[Federal Register Volume 68, Number 52 (Tuesday, March 18, 2003)]
[Rules and Regulations]
[Pages 12834-12863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6133]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG96


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for Delphinium bakeri (Baker's larkspur) and Delphinium 
luteum (yellow larkspur). We are designating 2 units totaling 
approximately 740 hectares (ha) (1,828 acres (ac)) for D. bakeri, and 4 
units totaling approximately 1,022 ha (2,525 ac) for D. luteum, in 
Marin and Sonoma counties, California. The total critical habitat for 
both plants is approximately 1,762 ha (4,353 ac) in 6 units. This 
critical habitat designation provides additional protection under 
section 7 of the Act with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 4 of the Act requires us to 
consider economic and other relevant impacts when specifying any 
particular area as critical habitat. We solicited data and comments 
from the public on all aspects of this proposal, including data on 
economic and other impacts of the designation.

DATES: This rule becomes effective on April 17, 2003.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for

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public inspection, by appointment, during normal business hours at the 
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
2800 Cottage Way, Suite W-2605, Sacramento, CA 95825.

FOR FURTHER INFORMATION CONTACT: Glen Tarr or Susan Moore, Sacramento 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, at the above 
address (telephone 916/414-6600; facsimile 916/414-6710).

SUPPLEMENTARY INFORMATION:

Background

    Delphinium bakeri is a perennial herb in the buttercup family 
(Ranunculaceae). Ewan (1942) described Delphinium bakeri based on type 
material collected by Milo Baker in 1939 from ``Coleman Valley, Sonoma 
Co., California.'' In the most recent treatment, Warnock (1997) 
retained the taxon as a full species. It grows from a thickened, tuber-
like, fleshy cluster of roots. The stems are hollow, erect, and grow to 
65 centimeters (cm) (26 inches (in)) tall. Shallowly five-parted leaves 
occur primarily along the upper third of the stem and are green (as 
opposed to withering) at the time the plant flowers. The flowers are 
irregularly shaped. The five sepals (members of the outermost set of 
flower parts) are conspicuous, bright dark blue or purplish, with the 
rear sepal elongated into a spur (hollow, often cone-shaped, 
projection). The inconspicuous petals occur in two pairs. The lower 
pair is oblong and blue-purple; the upper pair is oblique (having 
unequal sides or an asymmetric base) and white. Seeds are produced in 
several dry, many-seeded fruits, which split open at maturity on only 
one side (i.e., follicles). D. bakeri flowers from April through May 
(Warnock 1993). D. bakeri can be differentiated from other members of 
the genus by its crenate leaf margins (margins notched or scalloped so 
as to form rounded teeth), leaves that are not withering at time of 
flowering, and flowers that are loosely arranged (California Native 
Plant Society (CNPS) 1977).
    Delphinium bakeri has only been known from three locations: Coleman 
Valley in southern Sonoma County, near the town of Tomales in northern 
Marin County, and approximately 10 km (6 mi) east of Tomales Bay in 
northern Marin County (California Natural Diversity Database (CNDDB) 
2001). D. bakeri is thought to have been extirpated from Coleman Valley 
sometime prior to 1986, and from the site near Tomales, where the 
species has not been relocated since 1925 (CNDDB 2001). At the only 
known extant (currently existing, not extirpated or destroyed) 
population, approximately 10 km (6 mi) east of Tomales Bay, the number 
of individuals has varied from 0 to 67 individuals over the last 20 
years (CNDDB 2001).
    Delphinium bakeri occurs on decomposed shale. The sites where it is 
found range from 90 to 205 meters (m) (295 to 672 feet (ft)) in 
elevation (CNDDB 2001). The collection from the type locality (the 
location where the species was first described) in Coleman Valley was 
described by Joseph Ewan as growing ``along fence rows and in heavy low 
brush'' (Ewan 1942). Two species listed as growing with D. bakeri at 
the type locality were Potentilla elata (now known as Horkelia 
californica ssp. dissita (California honeydew)) and Ranunculus 
orthorynchus (straightbeak buttercup) (Ewan 1942). No information is 
reported for the associated species or habitat for the other occurrence 
near Tomales that is thought to be extirpated (CNDDB 2001).
    The single extant occurrence of Delphinium bakeri grows in mesic 
(moderate moisture) conditions along an extensive north-facing slope 
under an overstory that includes Umbellularia californica (California 
bay), Aesculus californica (California buckeye), and Quercus agrifolia 
(coastal live oak). Other native plants associated with D. bakeri at 
this site include: Baccharis pilularis ssp. consanguinea (coyotebrush), 
Symphorcarpos cf. rivularis (snowberry), Rubus ursinus (California 
blackberry), Pteridium aquilinum (braken fern), Polystichum munitum 
(sword fern), Pityrogramma triangularis (goldback fern), Dryopteris 
arguta (coastal woodfern), Adiantum jordanii (maidenhair fern), 
Polypodium glycyrrhiza (licorice fern), Toxicodendron diversilobum 
(poison oak), Ceanothus thyrsiflorus (blueblossom ceanothus), 
Lithophragma affine (woodland star), and Holodiscus discolor 
(oceanspray) (J. Koontz, Center for Biodiversity, in litt., 2002; CNDDB 
2001). These plants are important indicators of remaining areas of 
natural habitat that support D. bakeri, and are likely to support 
ecological processes such as water retention, shading, nitrogen 
processing, and other factors that create suitable habitat conditions 
for D. bakeri. The property is privately owned, but Sonoma County has a 
right-of-way along the road. Pollinators have not specifically been 
identified for D. bakeri, but pollinators for species in the genus 
Delphinium typically are large hymenoptera, especially Bombus ssp. 
(bumblebees) (Guerrant 1978).
    In 1942, Ewan noted that the habitat of Delphinium bakeri was 
formerly more abundant, but had been reduced by cultivation (Ewan 
1942). Habitat conversion, grazing, and roadside maintenance activities 
are cited as the reasons for the decline of the species, and two of the 
three known occurrences of D. bakeri in Marin and Sonoma counties, 
including the occurrence at the type locality in Coleman Valley, have 
been extirpated (California Department of Fish and Game (CDFG) 1994). 
The single location where D. bakeri is known to remain extant is 
threatened by road work, such as right-of-way maintenance (including 
use of herbicides), overcollection, and sheep grazing (CNDDB 2001). For 
example, many plants were accidentally mowed by a county road 
maintenance crew in May 2002 (J. Koontz, in litt., 2002). Because of 
the restriction in its range to a single population and the small 
population size of the one remaining occurrence, D. bakeri is extremely 
vulnerable to extinction from random natural events, such as unseasonal 
fire or insect outbreaks (Shaffer 1981; Primack 1993).
    Delphinium luteum is a perennial herb in the buttercup family 
(Ranunculaceae). Heller (1903) described D. luteum based on type 
material collected from ``grassy slopes about rocks, near Bodega Bay, 
along the road leading to the village of Bodega'' in Sonoma County. 
Although Jepson (1975) reduced D. luteum to a variety of D. nudicaule 
(red larkspur), it is currently recognized as a full species (Warnock 
1993). D. luteum grows from thin tuberous roots up to 30 cm (12 in) 
long to a height of 55 cm (22 in) tall. The leaves are mostly basal, 
fleshy, and green at the time of flowering. The flowers are cornucopia-
shaped. The five conspicuous sepals are bright yellow, with the 
posterior sepal elongated into a spur. The inconspicuous petals occur 
in two pairs. The upper petals are narrow and unlobed; the lower petals 
are oblong to ovate (egg-shaped). The fruit is a follicle. D. luteum 
flowers from March to May. The species is distinguished from other 
Delphinium by its yellow flowers and its erect seed follicles (CNPS 
1977). In contrast to typical pollinators for the genus Delphinium, 
potential pollinators for D. luteum are Allen's hummingbirds 
(Selasphorus sasin), which have been observed visiting D. luteum 
flowers. In addition, the flower shape and sucrose-dominated nectar are 
consistent with characteristics of species that are typically 
pollinated by hummingbirds (Guerrant 1978).
    Delphinium luteum inhabits coastal prairie and coastal scrub areas, 
which typically have no overstory vegetation, at elevations ranging 
from sea level to

