and (4) areas that support pollinators and seed dispersal 
organisms.
    The long-term survival and conservation of Deinandra conjugens is 
dependent upon a number of factors, including the protection and 
management of existing populations, the protection of inter-population 
occurrences, the maintenance of normal ecological functions within 
populations, the preservation of the connectivity between populations 
to allow natural gene flow through pollinator activity and seed 
dispersal mechanisms, the protection and maintenance of habitat for the 
survival of pollinators and seed dispersal agents, and the preservation 
of suitable micro-habitat that could be recolonized and allow a 
population to survive a catastrophic event. The small, fragmented range 
of this species, coupled with its breeding system (i.e., its self-
incompatibility and annual habit), makes it especially vulnerable to 
natural and anthropogenic effects including disturbance from human and 
agricultural activities; spread of non-native species; and nearby use 
of herbicides, pesticides, and other contaminants (63 FR 54938; B. 
Baldwin, pers. comm., 2001; S. McMillan, pers. comm., 2001).
    Based on our current knowledge of this species, the primary 
constituent elements of Deinandra conjugens critical habitat consist 
of, but are not limited to, soils with a high clay content (generally 
greater than 25 percent) (or clay intrusions or lenses) that are 
associated with grasslands, open coastal sage scrub, or maritime 
succulent scrub communities between 25 m (80 ft) and 300 m (1000 ft) 
elevation (Bauder et al. 2002, CNDDB 2002). These plant communities 
contain natural openings that provide habitat for the Deinandra 
conjugens life-cycle, and pollen and seed dispersal agents (M. Elvin, 
pers. obs., 2001).

Criteria Used To Identify Critical Habitat

    In our final delineation of critical habitat for Deinandra 
conjugens, we selected areas essential to the conservation of the 
species from within its known historical range. We used data from 
documented occurrences, various GIS layers, and recent aerial 
photography. These data include Deinandra conjugens locations, soils, 
vegetation, elevation, topography, and current land uses.
    We began by using the GIS layers to identify areas of suitable 
habitat within the geographic distribution of this species. We selected 
areas with appropriate soils and vegetation that are limited to the 
elevational range of the species within its known distribution. We then 
selected soils and plant communities that overlapped known Deinandra 
conjugens occurrences. Areas occupied by Deinandra conjugens cannot be 
determined accurately either

[[Page 76041]]

by cursory field examination or by the limited data from historical 
observations. The entire population of an annual plant (which includes 
all of the seeds in the subterranean seed bank and the observable 
plants above ground) is not visible at any one time. The entire seed 
bank does not germinate at once, and the visible population of plants 
rarely reflects the size or distribution of the seed bank. There may be 
no standing plants in an area occupied by the species for a year or 
even a span of several years, until local climatic and other conditions 
are suitable for seed germination. The size and distribution of the 
standing plant population may move, shrink, or grow as conditions 
change, without a similar change in the distribution of the seed bank. 
Consequently, the results of Deinandra conjugens population mapping 
efforts have been variable, depending both on the scale of the mapping 
and the year in which the surveys were conducted (documented examples 
include estimated records of standing plants ranging from one to more 
than 5,400 plants for one population (CNDDB 2002; City of San Diego, in 
litt. 1999), from about 100 to 50,000 in another (CNDDB 2002), and from 
280,000 to 1.9 million plants in another population (CNDDB 2002)). In 
the case of the related Holocarpha macradenia (Santa Cruz tarplant), 
seemingly unoccupied habitat has been determined to contain a viable 
seed bank where standing plants have not been seen in over 7 years 
(Bainbridge, in litt. 1999). By overlapping known occurences of 
Deinandra conjugens with appropriate soil types, elevations, and other 
habitat characteristics, we have included what we believe is the likely 
distribution of the seed bank around these occurences of Deinandra 
conjugens.
    We then eliminated areas that did not contain both appropriate 
soils and appropriate vegetation such as, but not limited to, currently 
used agriculture fields, housing developments, and open water. Next, we 
eliminated all areas above 300 m (1,000 ft) elevation, the upper limit 
of the known distribution of Deinandra conjugens, based on herbarium 
records. We also compared the remaining areas of suitable Deinandra 
conjugens habitat with recent project information and aerial 
photography so as not to include areas that have recently been 
developed.
    We conducted this analysis to facilitate delineation of suitable 
habitat containing the primary constituent elements. The long-term 
survival and conservation of Deinandra conjugens is dependent upon the 
protection and management of existing essential populations, and the 
associated seed bank, and the maintenance of ecological functions 
within and between these populations, including connectivity within and 
among populations to allow effective pollinator activity and seed 
dispersal.
    The boundaries of designated critical habitat for Deinandra 
conjugens, shown on the attached maps and defined in the legal 
description, are based on a 100-meter Universal Transverse Mercator 
(UTM) grid, boundaries that have been legally described for the City of 
Chula Vista's draft preserve design for their draft MSCP Subarea Plan 
and the County of San Diego's major and minor amendment areas for their 
MSCP Subarea Plan, Sweetwater Authority lands (a water district in San 
Diego County), Otay Water District lands, Federal lands (e.g., 
Immigration and Naturalization Service (INS), San Diego National 
Wildlife Refuge lands (SDNWR)), and Trust for Public Lands property. 
This grid was overlaid on those areas determined to be essential and 
indicated by the Deinandra conjugens habitat analysis where we did not 
have legal descriptions for boundaries.
    As we discuss in detail below (see ``Relationship To Habitat 
Conservation Plans and Other Planning Efforts''), lands that are 
covered by an existing, legally operative, HCP with an operative 
implementing agreement (IA) in which Deinandra conjugens is a covered 
species were not included in the proposed critical habitat rule because 
we determined that the benefits of exclusion outweigh the benefits of 
inclusion pursuant to section 4(b)(2) of the Act. Areas excluded based 
on this criterion consist of lands within the County of San Diego and 
City of San Diego subarea plans, with the exception of those lands 
within the major and minor amendment areas addressed within the subarea 
plans, where the impacts to and conservation of Deinandra conjugens 
have not been addressed. Apart from the lands with operative HCPs, the 
majority of the remaining occupied habitat for Deinandra conjugens 
falls within designated or draft preserve areas within the MSCP.
    In defining critical habitat boundaries, we made an effort to 
exclude all developed areas, such as towns or housing developments, and 
lands unlikely to contain the primary constituent elements essential 
for conservation of Deinandra conjugens. Our 100-m UTM grid minimum 
mapping unit was designed to minimize the amount of development along 
the urban edge included in our designation. Lands containing existing 
features and structures, such as buildings, roads, railroads, urban 
development, and other similar developed features are not likely to 
contain primary constituent elements. Federal actions limited to those 
areas would not trigger a section 7 consultation, unless they affect 
the species or the primary constituent elements in adjacent critical 
habitat.
    The designated critical habitat units described below constitute 
our best assessment of areas that are essential for the species' 
conservation. As anticipated in the proposed rule, based upon the 
additional information received during the public comment period and 
field surveys after the proposed rule was published, the boundaries of 
the mapping units have been refined.

Critical Habitat Designation

    The approximate area encompassing the designated critical habitat 
broken down by land ownership is shown in Table 1. All of the 
designated critical habitat is in San Diego County, CA.

   Table 1.--Approximate Designated Critical Habitat in Hectares (ha)
                     (Acres (ac)) Land Ownership \1\
------------------------------------------------------------------------
   Federal \2\        State/local          Private            Total
------------------------------------------------------------------------
715 ha             580 ha             1,265 ha          2,560 ha
(1,765 ac)         (1,440 ac)         (3,125 ac)        (6,330 ac)
------------------------------------------------------------------------
\1\ Hectares have been converted to acres (1 ha = 2.47 ac). Based on the
  level of imprecision of mapping at this scale, hectares and acres have
  been rounded to the nearest 5.
\2\ Federal lands include the Service and INS lands.


[[Page 76042]]

    Critical habitat includes habitat throughout the species' current 
range in the United States (San Diego County, California). Lands 
designated are under Federal, State, local, and private ownership. 
Federal lands include areas owned or managed by the Service and INS. 
Lands designated as critical habitat have been divided into three 
critical habitat units. We have designated critical habitat on lands 
that are considered essential to the conservation of Deinandra 
conjugens. Each of these critical habitat units is considered to be 
occupied by either the seed bank or standing plants of Deinandra 
conjugens. A brief description of each unit, and reasons for 
designating it as critical habitat, are presented below.

Unit 1: Sweetwater/Proctor Valley Unit

    The Sweetwater/Proctor Valley Unit encompasses approximately 1,440 
ha (3,560 ac) at the northeastern limit of this species' distribution. 
This unit is south and east of State Route 54, south and west of State 
Route 94, and north of Upper Otay Reservoir. It includes portions of 
the Otay/Sweetwater Unit of SDNWR; lands belonging to the Sweetwater 
Authority around the Sweetwater Reservoir; lands belonging to the Otay 
Water District; lands that are proposed as preserve under the draft 
City of Chula Vista Subarea Plan; portions of two project areas within 
the draft City of Chula Vista Subarea Plan, but outside of the proposed 
preserve lands; and lands that are within major and minor amendment 
areas within the County of San Diego Subarea Plan. Two areas in this 
unit have not been designated as critical habitat, including the 
alignment for State Route 125 South and the San Diego County Park 
campground realignment and expansion, because these areas have been 
analyzed and determined not to be essential to the conservation of 
Deinandra conjugens.
    This unit contains several large populations of Deinandra 
conjugens, including a portion of the Rancho San Miguel population 
estimated to contain approximately 855,000 standing Deinandra conjugens 
plants during the 1995 and 1998 growing seasons (CNDDB 2002; Merkel & 
Associates, in litt. 1999). A portion of the Proctor Valley population 
not covered under the approved San Diego County MSCP, which had 
approximately 10,000 standing plants in the 1990 growing season (CNDDB 
2002), is also included. This unit also contains an area on the north 
side of the Sweetwater Reservoir where reports indicate there are 
approximately 2,000 standing plants (Roberts 1997), and an area on the 
north portion of the SDNWR that had approximately 2,000 standing plants 
in 1993 (CNDDB 2002).
    As discussed in the Changes From the Proposed Rule section of this 
final rule, portions of lands containing the approximately 28,000 
plants in the Rolling Hills Ranch population (i.e., the MSCP Neutral 
areas and proposed Chula Vista Subarea Plan reserve within the Rolling 
Hills Ranch project), and portions of other project lands (e.g., Bella 
Lago, Eastlake Woods) have been retained in the final rule while other 
areas were excluded.
    This unit contains multiple large Deinandra conjugens populations 
that are capable of producing large numbers of individuals in good 
years, which is important for this species to survive through a variety 
of natural and environmental changes, as well as stochastic (random) 
events. This unit contains populations in the northern and eastern 
extent of this species' historicaldistribution, which is essential for 
its conservation. Peripheral populations may have genetic 
characteristics essential to overall long-term conservation of the 
species (i.e., they may be genetically different than more central 
populations) (Lesica and Allendorf 1995). The populations in this unit 
can likely maintain genetic connectivity within and among themselves, 
and they may maintain genetic connectivity with the Otay Valley/Big 
Murphy's Unit. Therefore, the populations in this unit are essential to 
the conservation of the species.

Unit 2: Chula Vista Unit

    The Chula Vista Unit encompasses approximately 210 ha (520 ac) at 
the western portion of this plant's range. Most of the populations in 
this unit are found in the remaining habitat patches along canyon edges 
that were not developed. This unit contains lands that are proposed as 
preserve under the draft City of Chula Vista Subarea Plan, lands that 
are in a minor amendment area under the County of San Diego's Subarea 
Plan, and lands that are in a minor amendment area under the draft City 
of Chula Vista Subarea Plan.
    This unit contains the Rice Canyon population, which had more than 
50,000 standing plants in 1994 (CNDDB 2002), and the Poggi Canyon 
population that had a reported 10,000 standing plants in 1990 (CNDDB 
2002). This unit contains populations in the western extent of this 
species' distribution, which although currently isolated from each 
other, may contain significant amounts of genetic diversity and are, 
therefore, essential to the conservation of the species.

Unit 3: Otay Valley/Big Murphy's Unit

    The Otay Valley/Big Murphy's Unit encompasses approximately 910 ha 
(2,250 ac). It is east of Interstate 805, north of the International 
Boundary between the United States and Mexico on the east side, north 
of State Route 905 on the west side, west of Otay Mountain, and along 
the north rim of Otay Valley including Salt Creek and Wolf Canyon. This 
unit includes lands owned by INS, lands that are proposed as preserve 
under the draft City of Chula Vista Subarea Plan, and lands that are in 
major and minor amendment areas in the County of San Diego Subarea 
Plan. Areas in this unit that are within the alignment for State Route 
125 South have not been designated as critical habitat because these 
areas have been analyzed and determined not to be essential.
    This unit contains several large populations of Deinandra 
conjugens, such as the Johnson Canyon population, estimated at 
approximately 480,000 individuals (Helix Environmental Planning, Inc. 
2001), capable of producing large numbers of individuals in good years. 
These large populations are essential for this plant to survive through 
a variety of natural and environmental changes as well as stochastic 
events. The unit also contains the Otay River Valley population, which 
was reported to have approximately 4,000 standing plants (Roberts 
1997), the Wolf Canyon population, which was reported to have 
approximately 4,000 standing plants (Roberts 1997), the Brown Field 
population, which had a reported 5,600 individuals in 1998 (U.S. Army 
Corps of Engineers 2000), and the upper Salt Creek population, which 
was reported to have over 1,000 standing plants (Roberts 1997).
    Unit 3 contains populations in the southern and eastern portions of 
this species' distribution that are essential to the conservation of 
the species. One population in this unit is located at the southwestern 
edge of this species' range in the United States. This population may 
have connectivity with Deinandra conjugens populations in northwestern 
Baja California, Mexico. Because of its connectivity, this population 
is essential to the conservation of the species.
    Based on the proposed preserve design for the draft City of Chula 
Vista Subarea Plan, and the designated preserve designs for the City 
and County of San Diego HCPs, these populations may all retain 
connectivity among themselves because the habitat mosaic does not have 
large gaps. The populations in this unit may also provide and receive 
pollen or seed from