[[Page 12836]]

about 100 m (300 ft) within northwestern Marin and southwestern Sonoma 
counties, California (CNDDB 2001). The species occurs on moderate to 
steep slopes, generally near areas showing evidence of some level of 
ground disturbance in the past, including landslides (Guerrant 1978, 
CNDDB 2001). Roots of D. luteum are tuberous, long, and thin, an 
unusual combination in this genus, which may provide an advantage in 
thin, unstable soils (Weaver 1919 as cited in Guerrant 1978). Typical 
soil types supporting D. luteum include the Kneeland series in Sonoma 
County and the Yorkville series in Marin County. These soils derive 
from sandstone or shale, and share qualities of rapid runoff and high 
erosion potential (U.S. Department of Agriculture 1972; Soil 
Conservation Service (SCS) 1985). The most recently documented 
populations of D. luteum (those seen in the 1980s or later) tend to 
grow on north-facing slopes in canyon complexes with steep sides (LSA 
Associates (LSA) 1997; CNDDB 2001). Presumably the more shaded north-
facing slopes provide a more moist microclimate than slopes facing 
other directions, while the steep-sloped canyon walls increase the 
likelihood of erosion and landslides in the vicinity. Two potential 
exceptions to this trend are evident (CNDDB 2001): one population near 
Tomales, California, is mapped on a south-facing slope, and a 
relatively nearby population does not appear to grow near any steep-
sloped canyon walls. Both of these populations are in critical habitat 
Unit L4, described below. The first population has not been documented 
since 1983, and its mapped location is precise to a 0.32 km (0.20 mi) 
radius. This could put its actual location across the canyon on a 
north-facing slope. The other population is growing in a road cut, 
which might provide erosional and soil disturbance characteristics 
similar to those near canyon walls (CNDDB 2001).
    Temperatures in the region inhabited by Delphinium luteum are 
moderated by fog. As a result, the summers are relatively cool and 
winters are relatively warm compared to inland habitats.
    Much of the coastal prairie in this species' range has been grazed 
by livestock for over a century, and is now characterized by a mixture 
of nonnative annuals and forbs and native prairie plants. Native plants 
typically occurring with D. luteum include Arabis blepharophylla (rose 
rockcress), Calochortus tolmei (Tolmei startulip), Mimulus aurantiacus 
(orange bush monkeyflower), Dudleya caespitosa (sea lettuce), 
Polypodium californicum (California polyploidy), Eriogonum parviflorum 
(sea cliff buckwheat), Toxicodendron diversilobum (poison oak), 
Romanzoffia californica (California mistmaiden), Hesperevax sparsiflora 
(evax), Pentagramma triangularis (goldenback fern), and Sedum 
spathulifolium (broadleaf stonecrop) (CNDDB 2001; J. Koontz, in litt., 
2002;). These plants are important indicators of remaining areas of 
natural habitat that support D. luteum, and are likely to support 
ecological processes such as water retention, shading, nitrogen 
processing, and other factors that create suitable habitat conditions 
for D. luteum.
    We know of 12 occurrences of Delphinium luteum, 11 of which are 
documented in the CNDDB (CNDDB 2001). (The CNDDB defines an 
``occurrence'' of a plant species as a location where the species is 
present and which is separated from other such locations by at least 
0.40 kilometer (km) (1/4 mile (mi)). All occurrences of D. bakeri and 
D. luteum mapped by the CNDDB GIS data layers indicate single 
populations.) Since the early 1980s, however, only 6 of these 11 
occurrences have been documented (reported in the CNDDB or other 
reputable source). Of the other five occurrences in the CNDDB, three 
have not been documented since 1935 or earlier (two of which were 
revisited in the 1980s with negative results), another is based 
entirely on unsupported and undated information found on a 1979 map, 
and the fifth is a questionable identification never confirmed by a 
second sighting (CNDDB 2001). The six occurrences documented more 
recently in the CNDDB grow in three separate drainages, one in Sonoma 
County and two in Marin County. These groupings form the basis of three 
of the four critical habitat units we are proposing (see Units L1, L2 
and L4, below). The twelfth occurrence, not yet recorded in the CNDDB, 
occurs in a third Marin County drainage (Amme 1993; D. Amme, California 
Department of Transportation (CalTrans), in litt. 2002; D. Amme, pers. 
comm. 2002), and forms the basis of critical habitat Unit L3, as 
described below.
    Recent surveys have not found many plants in any of these 
populations. The largest number recorded by CNDDB is 134 plants for one 
of the Marin County populations in 1993. The total number of remaining 
individuals of Delphinium luteum currently is estimated at 100 to 175 
plants (J. Koontz, in litt., 2002). Each recently documented population 
faces one or more potential threats to its existence, including 
overcollection, road widening, inadequately managed sheep grazing, fire 
suppression, and hybridization with another Delphinium species (B. 
Guggolz, CNPS, pers. comm., 1995; CNDDB 2001). Additionally, the 
combination of few populations, small numbers of individuals within 
each population, narrow range, and restricted habitat makes D. luteum 
susceptible to extirpation in significant portions of its range from 
random natural events such as unseasonal fire, drought, disease, or 
other natural occurrences (Shaffer 1981; Primack 1993).

Previous Federal Action

    Federal actions on the two plant species began when the Secretary 
of the Smithsonian Institution, as directed by section 12 of the Act 
(16 U.S.C. 1531 et seq.), prepared a report on those native U.S. plants 
considered to be endangered, threatened, or extinct in the United 
States. This report, known as House Document No. 94-51, was presented 
to Congress on January 9, 1975, and included Delphinium bakeri and D. 
luteum as species the Smithsonian considered to be endangered. On July 
1, 1975, we published a notice in the Federal Register (40 FR 27823) 
accepting the report as a petition within the context of section 
4(c)(2) (now section 4(b)(3)) of the Act, and of our intention to 
review the status of the plant taxa named in the report. On June 16, 
1976, we published a proposed rule in the Federal Register (41 FR 
24523) determining approximately 1,700 vascular plant species, 
including D. bakeri and D. luteum, to be endangered species pursuant to 
section 4 of the Act. We assembled the list of 1,700 plant taxa on the 
basis of House Document No 94-51, our July 1, 1975, Federal Register 
publication (40 FR 27823), and comments and data received in response 
to both documents. General comments received in response to the 1976 
proposal were summarized in an April 26, 1978, Federal Register 
publication (43 FR 17909).
    In 1978, Congress passed amendments to the Act requiring us to 
withdraw all listing proposals more than 2 years old. The amendments 
included a 1-year grace period for proposed rules which already were 
more than 2 years old. On December 10, 1979, we published a notice in 
the Federal Register (44 FR 70796) withdrawing the portion of the June 
16, 1976, proposed rule that had not been made final, along with four 
other proposals that had expired. We published an updated Notice of 
Review (NOR) for plants on December 15, 1980 (45 FR 82480). This NOR 
included Delphinium bakeri and D. luteum as ``category 1 candidates'' 
(defined at that time as species for which data in our

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possession was sufficient to support proposals for listing).
    On February 15, 1983, we published a notice in the Federal Register 
(48 FR 6752) of our prior finding that the listing of Delphinium bakeri 
and D. luteum was warranted but precluded in accordance with section 
4(b)(3)(B)(iii) of the Act. Pursuant to section 4(b)(3)(C)(i) of the 
Act, such findings must be recycled annually, until the species is 
either proposed for listing or the petitioned action is found to be not 
warranted. Each October from 1983 through 1994, further findings were 
made that the listing of D. bakeri and D. luteum were warranted, but 
that the listing of these species was precluded by other pending 
proposals of higher priority.
    On November 28, 1983, we published a supplement to the plant NOR 
(48 FR 53640). This supplement changed Delphinium bakeri and D. luteum 
from ``category 1'' to ``category 2 candidates'' (defined at the time 
as species for which data in our possession indicated listing was 
possibly appropriate, but for which substantial data on biological 
vulnerability and threats were not currently known or on file to 
support proposed rules).
    The plant NOR was revised again on September 27, 1985 (50 FR 
39526). Delphinium bakeri and D. luteum were included as category 2 
candidates. Another revision of the plant NOR was published on February 
21, 1990 (55 FR 6184). In this revision D. bakeri and D. luteum were 
included as category 1 candidates, and remained as category 1 
candidates in the plant NOR published on September 30, 1993 (58 FR 
51144). Upon publication of the February 28, 1996, NOR (61 FR 7596), we 
ceased using category designations and included D. bakeri and D. luteum 
as candidate species. We define candidate species as those for which we 
have on file sufficient information on the biological vulnerability and 
threats to support proposals to list them as threatened or endangered. 
On June 19, 1997, we published a proposed rule in the Federal Register 
(62 FR 33383) to list D. bakeri and D. luteum as endangered.
    On June 17, 1999, our failure to issue final rules for listing 
Delphinium bakeri and D. luteum and seven other plant species as 
endangered or threatened, and our failure to make a final critical 
habitat determination for the nine species, was challenged in Southwest 
Center for Biological Diversity and California Native Plant Society v. 
U.S. Fish and Wildlife Service and Bruce Babbitt (Case No. C99-2992 
(N.D.Cal.)). We subsequently published a final rule listing D. bakeri 
and D. luteum as endangered species on January 26, 2000 (65 FR 4156). 
On May 22, 2000, the judge signed an order requiring us to propose 
critical habitat for the two species by September 30, 2001. The court 
subsequently extended this deadline to June 10, 2002, based on a 
settlement agreement reached on October 1, 2001 (Center for Biological 
Diversity, et al., v. Gale Norton, et al. (D.D.C.) (Case. No. Civ. 01-
2063)). The agreement also established March 10, 2003, as the date by 
which we would reach a final critical habitat determination for the 
species.
    We published a proposed critical habitat designation for Delphinium 
bakeri and D. luteum in the Federal Register on June 18, 2002 (67 FR 
41367). Publication of the proposed rule opened a 60-day public comment 
period, which closed on August 19, 2002. On November 1, 2002, we 
published a notice announcing the availability of our draft economic 
analysis of the proposed critical habitat designation (67 FR 66599). 
The notice opened a public comment period on the draft economic 
analysis, and reopened the comment period on the proposed critical 
habitat designation. This second public comment period lasted 
approximately 30 days, closing on December 2, 2002.