[[Page 76043]]

Deinandra conjugens populations in the Sweetwater/Proctor Valley Unit.
    This connectivity will facilitate gene flow within this unit and 
among other units which, in turn, may allow evolutionary processes that 
affect Deinandra conjugens to continue relatively unimpeded. 
Maintaining the Deinandra conjugens populations and their genetic 
connectivity (both within and among units) is essential to the 
conservation of this species. A Deinandra conjugens population north of 
Otay Valley and west of Otay Lakes is located within designated 
critical habitat. This population may provide important genetic 
connectivity between the Salt Creek and Otay Valley populations.
    Because this unit contains a number of large Deinandra conjugens 
populations, these populations will maintain genetic connectivity 
within and among themselves, they will maintain genetic connectivity 
with the Sweetwater/Proctor Valley Unit and possibly with plants in 
Mexico, therefore, the populations in this unit are essential to the 
conservation of the species.

Effects of Critical Habitat Designation

Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are affected by the designation of critical habitat if 
their actions occur on Federal lands, require Federal authorization, or 
involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including us, 
to insure that their actions are not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. This requirement is met 
through section 7 consultation under the Act. Our regulations define 
``jeopardize the continued existence'' as to engage in an action that 
reasonably would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species (50 CFR 402.02). ``Destruction or adverse 
modification of designated critical habitat'' is defined as a direct or 
indirect alteration that appreciably diminishes the value of the 
critical habitat for both the survival and recovery of the species (50 
CFR 402.02). Such alterations include, but are not limited to, adverse 
changes to the physical or biological features, i.e., the primary 
constituent elements, that were the basis for determining the habitat 
to be critical (50 CFR 402.02).
    Section 7(a)(4) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. Conference reports provide 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The conservation 
recommendations in a conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports 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) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, we 
would ensure that the permitted actions do not destroy or adversely 
modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we would 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 Fish and Wildlife Service Regional Director believes would 
avoid the destruction or adverse modification of critical habitat. 
Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions 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.
    Activities on Federal lands that may affect Deinandra conjugens or 
its critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or 
some other Federal action, including funding (e.g., from the Federal 
Highway Administration, Federal Aviation Administration (FAA), or 
Federal Emergency Management Agency (FEMA)); permits from the 
Department of Housing and Urban Development (HUD); activities by INS on 
land under their jurisdiction; activities funded by the U.S. 
Environmental Protection Agency (EPA), Department of Energy (DOE), or 
any other Federal agency; regulation of airport improvement activities 
by FAA; and construction of communication sites licensed by the Federal 
Communications Commission (FCC) will also continue to be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat and actions on non-Federal lands that are 
not federally funded, authorized, or permitted do not require section 7 
consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat, or that may be affected by such designation. 
Activities that may result in the destruction or adverse modification 
of critical habitat include those that alter the primary constituent 
elements to an extent that the value of critical habitat for the 
conservation of Deinandra conjugens is appreciably reduced. We note 
that such activities

[[Page 76044]]

may also jeopardize the continued existence of the species. Activities 
that, when carried out, funded or authorized by a Federal agency, may 
directly or indirectly destroy or adversely modify critical habitat 
include, but are not limited to:
    (1) Removing, thinning, or destroying Deinandra conjugens habitat 
(as defined in the primary constituent elements discussion), whether by 
burning, mechanical, chemical, or other means (e.g., plowing, grubbing, 
grading, grazing, woodcutting, construction, road building, mining, 
herbicide application, etc.);
    (2) Activities that appreciably degrade or destroy Deinandra 
conjugens habitat (and its primary constituent elements) that could 
include, but not limited to, livestock grazing, clearing, discing, 
farming, residential or commercial development, introducing or 
encouraging the spread of nonnative species, off-road vehicle use, and 
heavy recreational use;
    (3) Appreciably diminish habitat value or quality through indirect 
effects (e.g., edge effects, invasion of exotic plants or animals, or 
fragmentation); and
    (4) Activities that alter watershed characteristics in ways that 
would appreciably alter or reduce the quality or quantity of surface 
and subsurface flow of water needed to maintain grassland, scrub, and 
chaparral communities. These activities could include, but are not 
limited to, altering the natural fire regime either through fire 
suppression or prescribed fires that are too frequent or poorly-timed; 
residential and commercial development, including road building and 
golf course installations; agricultural activities, including row crops 
and livestock grazing; and vegetation manipulation such as clearing or 
grubbing in the watershed upslope from Deinandra conjugens.
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section). 
Requests for copies of the regulations on listed wildlife, and 
inquiries about prohibitions and permits may be addressed to the U.S. 
Fish and Wildlife Service, Branch of Endangered Species, 911 NE., 11th 
Ave., Portland, OR 97232 (telephone 503/231-2063; facsimile 503/231-
6243).