Summary of Comments and Recommendations

    In our June 18, 2002, proposed critical habitat designation (67 FR 
41367) we solicited comments from all interested parties on all aspects 
of the proposed rule, including information related to biological 
justification, economic impacts, proposed critical habitat boundaries, 
and proposed projects. In our November 1, 2002, notice of availability 
for the draft economic analysis (67 FR 66599), we invited comments on 
the draft analysis and on the proposed critical habitat designation. In 
addition to these Federal Register publications, we also sent 
notification letters to appropriate Federal, State, and local agencies, 
scientific organizations, and other interested parties and invited them 
to comment. We solicited independent peer review of the proposed 
designation from three botanists with applicable areas of expertise 
(see Peer Review section below). We also invited public comment through 
the publication of notices in three local newspapers: the Marin 
Independent Journal (June 26, 2002), the Santa Rosa Press Democrat 
(June 27, 2002), and the Point Reyes Light (July 3, 2002).
    Seven individuals, including one peer reviewer, responded with 
comments. One of those individuals initially requested a public 
hearing, but subsequently decided to meet instead with Sacramento Fish 
and Wildlife Office's Listing Branch personnel to submit his comments 
verbally. Four of the seven commenters indicated their overall support 
of the proposed designation, two were neutral, and one was opposed. We 
have reviewed all the comments we received for substantive issues and 
new information regarding Delphinium bakeri and D. luteum, and for 
potential impacts of the proposed critical habitat designation. The 
comments are addressed in the following summary.

Issue 1: Comments on the Biology of the Species

    (1) Comment: One commenter questioned whether Delphinium luteum 
qualifies as a valid species.
    Our Response: Although Jepson (1975) reduced Delphinium luteum to a 
variety of D. nudicaule, it currently is recognized as a full species 
(Warnock 1993). Guerrant (1978) proposed, based on morphological, 
ecological, and chemical characteristics, that D. luteum might have 
originated as a species from the hybridization of D. nudicaule (red 
larkspur) and D. decorum (yellowtinge larkspur). However, genetic 
testing by Koontz et al. (2001) has shown that if this did in fact 
occur, it was many generations ago, and that naturally occurring D. 
luteum cannot now be ``recreated'' simply by hybridizing D. nudicaule 
and D. decorum. Thus, the best available scientific information 
supports the recognition of D. luteum as a valid species.
    (2) Comment: One commenter argued that we lack evidence to 
conclude, with regard to Delphinium luteum, that ``sheep grazing, fire, 
water run, rock quarry activities, etc. are a threat, and that there is 
a need to restrict them * * * The commenter also mentioned a study by 
Richard Knight of Colorado State University which found grazing land to 
be an important resource for many native wildlife species.
    Our Response: The proposed critical habitat designation included 
``unmanaged sheep grazing'' and ``unseasonal fire'' among potential 
threats faced by Delphinium luteum (67 FR 41367, at 41369), not just 
``sheep grazing'' or ``fire.'' We did not list ``water run'' as a 
threat, and we are not aware of any populations currently being 
threatened by rock quarrying, although this has threatened populations 
in the past (Service 2000). The CNDDB (2001) lists sheep grazing as a 
threat for two of the three largest remaining occurrences of D. luteum, 
and specifically notes that flowers were

[[Page 12838]]

found to have been chewed off some of the plants. We recognize that 
properly controlled grazing can often benefit some native species by 
cropping back competing plants and by providing an incentive to avoid 
urban or agricultural development, but we also believe that overgrazing 
remains a threat for this species. The establishment of critical 
habitat is unlikely to restrict or affect grazing levels unless the 
activity has the involvement of a Federal agency, such as a permit or 
funding.
    (3) Comment: Another commenter referred to unmanaged sheep grazing 
as one of the main threats to Delphinium luteum. The commenter argued 
that the remaining population locations may be limited to the steeper 
and brushier north-facing slopes specifically because those are the 
places which sheep find most difficult to reach. This commenter 
recommended that critical habitat for D. luteum include ``the larger 
coastal prairie community with all the traversing canyons and 
watersheds,'' possibly the entire Marin Gap between Bodega Bay and the 
Bolinas Ridge, to encourage the future establishment of conservation 
easements that could eventually ease grazing pressures and allow D. 
luteum populations to expand back outward.
    Our Response: We agree that sheep grazing may be a key factor in 
restricting the species to north-facing slopes in some areas. We want 
to ensure it is understood, however, that although all but one recently 
documented population of D. luteum occurs on basically north-facing 
slopes, the species is not restricted to north-facing slopes. Slopes 
with other aspects can support the species, they support continuity 
within the units, and provide a range of microhabitat sites for 
potential expansion that is necessary for the conservation of the 
species. Therefore, we have redefined the primary constituent elements 
of the species to more clearly indicate that slope and aspect are 
separate requirements. Because areas within the defined units are 
considered critical habitat if they possess at least one of the primary 
constituent elements of the species, the treatment of slope and aspect 
as separate constituent elements will more clearly indicate our intent 
that critical habitat should include areas within each unit that are 
either steeply sloping or north aspected. However, we believe the 
possible historical impacts of sheep grazing on the range of Delphinium 
luteum are too speculative to support the expansion of the units beyond 
their current boundaries in the manner suggested by the commenter.
    (4) Comment: One commenter thought the Delphinium luteum units 
followed specific soil types too closely and should include more 
steeply sloped (30 percent or greater) areas with other sandstone or 
shale-based soil types. He specifically recommended the Tocaloma-Saurin 
hillsides within Unit L4 and within the Walker Creek watershed east of 
Unit L4. He also recommended including sloped areas of Tomales series 
soils between Units L2 and L3.
    Our Response: The reference to Kneeland and Yorkville series soils 
in the list of primary constituent elements for the species was meant 
as an example and not a limitation, so the areas in Unit L4 with 
Tocaloma-Saurin soils and slopes of 30 percent or greater do contain 
the primary constitutent element regarding soils, and we consider such 
areas to be included in our designation of critical habitat in Unit L4.
    In response to the recommendation regarding the areas between two 
of the proposed units, we considered expanding the critical habitat 
boundaries to include the Tocaloma-Saurin hillsides along Walker Creek 
and the Tomales series soils between units L2 and L3. Given our limited 
current knowledge of the species and its conservation requirements, 
however, and because we have no records of D. luteum growing in the 
suggested locations, we have little certainty that these areas would 
meet the definition of critical habitat (as defined in section 3(5)(A) 
of the Act) as areas on which are found physical and biological 
features that are essential to the conservation of the species. Within 
the geographical area occupied by the species, we designate only areas 
currently known to be essential, and consequently we do not believe it 
is appropriate to include the suggested areas in our designation of 
critical habitat for D. luteum.
    As further described in the section of this preamble entitled 
``Critical Habitat'' (below), we recognize that our designation of 
critical habitat may not include all of the habitat areas that might 
eventually be determined to be necessary for the conservation of the 
species. For these reasons, critical habitat designations do not signal 
that habitat outside the designation is unimportant or may not be 
required for recovery. Similarly, critical habitat designations made on 
the basis of the best available information at the time of designation 
will not control the direction and substance of future recovery plans, 
habitat conservation plans, or other species conservation planning 
efforts if new information available to these planning efforts calls 
for a different outcome. Also, as provided for by section 4(a)(3) of 
the Act, we can revise our designation of critical habitat in the 
future if it is appropriate to do so.

Issue 2: Site Specific Comments

    (5) Comment: Two commenters questioned the validity of the 
Delphinium luteum occurrence in Unit L3.
    Our Response: This occurrence was documented in Amme (1993), and 
reconfirmed by both discoverers (D. Amme, in litt. 2002; D. Amme, pers 
comm. 2002; C. Patterson, pers comm. 2003). It was also cited in a 
plant survey conducted in 1997 (LSA 1997), although that survey did not 
attempt to directly reconfirm the occurrence's existence. Mr. Amme is a 
biologist for CalTrans, while Mr. Patterson is a consulting botanist 
with over 20 years' experience. Although Mr. Amme has indicated some 
concern that the occurrence may have hybridized to some extent with 
another species, a small amount of genetic introgression would be 
unlikely to invalidate the protections of the Act (Service 1996 (61 FR 
4710)). Mr. Amme has mentioned to us the possibility that the 
occurrence could be a yellow-flowered hybrid of two other larkspur 
species: Delphinium nudicaule (red larkspur) and D. decorum (coast 
larkspur) (D. Amme, in litt., 2003). While this possibility cannot be 
conclusively ruled out, we believe that given the extremely few D. 
luteum occurrences remaining, in the absence of evidence to indicate 
the occurrence is not D. luteum, we must proceed on the assumption that 
it is. If future evidence demonstrates conclusively that this 
occurrence is not D. luteum, the critical habitat designation can be 
revised at that time.
    (6) Comment: Two commenters provided information regarding separate 
areas in Unit L3 that indicates the areas do not contain Delphinium 
luteum plants or appropriate habitat.
    Our Response: Although developed areas such as buildings, roads, or 
lawns may inadvertently be included within critical habitat boundaries, 
such areas generally do not have any of the primary constituent 
elements of the species, and so do not qualify as critical habitat. 
Where possible we prefer to exclude such areas directly, so we have 
redrawn Unit L3 to avoid the areas in question. See the ``Summary of 
Changes from Proposed Rule'' section below.
    (7) Comment: A commenter argued that Units L2 and L3 have been 
actively grazed or farmed for over 100 years and either they do not 
contain Delphinium