Relationship to Habitat Conservation Plans and Other Planning Efforts

    Section 10(a)(1)(B) of the Act authorizes the Service to issue to 
non-Federal entities a permit for the incidental take of endangered and 
threatened animal species incidental to otherwise lawful activities. An 
incidental take permit must be supported by an HCP that identifies 
conservation measures that the permittee agrees to implement to 
minimize and mitigate the impacts of the permitted take of the species. 
Although the Act does not prohibit ``take'' of listed plant species, 
many HCPs include plant species as ``covered species'' and provide 
conservation measures to protect the species and their habitats. We 
include plant species on the incidental take permit in recognition of 
the conservation of habitats under the HCP provided we determine that 
the permit will not appreciably reduce the likelihood of the survival 
and recovery of the plant species in the wild.
    In the proposed rule we discussed the relative benefits of 
including or excluding from critical habitat lands covered by a legally 
operative HCP that includes Deinandra conjugens as a covered species 
(See 66 FR 32060) under section 4(b)(2) of the Act. In particular we 
noted that the benefits of including HCP lands in critical habitat are 
normally small to non-existent because approved HCPs are already 
designed to ensure the survival of covered species. HCPs typically 
protect essential habitat in reserves that are managed to protect, 
restore, and enhance their value as habitat for the species. Moreover, 
before approving an HCP or issuing an incidental take permit, we 
complete a section 7 of the Act consultation on the proposed permit and 
must conclude that the permit will not result in jeopardy to any 
covered species in the plan area. HCPs protect and manage essential 
habitat for covered species, and typically provide greater conservation 
benefit to a species than would result from a section 7 consultation.
    In contrast to negligible benefits of including HCP lands in 
critical habitat, we noted in the proposed rule that the benefits of 
excluding such lands are typically significant. They include relieving 
landowners, communities, and counties of any additional regulatory 
review that might be imposed by critical habitat. We expressed concern 
that imposing as additional regulatory review after HCP completion 
could jeopardize conservation efforts and be viewed as a disincentive 
to those developing HCPs, while excluding approved HCPs would encourage 
the continued development of partnerships with HCP participants, 
including States, local governments, conservation organizations, and 
private landowners. We concluded that the benefits of excluding lands 
covered by a legally operative HCP would normally outweigh the benefits 
of including such lands, but that each HCP which includes Deinandra 
conjugens as a covered species must be evaluated individually to 
determine whether the benefits of excluding lands containing essential 
habitat within the plan area outweighed the benefits of including such 
lands.
    We identified three approved HCPs in the San Diego County that 
include Deinandra conjugens as a covered species. These HCPs are the 
San Diego Gas and Electric Company HCP, and two subarea plans under the 
MSCP, a framework conservation plan that encompasses approximately 
236,000 ha (582,000 ac) of land in southwestern San Diego County and 
multiple jurisdictions. Those subarea plans are the City of San Diego 
Subarea Plan and the County of San Diego Subarea Plan, with the 
exception of lands within the County's major and minor amendment areas 
that do not address or provide protection for Deinandra conjugens. Each 
of the three HCPs protects the essential habitat of Deinandra conjugens 
within their respective plan areas. We also completed section 7 
consultations on each of the plans and determined that the approved 
HCPs would not jeopardize the continued existence of the species in the 
wild. For the reasons stated in the proposed rule, we did not include 
in the proposed critical habitat rule lands that encompass essential 
habitat of Deinandra conjugens within the boundaries of the three 
approved HCPs, with the exception of lands in the major and minor 
amendment areas under the County of San Diego Subarea Plan. 
Consequently, those lands are included in this final critical habitat 
determination.
    We recently received a revised draft of the Sweetwater Authority 
HCP for our review, and are in the process of reviewing the plan's 
proposed reserve design. The City of Chula Vista is expected to 
complete their MSCP Subarea planning process in the near future. We 
have worked closely with the City of Chula Vista on the design of their 
preserve, specifically in relation to the conservation of Deinandra 
conjugens. The City of Chula Vista's draft Subarea Plan would conserve 
several large Deinandra conjugens populations areas in a configuration 
that will maintain connectivity within and among these populations. The 
draft plan also includes criteria for conservation of Deinandra 
conjugens within certain areas that have not yet been surveyed.

[[Page 76045]]

The majority of the lands proposed for conservation under the Chula 
Vista Subarea Plan contain clay soils and the appropriate vegetation 
types for Deinandra conjugens. Because the City of Chula Vista and 
Sweetwater Authority HCPs are not yet completed, the areas within those 
plans essential for the conservation of Deinandra conjugens are 
included in the designation of critical habitat.
    In the event that future HCPs, such as those under development by 
the City of Chula Vista and Sweetwater Authority, covering Deinandra 
conjugens are developed within the boundaries of designated critical 
habitat, we will work with applicants to ensure that the HCPs provide 
for protection and management of habitat areas essential for the 
conservation of Deinandra conjugens by either directing development and 
habitat modification to nonessential areas or appropriately modifying 
activities within essential habitat areas so that such activities will 
not destroy or adversely modify the primary constituent elements. The 
HCP development process provides an opportunity for more intensive data 
collection and analysis regarding the use of particular habitat areas 
by Deinandra conjugens. The process also enables 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 expect that HCPs developed by 
local jurisdictions (e.g., counties, cities) and other parties will 
identify, protect, and provide appropriate management for those 
specific lands within the boundaries of the plans that are essential 
for the long-term conservation of the species. We expect that our 
analyses of these proposed HCPs and proposed permits under section 7 of 
the Act will show that covered activities carried out in accordance 
with the provisions of the HCPs and biological opinions will not result 
in destruction or adverse modification of critical habitat.
    We will provide technical assistance and work closely with 
applicants with respect to HCPs currently under development and future 
HCPs to identify lands essential for the long-term conservation of 
Deinandra conjugens and appropriate management for those lands. The 
minimization and mitigation measures provided under these HCPs are 
expected to protect the essential habitat lands designated as critical 
habitat in this rule. If an HCP that address Deinandra conjugens as a 
covered species is ultimately approved, we may reassess the critical 
habitat boundaries in light of the HCP.
    Should additional information become available that changes our 
analysis of the benefits of excluding any of these (or other) areas 
compared to the benefits of including them in the critical habitat 
designation, we may revise this final determination accordingly. 
Similarly, if new information indicates any of these areas should not 
be included in the critical habitat designation because they no longer 
meet the definition of critical habitat, we may revise this final 
critical habitat designation.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    Following the publication of the proposed critical habitat 
designation, a draft economic analysis was conducted to estimate the 
potential economic effect of the proposed designation. The draft 
analysis was made publically available for review on July 13, 2002. We 
accepted comments on the draft analysis until August 9, 2002.
    Our draft economic analysis evaluated potential future effects 
associated with the listing of Deinandra conjugens as a threatened 
species under the Act, as well as any potential effect of the critical 
habitat designation above and beyond those regulatory and economic 
impacts associated with listing. To quantify the proportion of total 
potential economic impacts attributable to the proposed critical 
habitat designation, the analysis evaluated a ``without critical 
habitat'' baseline and compared it to a ``with critical habitat'' 
scenario. The ``without critical habitat'' baseline represented the 
current and expected economic activity under all modifications prior to 
the critical habitat designation, including protections afforded the 
species under Federal and State laws. The difference between the two 
scenarios measured the net change in economic activity attributable to 
the designation of critical habitat. The categories of potential costs 
considered in the analysis included the costs associated with (1) 
Conducting section 7 consultations associated with the listing or with 
the critical habitat, including incremental consultations and technical 
assistance; (2) modifications to projects, activities, or land uses 
resulting from the section 7 consultations; (3) uncertainty and public 
perceptions resulting from the designation of critical habitat; and (4) 
potential offsetting beneficial costs associated with critical habitat 
including educational benefits.
    The majority of consultations resulting from the critical habitat 
designation for Deinandra conjugens are likely to address land 
development, road construction or road expansion activities, and 
National Wildlife Refuge management activities. As described in the 
draft economic analysis, Deinandra conjugens surveys have been 
conducted over a broad area, and many occupied areas have been mapped. 
As a result, all of the parcels where impacts are expected are occupied 
by Deinandra conjugens. As a result, the costs attributable solely to 
critical habitat are much smaller than the total section 7 costs.
    Following the close of the comment period on the draft economic 
analysis, a final addendum was completed which incorporated public 
comments on the draft analysis and a re-evaluation of the analysis of 
potential economic effects of the designation. Based on this new 
analysis, the cost of consultations to third parties was revised. 
Subsequently, the addendum concluded that the designation may result in 
approximately $370,000 to $466,000 per year in potential economic 
effects due to the total effects of critical habitat, including those 
effects coextensive with listing. These changes from the draft economic 
analysis are due to adjustments made to the third party cost estimates. 
As discussed in the final addendum to the economic analysis, a comment 
letter from McMillin Land Development suggested that costs associated 
with ``extraordinary design measures'' for the Salt Creek sewer line 
should be considered as part of the economic costs of critical habitat 
designation as many of these costs are directly attributable to 
Deinandra conjugens. However, project modifications associated with the 
Salt Creek sewer line were primarily due to substantial avoidance of 
habitat occupied by the Quino checkerspot butterfly, coastal California 
gnatcatcher, and least Bell's vireo, along with other species covered 
under the MSCP in the Salt Creek/Otay River area. Therefore, as one of 
the covered species, Deinandra conjugens played a minor role in the 
recommended project modifications. Further, because of the linear 
nature of