[[Page 12839]]

luteum or else D. luteum can coexist with current land uses, and 
therefore critical habitat designation in those areas is unnecessary.
    Our Response: Maps of grazing impact, habitat quality, and habitat 
type prepared as part of an ``Overview Summary'' for a planned golf 
ranch in the area in 1992 show extensive grazing impacts (Marin Coast 
Associates 1992). However, the maps also show areas with relatively 
high quality habitat, and the L2 and L3 Delphinium luteum occurrences 
fall within these areas. Hence, D. luteum apparently can coexist with 
sheep grazing in areas which are not heavily grazed.
    The Act defines critical habitat as areas on which are found 
physical and biological features essential to the conservation of the 
species and which may require special management considerations or 
protection. We believe that the occurrences in Units L2 and L3 are 
areas with features essential to the conservation of the species, and 
we also believe they may need special management considerations to 
survive despite having persisted to this point, because they remain 
subject to the various threats as described above. While critical 
habitat designation imposes no special management requirements on 
private landowners, it does require Federal agencies to take the 
species' habitat needs into account whenever their actions might 
adversely modify the habitat. It also alerts the public to the 
importance of the area for the species, thereby making it easier for 
landowners to obtain support or compensation from public or private 
sources for special management actions they are willing to take.
    (8) Comment: A commenter stated that Units L2 and L3 need ground 
truthing to see if Delphinium luteum plants are still there.
    Our Response: Based on consideration of the best available 
information, we have determined that Units L2 and L3 meet the 
definition of critical habitat. In general, more ground truthing would 
be helpful, but we are limited by our inability to enter private 
property without permission. In the case of Units L2 and L3, we have 
requested permission from one owner but have not received an answer. 
Ground truthing would be useful to ascertain further the value of the 
habitat for Delphinium luteum. Plants may be missed if they are not 
mature and flowering, and a seed bank may be present even when mature 
plants are not.

Issue 3: Legal and Procedural Comments

    (9) Comment: A commenter recommended that we provide more accurate 
maps of unit boundaries and more background information on field 
reconnaissance work.
    Our Response: The maps we publish are limited by the printing 
capabilities of the Federal Register and the Code of Federal 
Regulations. We can provide more accurate maps on request, however, as 
well as answer questions regarding field reconnaissance of particular 
areas. We also commonly publish maps and information on our Web page, 
http://sacramento.fws.gov. Because of private property considerations, 
our field reconnaissance was limited to habitat inspections made from 
public roads for Units B1, B2, L1, and L4, and at some other 
historically documented sites for Delphinium luteum which had not been 
confirmed since the early 1980s.
    (10) Comment: A commenter found the comment period too short and 
asked us to extend it.
    Our Response: As detailed above in the Previous Federal Action 
section, the initial comment period for the proposed rule lasted 60 
days, and was followed by a second 30-day comment period to allow 
comment on both the proposed rule and the draft economic analysis. 
These time periods are within the requirements of our regulations, and 
we believe they allow a reasonable time for comment. We were unable to 
reopen the comment period a third time because we are under a court 
imposed deadline to reach a final critical habitat determination by 
March 10, 2003.
    (11) Comment: One commenter argued that the Act requires us to make 
a draft economic analysis available prior to proposing critical 
habitat.
    Our Response: Section 4(b)(2) of the Act requires us to ``designate 
critical habitat * * * after taking into consideration the economic 
impact, and any other relevant impact, of specifying any particular 
area as critical habitat.'' We interpret this to mean the economic 
analysis must precede the final critical habitat designation, not the 
proposed designation. It would not be possible for us to weigh the 
economic impacts of a designation which we had not yet proposed, since 
the projected costs of critical habitat depend on the location and size 
of the areas which may be designated. We made the draft economic 
analysis available for review, and accepted comments on it, from 
November 1 to December 2, 2002.
    (12) Comment: A commenter pointed out that we had not provided a 
map showing the locations of Delphinium bakeri and D. luteum 
occurrences, or the number of plants and date observed for each 
occurrence.
    Our Response: We have access to much of this information through a 
use agreement with the CNDDB database, compiled and maintained by the 
CDFG. We do not believe it would be prudent for us to publish the exact 
locations of these plants because we might thereby facilitate 
collection or vandalism of them. We can provide more accurate maps on 
request, however, as well as answer questions regarding field 
reconnaissance of particular areas.
    (13) Comment: A commenter argued that the California Environmental 
Quality Act (CEQA) requires us to complete an Environmental Impact 
Report for this critical habitat designation because it could result in 
a change in agricultural use.
    Our Response: CEQA only applies to discretionary projects of State 
or local public agencies (Cal. Pub. Res. Code Sec. Sec.  21063, 
21080(a)).
    (14) Comment: A commenter who had difficulty accessing the economic 
analysis on our website claimed this constituted a failure to make the 
information readily accessible, in violation of the Federal Data 
Quality Act. The commenter clarified in a separate e-mail that he was 
referring to the Service Information Quality Guidelines.
    Our Response: The Information Quality Guidelines (Guidelines) (67 
FR 64407) concern the accuracy of information disseminated by our 
agency. They are not violated by a failure of our ability to 
disseminate the information over the Internet on a particular day. 
Additionally, the Guidelines are intended to improve the internal 
management of information quality and do not create an enforceable 
legal right or benefit (67 FR 64407). The notice of availability of the 
draft economic analysis which we published in the Federal Register (67 
FR 22404) provided contact information for personnel from our office 
who could have provided assistance.

Issue 4: Comments on the Economic Analysis

    (15) Comment: A commenter stated that critical habitat designation 
causes a loss in property values which the economic analysis fails to 
take into account. The commenter suggested that the analysis might have 
quantified some of the lost land value by totaling the number of acres 
of grazing land affected, since such lands have a specific grazing 
value per acre. The commenter also stated that the economic analysis 
did not attempt to quantify ``the most basic economic effects a 
critical habitat designation will cause.''

[[Page 12840]]

    Our Response: The commenter suggested that critical habitat 
designation and Federal listing restricts grazing activities which, in 
turn, reduces property values. In this situation, grazing activities 
are not expected to be changed by critical habitat designation or 
Federal listing because there are no section 7 requirements triggered 
specifically by private landowner grazing activities in the areas being 
designated as critical habitat. Although the implementation of section 
7 regulations is not likely to reduce the value of land designated as 
critical habitat, uncertainty about the scope and impact of the 
designation may cause the areas to be temporarily stigmatized. Because 
public uncertainty about the section 7 process is often heightened 
immediately after critical habitat designation, stigma associated with 
the proposed designation may cause a reduction in a willingness-to-pay 
for the land. This, in turn, can result in a reduced land value. By 
definition, stigma effects are associated with perceived regulatory or 
land-value effects as opposed to actual regulatory or land-value 
effects. As explained in the final economic analysis, once the public 
understands the actual effect of critical habitat, any stigma 
associated with the area may be greatly reduced or even disappear. 
While stigma effects are solely attributable to critical habitat 
designation, the impacts are generally difficult to quantify. 
Therefore, a count of grazing acres within critical habitat would not 
have helped to quantify property values lost due to stigma effects.
    Critical habitat designation and Federal listing of species do not 
impose on a private landowner any additional costs if future land uses 
are not changed by the designation and listing. The economic analysis 
concluded that because of county land use restrictions, no future 
development would occur in the areas we are designating as critical 
habitat. The county land use restrictions are independent of our 
designation of critical habitat. No section 7 consultation requirements 
are expected to be triggered within Marin County habitat units due to 
development.
    The commenter also stated that the economic analysis did not 
attempt to quantify ``the most basic economic effects a critical 
habitat designation will cause.'' The intent of this statement is not 
entirely clear to us, and it may have been meant to reiterate the point 
discussed above, namely that the concern the economic analysis did not 
quantify possible losses in property value. Alternatively, the comment 
may be interpreted as being intended to point out that the economic 
benefits of critical habitat designation remained unquantified in the 
analysis, so we also are responding to that possible concern. We 
typically report all quantified benefits of critical habitat 
designation if there are peer reviewed and published studies estimating 
benefits, and if these studies use a relatively sound methodology. 
Because no such studies exist for Delphinium bakeri and D. luteum, the 
draft economic analysis discusses these benefits in qualitative terms, 
but does not provide a numerical estimate of their value. The section 
of this preamble entitled ``Critical Habitat'' (below) also addresses 
the benefits of designating critical habitat.
    (16) Comment: A commenter stated that the draft economic analysis 
did not consider additional development plans in the designated 
critical habitat units located in Marin County.
    Our Response: We consulted with officials of the Marin County 
Community Development Department (CDD) in an effort to obtain the most 
current and comprehensive information about the likelihood of future 
planned and proposed development within areas that were proposed for 
critical habitat. CDD officials confirmed that no development 
applications had been submitted for the critical habitat units in Marin 
County, and that future development is unlikely due to lack of utility 
infrastructure, distance to jobs and basic supplies, and agricultural 
zoning restrictions established by the Marin County General Plan.
    (17) Comment: Two commenters mentioned that the economic analysis 
failed to account for costs associated with the treatment of critical 
habitat by State and local requirements such as the California 
Environmental Quality Act (CEQA) and the general plan for Marin County.
    Our Response: The comments could be interpreted as expressing 
concern over the potential costs to landowners, or the concern may have 
been the potential costs to State and local governments of revising 
documents such as the county general plan to reflect critical habitat 
designation. We are responding to both of these potential 
interpretations. Critical habitat designation is not likely to affect 
the content or implementation of Marin County's General Plan, nor will 
it result in additional review under CEQA. Zoning and land use 
designations were determined prior to the proposed designation of 
critical habitat, and our rulemaking is unlikely to trigger any 
revisions of the General Plan. According to section 15065 (California 
Code of Regulations Title 14, Chapter 3) of CEQA guidelines, an 
environmental impact report (EIR) is required by local lead agencies, 
when, among other things, a project has the potential to ``reduce the 
number or restrict the range of an endangered, rare or threatened 
species.'' Although federally listed species are presumed to meet the 
CEQA definition of ``endangered, rare or threatened species'' under 
section 15380 (California Code of Regulations Title 14, Chapter 3), few 
additional constraints should result from the designation of critical 
habitat beyond those now in place as a result of the earlier listing of 
Delphinium bakeri and D. luteum as endangered species. Only if loss or 
degradation of the proposed project site's habitat resources (viewed 
comprehensively) are determined to be significant will significant 
impacts to habitat be analyzed and mitigation, where feasible, be 
planned as part of a project. Because officials from the CDD confirmed 
that no new development applications are anticipated for the proposed 
Marin County habitat units, no EIRs are likely to be prepared. 
Therefore, neither landowners nor State or local governments are likely 
to experience additional costs anticipated by the commenters.
    (18) Comment: A commenter questioned why the draft economic 
analysis does not account for impacts of critical habitat designation 
on existing land uses such as stock pond maintenance and quarry 
operations.
    Our Response: Federal assistance for stock pond maintenance is 
sponsored by the Natural Resource Conservation Service (NRCS), an 
agency in the U.S. Department of Agriculture (USDA). However, no 
consultations have occurred with the Service in the past for NRCS 
programs that provide assistance for stock pond maintenance. Therefore, 
based on the consultation history, this analysis assumes that the NRCS 
will continue its current operating procedures and is unlikely to 
consult with us on these types of activities in the future. As stated 
in the draft economic analysis, other programs sponsored by NRCS, 
namely technical and financial assistance to landowners for erosion and 
flood control projects, have a consultation history, and economic 
impacts of section 7 regulations for those activities have been 
estimated.
    The U.S. Environmental Protection Agency requires under the Clean 
Water Act (33 U.S.C. 1251 et seq.), that a private landowner obtain a 
National Pollutant Discharge Elimination Program permit for any quarry 
operation that may result in a point source discharge of a pollutant 
into waters of

[[Page 12841]]

the United States. The commenter gave no specific mention of actual 
quarries, and, after consulting with an official at Region 2 of the 
California Water Quality Control Board, we are not aware of any 
quarries on or near the habitat units proposed for Marin County. Hence, 
no consultations or project modifications are likely to occur as no 
plans exist for additional quarries.
    (19) Comment: A commenter thought the economic analysis should 
include the cost of suing us for improperly designating critical 
habitat.
    Our Response: We have followed all of the legal requirements 
pertaining to the designation of critical habitat and believe we have 
made the designation properly, and consequently do not believe it is 
necessary or appropriate to engage in speculation regarding the 
potential for litigation and costs that might be associated with it. It 
is possible that litigation may be initiated in response to the 
rulemaking and if that happens, the court will determine whether the 
plaintiff(s) should be reimbursed for any of the costs of litigation, 
and if so, what the level of reimbursement should be.
    (20) Comment: A commenter thought we should try to balance the 
economic impacts of the designation against the benefit to the species.
    Our Response: In designating critical habitat, section 4(b)(2) of 
the Act requires us to take into consideration the economic impact, and 
any other relevant impact, of specifying any particular area as 
critical habitat, and allows us to exclude any area if the benefits of 
exclusion outweigh the benefits of designation, unless we determine 
that the failure to designate such an area will result in the 
extinction of the species. We have estimated the costs associated with 
the critical habitat designation in our economic analysis, and do not 
find that the benefits of exclusion, as indicated by the avoided costs, 
would outweigh the benefits to the species of designating the six units 
of critical habitat.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from three 
knowledgeable individuals with expertise in one or several fields, 
including familiarity with the species, familiarity with the geographic 
region in which the species occurs, and familiarity with the principles 
of conservation biology. One of the three reviewers responded, 
providing us with comments that are summarized here.
    Overall the peer reviewer supported the designation, finding that 
the proposed rule ``is well written and appears justified'' (J. Koontz, 
in litt., 2002). He provided us with information regarding further 
habitat southeast of Unit L1 which appears to contain the primary 
constituent elements for Delphinium luteum. Although we do not believe 
that, in the absence of any new occurrences of the plant, the extension 
of the unit to include this area is essential to the conservation of 
the species at this time, we will keep the area in mind while 
developing a recovery plan. We will evaluate the value of this area for 
species recovery during the development of the recovery plan for these 
species.
    The peer reviewer also suggested certain changes and additions 
which we have incorporated into the Background, Primary Constituent 
Elements, and Critical Habitat Designation sections of the rule, as 
appropriate. These changes include an updated estimate of the number of 
plants remaining, a more inclusive list of community associates for 
Delphinium bakeri and D. luteum, information regarding the mowing of 
the D. bakeri population in May 2002, and information regarding the 
possible hybrid origin of D. luteum. He also included updated or 
corrected citations for some of the points made in the proposed rule, 
and provided useful background information and opinion, such as contact 
information for other species experts and an overview of the costs and 
benefits to the species of designating critical habitat in the amounts 
proposed. Finally, he emphasized the importance of field reconnaissance 
and questioned the extent to which we were able do this for the 
proposed units. We addressed this comment in our responses to comments 
8 and 9.

Summary of Changes From the Proposed Rule

    In response to comment 3 (above) we redefined the primary 
constituent elements of the species to more clearly indicate that slope 
and aspect are separate requirements. Based on comment 6 (above), we 
refined our mapping with the result of eliminating approximately 24 ha 
(60 ac) of land proposed to be designated for Unit L3. The eliminated 
areas include the northernmost peninsular area of the unit, which 
contains several buildings and is heavily silted, and another 
peninsular area at the southwestern end of the unit, which contains a 
wastewater treatment and disposal system. These areas do not contain 
Delphinium bakeri and D. luteum plants, nor do they contain the primary 
constituent elements for these species. We have also incorporated 
changes suggested by our peer reviewer (see Peer Review section above).

Critical Habitat

    Section 3 of the Act defines critical habitat as--(i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed in accordance with the provisions of section 4 of the Act, 
on which are found those physical or biological features (I) essential 
to the conservation of the species and (II) which may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by a species at the time it is 
listed in accordance with section 4 of this Act, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation,'' as defined by the Act, means the use of all methods 
and procedures that are necessary to bring an endangered or a 
threatened species to the point at which listing under the Act is no 
longer necessary.
    Section 7(a)(2) of the Act requires that Federal agencies shall, in 
consultation with us, insure that any action they authorize, fund, or 
carry out is not likely to jeopardize the continued existence of a 
listed species or result in the destruction or adverse modification of 
critical habitat. Section 7 also requires conferences on Federal 
actions that are likely to jeopardize the continued existence of any 
species proposed to be listed or result in the destruction or adverse 
modification of critical habitat proposed to be designated for such 
species. Aside from the added protection that may be provided under 
section 7, the Act does not provide other forms of protection to lands 
designated as critical habitat. Consultation under section 7 of the Act 
does not apply to activities on private or other non-Federal lands that 
do not involve a Federal nexus, and consequently critical habitat 
designation does not afford any additional regulatory protection under 
the Act under those circumstances.
    Critical habitat also provides non-regulatory benefits to the 
species by informing the public and private sectors of areas that are 
important for species recovery, and where conservation actions would be 
most effective. Designation of critical habitat can help focus 
conservation activities for a listed species by identifying areas that 
contain the physical and biological features essential for the 
conservation of that species, and can alert the public, as well as 
land-managing agencies, to the importance of those areas. Critical

[[Page 12842]]

habitat also identifies areas that may require special management 
considerations or protection, and may help provide protection to areas 
where significant threats to the species have been identified, by 
helping people to avoid causing accidental damage to such areas.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)). Section 3(5)(C) of the Act states that not all areas that 
can be occupied by a species should be designated as critical habitat 
unless the Secretary determines that all such areas 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 geographical area presently occupied by the species 
only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species.''
    Section 4 of the Act requires that we designate critical habitat 
based on what we know at the time of designation. Habitat is often 
dynamic and species may move from one area to another over time. We 
recognize that our designation of critical habitat may not include all 
of the habitat areas that may eventually be determined to be necessary 
for the conservation of the species. For these reasons, critical 
habitat designations do not signal that habitat outside the designation 
is unimportant or may not be required for recovery. Areas that support 
newly discovered populations in the future, but are outside the 
critical habitat designation, will continue to be subject to 
conservation actions implemented by Federal agencies under section 
7(a)(1) of the Act, and to the regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the section 9 prohibitions, as 
determined on the basis of the best available information at the time 
of the action. Federally funded or assisted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome.
    Within the geographical area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation. Within the 
geographical area occupied by the species, we will attempt to avoid 
designating areas that do not now have the primary constituent 
elements, as defined at 50 CFR 424.12(b), which provide essential life 
cycle needs of the species. However, we may be restricted by our 
minimum mapping unit or mapping scale.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should, at a minimum, be the listing package for the 
species. Additional information may be obtained from a recovery plan, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments or other unpublished materials, and discussions with 
experts.