[[Page 76046]]

the pipeline project, direct impacts to sanding plants were avoided. 
Nevertheless, specific project modifications (i.e., flagging of 
additional 200 feet of habitat) would not be required absent critical 
habitat designation. Therefore, the final addendum to the economic 
analysis conservatively estimates that all administrative costs of the 
formal Section 7 consultation, and the costs of the relevant project 
modifications, are attributable to the critical habitat designation for 
Deinandra conjugens.
    A more detailed discussion of our analyses are contained in the 
July 13, 2002, Draft Economic Analysis of Proposed Critical Habitat 
Designation for the Otay Tarplant (Industrial Economics, Inc. 2002a) 
and the Addendum to Economic Analysis of Critical Habitat Designation 
for the Otay Tarplant (Industrial Economics, Inc. 2002b). Both 
documents are included in the supporting documentation for this 
rulemaking and available for inspection at the Carlsbad Fish and 
Wildlife Office (refer to ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB), as OMB determined that this rule may raise novel legal or 
policy issues. As required by E.O. 12866, we have provided a copy of 
the rule, which describes the need for this action and how the 
designation meets that need, and the economic analysis, which assess 
the costs and benefits of this critical habitat designation, to OMB for 
review.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the 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. We are hereby certifying that this rule designating critical 
habitat for Deinandra conjugens will not have a significant economic 
impact on a substantial number of small entities. The following 
discussion explains our rationale for this certification.
    Small entities include small organizations, such as independent 
non-profit organizations, small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses (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. To determine if potential economic 
impacts to these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule would affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting, etc.). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. A ``substantial number'' of small 
entities is more than 20 percent of those small entities affected by 
the regulation, out of the total universe of small entities in the 
industry or, if appropriate, industry segment. 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.
    In estimating the numbers of small entities potentially affected, 
we also considered whether their activities have any Federal 
involvement. Designation of critical habitat only has the potential to 
affect activities conducted, funded, or permitted by Federal agencies. 
In areas where the species is 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 Deinandra 
conjugens. Federal agencies must also consult with us if their 
activities may affect designated critical habitat. Some kinds of 
activities are unlikely to have any Federal involvement and so will not 
be affected by critical habitat designation. Activities with Federal 
involvement that may require consultation regarding Deinandra conjugens 
and its critical habitat include: Regulation of activities affecting 
waters of the United States by the U.S. Army Corps of Engineers under 
section 404 of the Clean Water Act; management activities carried out 
by the Service on National Wildlife Refuge lands; and, road 
construction, maintenance, and right of way designations that are 
authorized, funded, or carried out by a Federal agency. As required 
under section 4(b)(2) of the Act, we conducted an analysis of the 
potential economic impacts of this critical habitat designation. In the 
analysis, we found that the future section 7 consultations resulting 
from the listing of Deinandra conjugens and the proposed designation of 
critical habitat could potentially impose total economic costs for 
consultations and modifications to projects to range between 
approximately $2.8 million to $2.9 million over the next 10-year 
period. Public comment on the draft economic analysis led to a revision 
of third party cost estimates that would result from section 7 
consultations. The changes in cost estimates are discussed and 
reflected in the Addendum to the Draft Economic Impact Analysis of 
Critical Habitat Designation for the Otay Tarplant (Industrial 
Economics, Inc. 2002), where we found that the future section 7 
consultations resulting from the listing of Deinandra conjugens and the 
proposed designation of critical habitat could potentially impose total 
economic costs for consultations and modifications to projects in the 
range of between approximately $3.2 million to $4.0 million over the 
next 10-year period.
    As stated in the Addendum, income from construction, transportation 
and

[[Page 76047]]