Methods

    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12, we used the best scientific information available to determine 
areas that contain the physical and biological features that are 
essential for the conservation of Delphinium bakeri and D. luteum. We 
reviewed available information that pertains to the habitat 
requirements of these species, including data from research and survey 
observations; regional Geographic Information System (GIS) coverages 
(e.g., soils, known locations, vegetation, land ownership); information 
from herbarium collections such as CalFlora ((http://www.calflora.org); 
data from CNDDB (2001); and data collected from project-specific and 
other miscellaneous reports submitted to us. This included information 
from our final rule listing D. bakeri and D. luteum as endangered (65 
FR 4156), the CNDDB (2001), soil survey maps (SCS 1972, 1985), 
certified soil GIS layers for Marin County, geologic formation maps, 
1993 digital orthophotoquarterquads, and discussions with botanical 
experts who have worked closely with these plant species. We also 
conducted site visits at one historical occurrence of D. bakeri and 
five historical occurrences of D. luteum as well as one extant 
occurrence of D. bakeri and three extant occurrences of D. luteum (to 
the extent we could visit the habitat without going onto private land).

Mapping

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

[[Page 12843]]

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas to propose as critical 
habitat, we consider those physical and biological features 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, the following:
    (1) Space for individual and population growth, and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, rearing of offspring, 
germination, or seed dispersal; and generally;
    (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    Our regulations at 50 CFR 424.12(b) further direct that when 
considering the designation of critical habitat, we are to focus on the 
principal biological or physical constituent elements within the 
defined area that are essential to the conservation of the species, and 
we are to list known primary constituent elements with the critical 
habitat description. Our regulations describe known primary constituent 
elements in terms that are more specific than the description of 
physical and biological features. Specifically, primary constituent 
elements may include, but are not limited to, the following: roost 
sites, nesting grounds, spawning sites, feeding sites, seasonal wetland 
or dryland, water quality or quantity, host species of plant 
pollinator, geological formation, vegetation type, tide, and specific 
soil types.
    All areas identified as critical habitat for Delphinium bakeri and 
D. luteum are within the historical range and contain one or more of 
the primary constituent elements that we have identified, based on the 
best available scientific information, as essential for the 
conservation of the species.
    Much of what is known about the specific physical and biological 
requirements of Delphinium bakeri and D. luteum is described in the 
Background section of this final rule. The designated critical habitat 
is designed to provide sufficient habitat to maintain self-sustaining 
populations of D. bakeri and D. luteum throughout their ranges, and to 
provide those habitat components essential for the conservation of 
these species. These habitat components provide for: (1) Space for 
individual and population growth, including areas that allow gene flow 
and provide connectivity or linkage between populations including open 
spaces and disturbed areas that in some instances may also contain 
nonnative plant species; (2) areas that provide basic requirements for 
growth such as water, light, minerals; (3) sites for germination, 
pollination, reproduction, and seed dispersal; (4) areas that support 
populations of pollinators and seed dispersal organisms; and (5) 
habitats that are representative of the historic geographical and 
ecological distributions of each species.
    We believe the conservation of Delphinium bakeri and D. luteum is 
dependent upon a number of factors, including the conservation and 
management of sites where existing populations grow, the establishment 
of D. bakeri at a new location to provide insurance against stochastic 
(randomly occurring) events, the maintenance of normal ecological 
functions within these sites, and the preservation of the connectivity 
between sites to maintain recent levels of gene flow between sites 
through pollinator activity and seed dispersal agents. The areas we are 
designating as critical habitat provide some or all of the habitat 
components essential for the conservation of these two species.
    Based on our knowledge to date, the primary constituent elements of 
critical habitat for Delphinium bakeri consist of:
    (1) Soils that are derived from decomposed shale;
    (2) Plant communities that support associated species, including, 
but not limited to: Umbellularia californica (California bay), Aesculus 
californica (California buckeye), and Quercus agrifolia (coastal live 
oak), Baccharis pulularis ssp. consanguinea (coyotebrush), 
Symphorcarpos cf. rivularis (snowberry), Rubus ursinus (California 
blackberry), Pteridium aqulinum (braken fern), Polystichum munitum 
(sword fern), Pityrogramma triangularis (goldback fern), Dryopteris 
arguta (coastal woodfern), Adiantum jordanii (maidenhair fern), 
Polypodium glycyrrhiza (licorice fern), Toxicodendron diversilobum 
(poison oak), Ceanothus thyrsiflorus (blueblossom ceanothus), 
Lithophragma affine (woodland star), and Holodiscus discolor 
(oceanspray); and
    (3) Mesic (moderate moisture) conditions on extensive north-facing 
slopes.
    Based on our knowledge to date, the primary constituent elements of 
critical habitat for Delphinium luteum consist of:
    (1) Plant communities, including north coastal scrub or coastal 
prairie communities, including, but not limited to, species such as: 
Arabis blepharophylla (rose rockcress), Calochortus tolmei (Tolmei 
startulip), Mimulus aurantiacus (orange bush monkeyflower), Dudleya 
caespitosa (sea lettuce), Polypodium californicum (California 
polyploidy), Eriogonum parviflorum (sea cliff buckwheat), Toxicodendron 
diversilobum (poison oak), Romanzoffia californica (California 
mistmaiden), Hesperevax sparsiflora (evax), Pentagramma triangularis 
(goldenback fern), and Sedum spathulifolium (broadleaf stonecrop).
    (2) Relatively steep sloped soils (30 percent or greater) derived 
from sandstone or shale, with rapid runoff and high erosion potential, 
such as Kneeland or Yorkville series soils;
    (3) Generally north aspected areas; and
    (4) Habitat upslope and downslope from known populations to 
maintain disturbance such as occasional rock slides or soil slumping 
that the species appears to require.

Criteria Used to Identify Critical Habitat

    We identified areas on which are found physical and biological 
features essential for the conservation of Delphinium bakeri, based on 
consideration of the known primary constituent elements, in Marin 
County at the only location where the species currently is known to 
occur (Unit B2), as well as in the Coleman Valley area in Sonoma County 
(Unit B1), where the species was historically found. We are including 
the Coleman Valley site in our designation despite the apparent 
extirpation of D. bakeri from this location, because we believe the 
area is essential to the conservation of the species and still contains 
primary constituent elements for the species. The Coleman Valley unit 
encompasses the location where the species was first described, and it 
is one of very few locations where D. bakeri has ever been observed. We 
believe that reintroduction of D. bakeri at the Coleman Valley site is 
essential for the species' survival due to the extremely limited range 
of D. bakeri, its small population size (0 to 67 individuals over the 
last 20 years), and the high degree of threat from chance catastrophic 
events (Shaffer 1981, 1987; Primack 1993; Meffe and Carroll 1994). Such 
events are a concern when the number of populations or geographic 
distribution of a species is severely limited, as is the case with D. 
bakeri.