public utilities, and real estate in San Diego County for 2000 was 
about $8.8 billion. Assuming that each of the anticipated section 7 
consultations occurs in the same year, as opposed to occurring 
throughout the 10-year timeframe used in the draft economic analysis, 
the estimated section 7 costs associated with the listing of Deinandra 
conjugens and proposed designation of critical habitat represent 
approximately 0.03 percent of the total value of these economic 
activities annually. Further, the section 7 costs attributable solely 
to critical habitat represent 0.0 percent of the annual total value of 
the economic activities.
    Based on the past consultation history of Deinandra conjugens, the 
economic analysis anticipated that future section 7 consultations could 
potentially affect small businesses associated with residential 
development. To be conservative (i.e., more likely to overstate impacts 
than understate them), the economic analysis assumed that a unique 
company will undertake each of the consultations forecasted in a given 
year, and so the number of businesses affected is equal to the total 
annual number of consultations projected in the economic analysis. 
There are approximately 478 residential development companies in San 
Diego County, 414 of which are small businesses. One developer, 
McMillin-Rolling Hills Ranch, LLC was identified as having a Federal 
nexus and having the potential of being affected by section 7 
implementation for Deinandra conjugens. McMillin-Rolling Hills Ranch, 
LLC, owner of the Rolling Hills Ranch property, has completed a section 
7 consultation with regard to its application to the U.S. Army Corps of 
Engineers for a permit under section 404 of the Clean Water Act and has 
experienced costs associated with project modifications. Because it is 
anticipated that only one developer will be impacted by the Deinandra 
conjugens critical habitat designation, less than one percent of small 
development companies are potentially affected. Because this is less 
than the 20 percent threshold that would be considered ``substantial,'' 
the analysis confirms that this designation will not affect a 
substantial number of small entities. The draft economic analysis and 
final addendum contain the factual bases for this certification and 
contain an analysis of the potential economic effects of this 
designation. Copies of these documents are in the supporting record for 
the rulemaking and are available at the Service's Carlsbad Fish and 
Wildlife Office (see ADDRESSES section).
    In summary, we have considered whether this rule could result in 
significant economic effects on a substantial number of small entities. 
We have determined, for the above reasons, that it will not affect a 
substantial number of small entities. Therefore, we are certifying that 
the designation of critical habitat for Deinandra conjugens will not 
have a significant economic impact on a substantial number of small 
entities. Accordingly, a regulatory flexibility analysis is not 
required.

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

    OMB's Office of Information and Regulatory Affairs has determined 
that this rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. In the economic analysis, 
we determined whether designation of critical habitat would cause (a) 
Any effect on the economy of $100 million or more, (b) any increases in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions, or (c) any 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises. Refer to the final economic 
analysis for a discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211, which 
applies to regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
The primary land uses within designated critical habitat for Deinandra 
conjugens include residential development, road construction 
activities, and National Wildlife Refuge operations. No significant 
energy production, supply, and distribution facilities are included 
within designated critical habitat. Therefore, this action is not a 
significant action affecting energy production, supply, and 
distribution facilities, and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that Federal agencies 
funding, permitting, or authorizing other activities must ensure that 
their actions will not adversely affect the critical habitat. However, 
as discussed above, these actions are currently subject to equivalent 
restrictions through the listing protections of the species, and no 
further restrictions are anticipated in areas of occupied designated 
critical habitat.
    (b) For the reasons described in the economic analysis and this 
final rule, this rule will not produce a Federal mandate on State, 
local, or Tribal governments of $100 million or greater in any year. 
The designation of critical habitat imposes no obligations on State or 
local governments. Therefore, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

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 approximately 2,560 ha (6,330 ac) of land in San Diego 
County, California, in three units of critical habitat for Deinandra 
conjugens. The takings implications assessment concludes that this rule 
does not pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism Assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from, and coordinated the development of this 
critical habitat designation with, appropriate State natural resources 
agencies in California. We will continue to coordinate any future 
changes in the designation of critical habitat for Deinandra conjugens 
with the appropriate State agencies. The designation of critical 
habitat for Deinandra conjugens imposes few, if any, additional 
restrictions to those currently in place and therefore has little 
incremental impact on State and local governments and their activities. 
The designation may provide some benefit to these governments in that 
the areas essential to the conservation of the species are more clearly 
defined and the primary constituent elements of the habitat necessary 
to the conservation of the species are specifically identified. While 
this definition and identification

[[Page 76048]]

does not alter where and what federally sponsored activities may occur, 
it may assist these local governments in long-range planning, rather 
than waiting for case-by-case section 7 consultations to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Act, as amended. The 
rule uses standard property descriptions and identifies the primary 
constituent elements within the designated areas to assist the public 
in understanding the habitat needs that are essential for the 
conservation of Deinandra conjugens. We have made every effort to 
ensure that the final determination contains no drafting errors, 
provides clear standards, simplifies procedures, reduces burdens, and 
is clearly written, such that the risk of litigation is minimized.

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis. We are not aware of any 
Tribal lands essential for the conservation of Deinandra conjugens. 
Therefore, the designated critical habitat for Deinandra conjugens does 
not contain any Tribal lands or lands that we have identified as 
impacting Tribal trust resources.

References Cited

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

Author

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


    2. In Sec.  17.12(h), remove the entry for Hemizonia conjugens and 
add the following in alphabetical order under ``FLOWERING PLANTS'' to 
the List of Endangered and Threatened Plants to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species
----------------------------------------------------   Historic range          Family            Status     When listed   Critical  habitat    Special
        Scientific name              Common name                                                                                                rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                                      * * * * * * *
Deinandra (=Hemizonia)           Otay tarplant.....  U.S.A. (CA),        Asteraceae--Sunflo  T                      649  17.96(a)                     NA
 conjugens.                                           Mexico.             wer.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. In Sec.  17.96, amend paragraph (a) by adding an entry for 
Deinandra conjugens (Otay tarplant) in alphabetical order under 
Asteraceae to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
Family Asteraceae: Deinandra conjugens (Otay tarplant)
    (1) Critical habitat units are depicted for San Diego County, 
California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Deinandra conjugens are those habitat components that are essential for 
the primary biological needs of the species. Based on our current 
knowledge of this species, the primary constituent elements for 
Deinandra conjugens consist of, but are not limited to, soils with a 
high clay content (generally greater than 25 percent) (or clay 
intrusions or lenses) that are associated with grasslands, open coastal 
sage scrub, or maritime succulent scrub communities between 25 m (80 
ft) and 300 m (1,000 ft) elevation. These plant communities contain 
natural openings that provide habitat for Deinandra conjugens life-
cycle, and pollen and seed dispersal agents.
    (3) Critical habitat does not include non-Federal lands covered by 
a legally

[[Page 76049]]

operative Habitat Conservation Plan issued under section 10(a)(1)(B) of 
the Act in which Deinandra conjugens is a covered species on or before 
the publication of this final rule.
    (4) Existing features and structures, such as buildings, paved or 
unpaved roads, and other landscaped areas not containing primary 
constituent elements, are not likely to contain the primary constituent 
elements for Deinandra conjugens. Federal actions limited to those 
areas, therefore, would not trigger a section 7 consultation, unless 
they affect the species or primary constituent elements in adjacent 
critical habitat.
    (i) Note: Index map follows:
    [GRAPHIC] [TIFF OMITTED] TR10DE02.000
    