[[Page 12844]]

Establishment of a second location for D. bakeri is important in 
reducing the risk of extinction of the species due to such catastrophic 
events. Further, when considering establishment of new locations as 
part of meeting the conservation needs of a species, we believe it is 
appropriate to look first to reestablishing populations within the 
historic range of a species, especially specific areas where the 
species was once known to occur, rather than going to completely new 
areas. Our designation of critical habitat does not include the 
location near Tomales, California, however, because our information is 
too vague to accurately identify the site.
    We identified critical habitat for Delphinium bakeri by mapping the 
distribution of the known occurrences of the species with respect to 
distance from the coast, location within watersheds, soil series 
associations, aspect of the slopes and watersheds, position on slopes, 
our field observations of the soil conditions at each location, and our 
field observations of the plant associations found in the area of each 
location. We then drew an initial critical habitat demarcation that 
included the appropriate soils, vegetation, and watershed, consistent 
with our understanding of the physical and biological features and 
primary constituent elements that are essential for the conservation of 
this species. We mapped the critical habitat units to include the 
upslope and downslope areas that would be important to the maintenance 
of these features and related primary constituent elements essential 
for the conservation of the species.
    We identified areas with features essential to the conservation of 
Delphinium luteum in the locations where it is known to occur in Marin 
and Sonoma counties. Due to the limited number of populations of D. 
luteum and the high degree of threat from catastrophic events, we have 
determined that all areas with recently documented occurrences contain 
physical and biological features that are essential for the 
conservation of this species and are necessary and appropriate to 
designate as critical habitat. All four D. luteum units (L1, L2, L3, 
and L4) are within the geographical area currently occupied by the 
species, and D. luteum occurs in all four of the units. In addition, 
the Center for Plant Conservation (2002) recommends that additional 
populations be established and managed for this species. Some locations 
within these critical habitat units may be suitable sites for such 
introductions or for natural expansion of the existing populations.
    As a rule, we drew boundary lines for Delphinium luteum critical 
habitat units to include all areas of the same soil type and in the 
same canyon system as the enclosed population(s). Although all but one 
recently documented population of D. luteum occurs on basically north-
facing slopes, we consistently included as critical habitat both sides 
of the canyons which contain D. luteum. We did this because the folds 
and side canyons common to these sites can produce localized north 
aspected areas even on generally south aspected canyon walls, the 
species is not restricted to north-facing slopes, and south aspected 
slopes may support any of the other three primary constituent elements 
for this species. We did not extend critical habitat boundaries to 
deliberately include south aspected slopes unless they supported at 
least one of the other three primary constituent elements, although 
mapping limitations may have resulted in including a few such areas 
inadvertently. Including both sides of the canyons where the plant 
occurs also encompasses a wider range of microhabitats to support 
population growth. This approach also may have the benefit of making 
management of the units easier.
    Units L1, L2, and L4 contain features which caused us to modify 
somewhat our general rule of drawing boundaries based on the same soil 
type and canyon system as the known population. In Unit L3, the soil 
boundaries conformed well to the canyon boundaries, and also included 
areas of steep-sloped canyon walls, so no modification of what was 
drawn (based on application of the general rule described above) was 
appropriate or necessary. Unit L1 soil boundaries included several 
branching canyons with numerous coastal drainage outlets, so we 
included those canyons which drained roughly to the same location and 
did not include the others. In Unit L2, the soil boundaries conformed 
well to the drainage, but because the area enclosed was very small and 
unbranched, and because the same soil type also occurred with suitable 
habitat in a separate drainage less than half a mile away, we extended 
the boundaries of the unit to include the north-facing slopes of the 
second drainage as bounded by the suitable soil type. The resulting 
unit is still the smallest of the four designated for Delphinium 
luteum, and by including this small area of nearby habitat, we can 
provide the resident D. luteum population an opportunity to colonize a 
new area. Given the susceptibility of D. luteum populations to 
extirpation by random, uncontrollable events, the establishment of new 
populations is essential to the continuing survival of the species.
    Unit L4 contains the population growing in a road-cut away from 
steep-sloped canyon walls, as well as the population mapped on a south-
facing slope. It also includes a third population which is located in 
typical habitat, but which the CNDDB lists as ``possibly extirpated'' 
due to the inability of several surveys to relocate it since 1982. All 
three populations are mapped as growing on different soil types (CNDDB 
2001). However, with two exceptions, all soil types in the area share 
the rapid run-off and high erosion potential with which Delphinium 
luteum is associated. The two exceptions are the canyon floor and a 
small area at the head of the canyon where the walls are not steeply 
sloped. We are including these for contiguity of the unit and because 
both of them abut the location of the population located in the road 
cut. Taken together, the various soil types conform well to the main 
canyon boundaries (SCS 1985) and include all the habitat requirements 
of the species. Therefore, we have drawn Unit L4 largely according to 
the soil boundaries as they extend down the main canyon. We did not 
extend the unit up either of two large side canyons because those areas 
neither contain D. luteum populations nor a soil type common to all the 
populations in the unit.

Special Management Considerations

    Special management considerations or protections may be needed to 
maintain the physical and biological features and primary constituent 
elements that are essential for the conservation of Delphinium bakeri 
and D. luteum within the units being designated as critical habitat. In 
some cases, protection of existing habitat and current ecological 
processes may be sufficient to ensure that populations of the plants 
are maintained at those sites and have the ability to reproduce and 
disperse in surrounding habitat. In other cases, however, active 
management may be needed to maintain the primary constituent elements 
for the two species.
    As noted in the Critical Habitat section, ``special management 
considerations or protection'' is a term that originates in the 
definition of critical habitat. We believe the designated critical 
habitat units may require special management considerations or 
protection because remaining populations of Delphinium bakeri and D. 
luteum are extremely rare,

[[Page 12845]]

contain few individuals, and are subject to threats which could 
extirpate them. In addition to the risk due to random natural events 
that can result in the extinction of species with very few, small, and 
highly isolated populations, potential threats to the habitat of D. 
bakeri include overcollection, application of herbicides, and sheep 
grazing, and potential threats to the habitat of D. luteum include 
overcollection, road widening, sheep grazing, fire suppression, and 
hybridization. Currently, no legally operative plans or agreements have 
been developed that address the maintenance and improvement of the 
primary constituent elements important to the species, or that provide 
management for the long-term conservation of D. bakeri or D. luteum.
    We have outlined below the most likely kinds of special management 
and protection that the habitat features and primary constituent 
elements essential to the conservation of Delphinium bakeri and D. 
luteum may require. The following actions apply to both species, unless 
otherwise noted:
    (1) In all plant communities where these taxa occur, invasive, 
nonnative species need to be actively controlled;
    (2) The quality of water must be maintained to keep it free from 
levels of herbicides or other chemical or organic contaminants that 
would be deleterious to the species;
    (3) Certain areas where these species occur may need to be fenced 
to protect them from accidental or intentional trampling by humans and 
livestock;
    (4) Aerial application of herbicides and insecticides that are 
likely to be deleterious to the species needs to be curtailed in the 
critical habitat. Exposure to deleterious herbicides and insecticides 
from drift needs to be avoided;
    (5) The appropriate level of soil disturbance needs to be 
maintained (this applies only to Delphinium luteum); and
    (6) Existing hydrologic conditions may need to be protected by 
avoiding activities that cause a change in surface or subsurface water 
flows.

Critical Habitat Designation

    Lands designated as critical habitat areas described below contain 
physical or biological features essential to the conservation of 
Delphinium bakeri and D. luteum, including one or more of the primary 
constituent elements described above, and constitute our best 
assessment at this time of the areas which meet the Act's definition of 
critical habitat. The approximate areas of critical habitat by land 
ownership are shown in Table 1.

 Table 1.--Approximate Areas of Delphinium bakeri and D. luteum Critical
  Habitat in Hectares (ha) (Acres (ac)). All Critical Habitat for Both
                       Species Is on Private Lands
------------------------------------------------------------------------
              Species (unit)                        Private land
------------------------------------------------------------------------
D. bakeri (B1)............................  322 ha (796 ac)
D. bakeri (B2)............................  418 ha (1,032 ac)
-------------------------------------------
    Subtotal D. bakeri....................  740 ha (1,828 ac)
D. luteum (L1)............................  554 ha (1,369 ac)
D. luteum (L2)............................  133 ha (329 ac)
D. luteum (L3)............................  142 ha (351 ac)
D. luteum (L4)............................  193 ha (476 ac)
-------------------------------------------
    Subtotal D. luteum....................  1,022 ha (2,525 ac)
===========================================
    Total (both species)..................  1,762 ha (4,353 ac)
------------------------------------------------------------------------

    Critical habitat for Delphinium bakeri includes one unit in Marin 
County which contains the only currently known location of D. bakeri, 
and a second unit in Sonoma County we believe includes the type 
locality for the species. The second unit is essential because 
establishment of a second location for D. bakeri is important in 
reducing the risk of extinction of the species due to catastrophic 
events. Critical habitat for D. bakeri totals 740 ha (1,828 ac), with 
418 ha (1,032 ac) in Marin County and 322 ha (796 ac) in Sonoma County. 
Critical habitat for D. luteum includes four units. These units 
together contain all the D. luteum populations documented since the 
1980s. Critical habitat for D. luteum includes 1,022 ha (2,525 ac), 
with 554 ha (1,369 ac) in Sonoma County and 468 ha (1,156 ac) in Marin 
County.
    A brief description of each unit, along with our reasons for 
designating it as critical habitat, is presented below.

Unit B1: Coleman Valley, Sonoma County, California

    This unit is located near Coleman Valley Road west of the town of 
Occidental, approximately 8 km (5 mi) from the coast. The 322 ha (796 
ac) unit is bounded on the north side by Coleman Valley Road and 
represents an area either near or at the original type locality for 
Delphinium bakeri. The exact location of the type locality for D. 
bakeri is somewhat vague, with the location described only as ``Hedrin 
Ranch in Coleman Valley, West of Occidental.'' The location is mapped 
to within a 1.6 km (1 mi) radius in the CNDDB (CNDDB 2001).
    This unit contains an extensive north-facing slope with mesic 
vegetation similar to the extant location of Delphinium bakeri, with 
the addition of coastal redwood. The Coleman Valley location of D. 
bakeri represents the northernmost extent of the known range of this 
species. This unit is essential for the survival as well as the 
conservation of D. bakeri because it provides a second area separate 
from the existing population for D. bakeri, into which the species can 
be reintroduced. We believe it is particularly important to have a 
second unit to reduce the likelihood that the species may become 
extinct as the result of a catastrophic event in the single location 
where the species is now known to occur. A second, geographically 
separate unit can provide greater protection to the species from chance 
events, such as disease, that can destroy the only remaining 
population.