    (5) Unit 1: Sweetwater/Proctor Valley, San Diego County, 
California.
    (i) Unit 1a: From USGS 1:24,000 quadrangle map Jamul Mountains, 
beginning at the SDNWR boundary at UTM NAD27 x-coordinate 505100; 
thence south following UTM NAD27 coordinates (E, N): 505100, 3620400; 
505000, 3620400; 505000, 3620200; 504900, 3620200; 504900, 3620100; 
504800, 3620100; 504800, 3620000; 504700, 3620000; 504700, 3619900; 
504600, 3619900; 504600, 3619700; 504500, 3619700; 504500, 3619600; 
504400, 3619600; 504400, 3619500; 504300, 3619500; 504300, 3619400; 
504100, 3619400; 504100, 3619300; 504000, 3619300; thence south to the 
SDNWR boundary at UTM x-coordinate 504000; thence south following the 
SDNWR boundary returning to the point of beginning on the SDNWR 
boundary at UTM x-coordinate 505100.
    (ii) Unit 1b: From USGS 1:24,000 quadrangle maps National City and 
Jamul Mountains, beginning at the Sweetwater Reservoir at UTM NAD27 y-
coordinate 3618500; thence east and following UTM NAD27 coordinates 
503000, 3618500; 503000, 3616000; 503100, 3616000; 503100, 3615400; 
503200, 3615400; 503200, 3615300; 503600, 3615300; 503600, 3615400; 
503700, 3615400; 503700, 3615600; 503900, 3615600; 503900, 3615800; 
thence east to the Otay Water District (OWD) boundary at UTM NAD27 y-
coordinate 3615800; thence north following the OWD boundary to the City 
of Chula Vista Preserve Design (CCVPD) boundary; thence east following 
the CCVPD boundary to UTM NAD27 x-coordinate 505900; thence north 
following UTM NAD27 coordinates 505900, 3615900; 506000, 3615900; 
506000, 3616000; 506700, 3616000, 506700, 3616100; thence east to the 
SDNWR boundary at UTM NAD27 y-coordinate 3616100; thence east following 
the SDNWR boundary to UTM NAD27 x-coordinate 507200; thence north 
following UTM NAD27 coordinates 507200, 3616200; 507400, 3616200; 
507400, 3616300; 507500, 3616300; 507500, 3616400; 507600, 3616400; 
thence north to the County of San Diego Major Amendment (CSDMjA) 
boundary at UTM NAD27 x-coordinate 507600; thence east following the 
CSDMjA boundary to the SDNWR

[[Page 76050]]

boundary; thence south following the SDNWR boundary to the CSDMjA 
boundary; thence south following the CSDMjA boundary to UTM NAD27 x-
coordinate 506100; thence south following UTM NAD27 coordinates 506100, 
3613100; 506000, 3613100; thence north to the City of Chula Vista (CCV) 
boundary at UTM NAD27 x-coordinate 506000; thence northwest following 
the CCV boundary south to UTM NAD27 x-coordinate 505700; thence north 
to the CCVPD boundary at UTM x-coordinate 505700: thence northwest 
along the CCVPD boundary to the City of Chula Vista Major Amendment 
boundary (CCVMjA); thence north along the CCVMjA boundary to the CCVPD 
boundary; thence north and east along the CCVPD boundary to the CCVMjA 
boundary; thence east along the CCVMjA boundary to the CCVPD boundary; 
thence north and west along the CCVPD boundary to the MSCP Neutral Area 
boundary (MNA); thence south and back north along the MNA boundary to 
UTM NAD27 y-coordinate 3614700; thence east along UTM NAD27 y-
coordinate to the MNA boundary; thence south along the MNA boundary to 
the CCVPD boundary; thence following the CCVPD boundary to the MNA 
boundary; thence south along the MNA boundary to the CCVPD boundary; 
thence west along the CCVPD boundary to UTM NAD27 y-coordinate 3621500; 
thence west along UTM y-coordinate to the OWD boundary; thence south 
following the OWD boundary to UTM NAD27 x-coordinate 504600; thence 
north following UTM NAD27 coordinates 504600, 3614600; 504500, 3614600; 
504500, 3615500; 504400, 3615500; 504400, 3615700; 504300, 3615700; 
504300, 3615800; 504200, 3615800; 504200, 3615700; 504100, 3615700; 
504100, 3615200; 504000, 3615200; 504000, 3615100; 503900, 3615100; 
503900, 3614900; 503800, 3614900; 503800, 3614800; 503900, 3614800; 
503900, 3614600; 503800, 3614600; 503800, 3614400; 503700, 3614400; 
thence south to the OWD boundary at UTM NAD27 x-coordinate 503700; 
thence west following the OWD boundary to the Multiple Habitat Planning 
Area (MHPA) boundary; thence west following the MHPA to the SDNWR 
boundary; thence south following the SDNWR boundary to UTM NAD27 y-
coordinate 3616100; thence west following UTM NAD27 coordinates 501200, 
3616100; 501200, 3615800; 500800, 3615800; thence north to the 
Sweetwater Authority Water District (SWAWD) boundary at UTM NAD27 x-
coordinate 500800; thence west following the SWAWD boundary to the 
County of San Diego Minor Amendment (CSDMnA) boundary; thence west 
following the CSDMnA boundary to the SWAWD boundary; thence west 
following the SWAWD boundary to approximately UTM NAD27 coordinates 
5014000, 3618650 where the SWAWD meets the Sweetwater Reservoir 
shoreline; thence south following the Sweetwater Reservoir shoreline 
(SRS) to UTM NAD27 x-coordinate 499400; thence north following UTM 
NAD27 coordinates 499400, 3617000; 499400, 3617100; 499300, 3617100; 
499300, 3617200; 499200, 3617200; 499200, 3617000; thence east to the 
SRS at UTM NAD27 y-coordinate 3617000; thence south following the SRS 
back to the point of beginning at UTM NAD27 y-coordinate 3618500; 
excluding lands bounded by the CCVPD boundary at UTM NAD27 x-coordinate 
505800; thence east following the CCVPD boundary to UTM NAD27 x-
coordinate 506100; thence north and following UTM NAD27 coordinates 
506100, 3614700; 505700, 3614700; 505700, 3615300; 505800, 3615300; 
thence north returning to the point of beginning on the CCVPD boundary 
at UTM NAD27 x-coordinate 505800; excluding lands bounded by the 
following UTM NAD27 coordinates 499800, 3616000; 500000, 3616000; 
500000, 3615800; 499900, 3615800; 499900, 3615700; 499800, 3615700; 
499800, 3616000; excluding the proposed State Route 125 easement.
    (iii) Unit 1c and d: From USGS 1:24,000 quadrangle map Jamul 
Mountains, the lands bounded by the CCVPD boundary at Horseshoe Bend 
and Gobblers Knob.
    (iv) Unit 1e: From USGS 1:24,000 quadrangle map Jamul Mountains, 
the lands bounded by the MNA boundary at Rolling Hills Ranch.
    (v) Note: Unit 1 map follows:

[[Page 76051]]

[GRAPHIC] [TIFF OMITTED] TR10DE02.001

    (6) Unit 2: Chula Vista, San Diego County, California.
    (i) Unit 2a: From USGS 1:24,000 quadrangle maps National City, the 
lands bounded by the CCVPD boundary in Long Canyon and between UTM 
NAD27 coordinates 497900 and 499700.
    (ii) Unit 2b and c: From USGS 1:24,000 quadrangle map National 
City, the lands bounded by the CCVPD boundary south of Otay Lakes Road 
and between UTM NAD27 x-coordinates 497300 and 499500.
    (iii) Unit 2d: From USGS 1:24,000 quadrangle map National City, the 
lands bounded by the CCVPD boundary in Rice Canyon and between UTM 
NAD27 x-coordinates 496900 and 499100.
    (iv) Unit 2e: From USGS 1:24,000 quadrangle maps National City and 
Imperial Beach, the lands bounded by the CCVPD boundary in Telegraph 
Canyon and between UTM NAD27 x-coordinates 498100 and 499300.
    (v) Unit 2f: and h: From USGS 1:24,000 quadrangle map Imperial 
Beach, the lands bounded by the CCVPD boundary in Poggi Canyon and 
between UTM NAD27 x-coordinates 497400 and 499000.
    (vi) Unit 2g: From USGS 1:24,000 quadrangle map Imperial Beach, 
beginning at the CCV boundary at UTM NAD27 x-coordinate 498600; thence 
south following UTM NAD27 coordinates 498600, 3607300; 498400, 3607300; 
498400, 3607200; 498300, 3607200; 498300, 3606900; 498500, 3606900; 
thence south to the CCV boundary at UTM NAD27 x-coordinate 498500; 
thence west following the CCV boundary to the CCVPD boundary; thence 
west following the CCVPD boundary to the CCV boundary; thence east 
returning to the point of beginning on the CCV boundary at UTM NAD27 x-
coordinate 498600.
    (vii) Note: Unit 2 map follows:

[[Page 76052]]

[GRAPHIC] [TIFF OMITTED] TR10DE02.002

    (7) Unit 3: Otay Valley/Big Murphy's, San Diego County, California.
    (i) Unit 3a: From USGS 1:24,000 quadrangle maps Imperial Beach, 
Otay Mesa, and Jamul Mountains beginning on the CCVPD boundary at UTM 
NAD27 x-coordinate 499900; thence east following the CCVPD boundary to 
UTM NAD27 x-coordinate 506400; thence south following the UTM NAD27 
coordinates 506400, 3607200; 506300, 3607200; 506300, 3607100; 505600, 
3607100; 505600, 3606900; 505300, 3606900; 505300, 3606700; 505100, 
3606700; 505100, 3606600; 504900, 3606600; 504900, 3606500; 504800, 
3606500; 504800, 3606600; 504700, 3606600; 504700, 3606700; 504500, 
3606700; 504500, 3606600; 504400, 3606600; 504400, 3606500; 504300, 
3606500; 504300, 3606300; thence west to the CCVPD boundary at UTM y-
coordinate 3606300; thence north following the CCVPD boundary to UTM 
NAD27 x-coordinate 502400; thence south following UTM NAD27 coordinates 
502100, 3605600; 502100, 3605500; 501900, 3605500; 501900, 3605300; 
502800, 3605300; 502800, 3605400; thence east to the CCVPD boundary at 
UTM NAD27 y-coordinate 3605400; thence east following the CCVPD 
boundary to UTM NAD27 x-coordinate 504500; thence north following UTM 
NAD27 coordinates 504500, 3606200; 504800, 3606200; 504800, 3606300; 
505000, 3606300; 505000, 3606400; 505100, 3606400; 505100, 3606500; 
505200, 3606500; 505200, 3606600; 505700, 3606600; 505700, 3606500; 
505800, 3606500; 505800, 3606600; 506300, 3606600; 506300, 3606800; 
506600, 3606800; 506600, 3606900; thence east to the CCVPD boundary at 
UTM NAD27 y-coordinate 3606900; thence south following the CCVPD 
boundary to the CCV boundary; thence west following the CCV boundary to 
the CCVPD boundary; thence north following the CCVPD boundary to the 
UTM NAD27 y-coordinate 3604700; thence west following UTM NAD27 
coordinates 500400, 3604700; 500400, 3604800; 500100, 3604800; 500100, 
3604700; thence west to the CCV boundary at UTM NAD27 y-coordinate 
3604700; thence north along the CCV boundary to the CCVPD boundary; 
thence east following the CCVPD boundary to UTM NAD27 x-coordinate 
501300; thence north following UTM NAD27 coordinates 501300, 3605300; 
501400, 3605300; thence north to the CCVPD boundary at UTM NAD27 x-
coordinate 501400; thence north following the CCVPD boundary to UTM 
NAD27 x-coordinate 501600; thence north following UTM NAD27 coordinates 
501600, 3605900; 501500, 3605900; 501500, 3606000; 501300, 3606000; 
501300, 3606100; thence north to the CCVPD boundary at UTM NAD27 x-
coordinate 501300; thence east following the CCVPD boundary to UTM 
NAD27 y-coordinate 3605700; thence east following UTM NAD27 coordinates 
500600, 3605700; 500600, 3605800; 500100, 3605800; 500100, 3605900; 
499900, 3605900; thence north returning to the point of beginning on 
the CCVPD boundary at UTM NAD27 x-coordinate 499900; excluding the 
proposed State Route 125 easement.

[[Page 76053]]

    (ii) Unit 3b: From USGS 1:24,000 quadrangle map Otay Mesa, the 
southern half of the Immigration and Nationalization Service land at 
Brown Field.
    (iii) Unit 3c: From USGS 1:24,000 quadrangle map Otay Mesa, 
beginning on the CSDMjA boundary at UTM NAD27 y-coordinate 3604000; 
thence south following the CSDMjA boundary to UTM NAD27 x-coordinate 
509200; thence south following UTM NAD27 coordinates 509200, 3602900; 
509000, 3602900; 509000, 3602800; 509100, 3602800; 509100, 3602700; 
508200, 3602700; 508200, 3603200; 508100, 3603200; 508100, 3603400; 
508000, 3603400; 508000, 3603600; 508100, 3603600; 508100, 3603700; 
508200, 3603700; 508200, 3603800; 508400, 3603800; 508400, 3604000; 
returning to the point of beginning on the CSDMjA boundary at UTM NAD27 
y-coordinate 3604000.
    (iv) Note: Unit 3 map follows:
    [GRAPHIC] [TIFF OMITTED] TR10DE02.003
    
* * * * *

    Dated: November 29, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-30890 Filed 12-9-02; 8:45 am]
BILLING CODE 4310-55-P