Unit B2: Salmon Creek, Marin County, California

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

Unit L1: Bodega Bay, Sonoma County, California

    Unit L1 consists of 554 ha (1,369 ac) south of Bay Hill Road, near 
the town of Bodega in Sonoma County, California. This unit is comprised 
of Kneeland series soils, coastal prairie and scrub habitat, and is 
within the fog belt that moderates the climate. This unit contains 
features that are essential to the conservation of Delphinium luteum. 
It also is important for the conservation of the species because it 
supports about 30 percent of the roughly 220 total known remaining 
individual plants (based on the most recent population totals (CNDDB 
2001; D. Amme, pers. comm. 2002)). Because so few D. luteum plants 
remain, habitat supporting all of them is essential to the continued 
survival and conservation of the species. In addition, this unit is 
important to the conservation of the

[[Page 12846]]

species because it contains two of the very few remaining sites at 
which the species has been recently observed. Due to the limited number 
of populations of D. luteum, and the high degree of threat of 
extinction from catastrophic events, we believe that habitat supporting 
all recently documented occurrences is essential for the conservation 
of this species.

Unit L2: Estero Americano, Marin County, California.

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

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

    Unit L3 is located near the mouth of the Estero de San Antonio in 
Marin County and includes steep sloped canyon walls composed of 
Yorkville series soils on both sides of the water channel, with coastal 
prairie and coastal scrub habitat and temperatures moderated by fog. 
This 142 ha (351 ac) unit contains one population of Delphinium luteum 
discovered in 1993 that is not yet recorded in the CNDDB. This unit is 
important because it is positioned roughly halfway between Unit L4 to 
the south, and Units L1 and L2 to the north, and may help to prevent 
the genetic isolation of Unit L4. It also contains the largest 
continuous area of Yorkville soils of all the units. Yorkville soils 
are important because, in Units L2 and L3, these soils support roughly 
two thirds of all individual D. luteum plants. Because a large 
proportion of the remaining D. luteum individuals occur on Yorkville 
soils, we believe these soils are an indicator of situations in which 
the plants are likely to survive and reproduce. Therefore, we believe 
areas which contain these soils are essential to the conservation of 
the species.

Unit L4: Tomales, Marin County, California.

    Unit L4 is located approximately 1.6 km (1 mi) south of the town of 
Tomales in Marin County. This 193 ha (476 ac) unit consists of coastal 
prairie and coastal scrub within the fog belt. It is known to have 
contained three populations of Delphinium luteum, although two of the 
populations have not been documented since the early 1980s, and one of 
these has been listed by the CNDDB as ``possibly extirpated'' (CNDDB 
2001). The ``possibly extirpated'' population may have consisted of 
hybrids of D. luteum and D. nudicaule (red larkspur). The third 
population occurs on a road embankment rather than in the vicinity of 
canyon walls. This population was documented as recently as 2000, and 
was genetically tested and confirmed to be a non-hybrid, but only one 
plant was seen at that time (J. Koontz, in litt., 2002). This unit 
contains primary constituent elements that are essential to the 
conservation of the species. The unit also is important to the 
conservation of the species because it contains one of very few 
remaining sites at which the species has been recently observed. Due to 
the limited number of populations of D. luteum, and the high degree of 
threat of extinction from catastrophic events, we believe that habitat 
supporting all recently documented occurrences is essential for the 
conservation of this species. In addition, this unit is important 
because it represents the southernmost extent of the range of D. 
luteum. The population growing in the road embankment may also provide 
important information on the characteristics of managed soil 
disturbances which can support D. luteum. Such information would be of 
great help in conserving the species.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, permit, or carry 
out are not likely to result in the destruction or adverse modification 
of critical habitat. In our regulations at 50 CFR 402.02, we define 
destruction or adverse modification as ``a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species. Such 
alterations include, but are not limited to, alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical.'' However, in a March 
15, 2001, decision of the United States Court of Appeals for the Fifth 
Circuit (Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 
434), the Court found our definition of destruction or adverse 
modification to be invalid. In response to this decision, we are 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species. Individuals, organizations, States, 
local governments, and other non-Federal entities are affected by the 
designation of critical habitat only if their actions occur on Federal 
lands; require a Federal permit, license, or other authorization; or 
involve Federal funding.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened, and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species, or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist 
Federal agencies in eliminating conflicts that may be caused by their 
proposed action. The conservation recommendations in a conference 
report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that actions 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or result in the destruction or 
adverse modification of its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the

[[Page 12847]]

responsible Federal agency (action agency) must enter into consultation 
with us. Through this consultation, the Federal action agency would 
ensure that the permitted actions do not destroy or adversely modify 
critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
formal 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 we believe would 
avoid resulting in the destruction or adverse modification of critical 
habitat.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including instances where critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement or control 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 
subsequently designated critical habitat, or adversely modify or 
destroy proposed critical habitat.
    Activities on Federal lands that may affect Delphinium bakeri or D. 
luteum or their critical habitat will require consultation under 
section 7 of the Act. Activities on private, State, county, or lands 
under local jurisdictions that involve a Federal action such as funding 
(e.g., Federal Highway or Federal Emergency Management Act funding), or 
a permit (such as a permit from the U.S. Army Corps of Engineers under 
section 404 of the Clean Water Act), will continue to be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on non-Federal and private 
lands that are not federally funded, authorized, or permitted, do not 
require section 7 consultation. Not all of the area within the 
boundaries of the mapped units provide primary constituent elements 
capable of supporting Delphinium bakeri or D. luteum. For instance, 
buildings, lawns, roads, parking lots, and other paved areas will not 
contain one or more of the primary constituent elements. Federal 
actions limited to these areas, therefore, would not be subject to 
section 7 consultation unless the action would affect the species or 
primary constituent elements in adjacent designated critical habitat.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 of the Act ensures that actions 
funded, authorized, or carried out by Federal agencies are not likely 
to jeopardize the continued existence of a listed species, or result in 
the destruction or adverse modification of the listed species' critical 
habitat. Actions likely to ``jeopardize the continued existence'' of a 
species are those that would appreciably reduce the likelihood of the 
species' survival and recovery. Actions likely to ``destroy or 
adversely modify'' critical habitat are those that would appreciably 
reduce the value of critical habitat for the recovery of the listed 
species.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may destroy 
or adversely modify such habitat or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat would be those that alter the primary constituent elements to 
the extent that the value of critical habitat for the conservation of 
Delphinium bakeri or D. luteum would be appreciably reduced. Within the 
units designated as critical habitat, this pertains only to those areas 
containing the primary constituent elements. We note that such 
activities may also jeopardize the continued existence of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly destroy or adversely modify 
critical habitat for Delphinium luteum or D. bakeri include, but are 
not limited to:
    (1) Ground disturbances which destroy or degrade primary 
constituent elements of the plant (e.g., clearing, tilling, grading, 
construction, road building, and mining);
    (2) Activities which directly or indirectly affect Delphinium 
bakeri or D. luteum plants or underlying seed bank (e.g., herbicide 
application and heavy off-road vehicle use that could degrade the 
habitat on which the species depends, incompatible introductions of 
nonnative herbivores, and incompatible grazing during times when D 
bakeri or D. luteum is producing flowers or seeds);
    (3) Activities which significantly degrade or destroy likely 
pollinator populations for Delphinium bakeri (e.g., pesticide 
applications that degrade or destroy large hymenoptera, especially 
Bombus ssp. (bumblebees)) in proximity to the designated critical 
habitat for D. bakeri; and
    (4) Activities that would appreciably change the rate of erosion of 
soils for Delphinium luteum such as slope stabilization; residential 
and commercial development, including road building and golf course 
installation; and vegetation manipulation, such as clearing and 
grubbing upslope from D. luteum.
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT section). Requests for copies of the regulations, 
and inquiries about prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Portland Regional Office, 911 NE 11th 
Avenue, Portland, OR 97232-4181 (telephone 503/231-6131; facsimile 503/
231-6243).

Exclusions Under Section 4(b)(2)

    Subsection 4(b)(2) of the Act allows us to exclude areas from the 
critical habitat designation where the benefits of exclusion outweigh 
the benefits of designation, provided the exclusion will not result in 
extinction of the species. Following a review of available information 
from our files, public comments on the proposal, and the economic 
analysis of the proposed designation, we have determined that none of 
the lands proposed as critical habitat warranted exclusion from the 
final designation based on economic impacts or other relevant impacts 
pursuant to section 4(b)(2).

Relationship to Habitat Conservation Plans (HCPs) and Other Planning 
Efforts

    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed wildlife species incidental to otherwise lawful 
activities. An incidental take permit application must be supported by 
an HCP that identifies conservation measures that the permittee agrees 
to implement for the species to minimize and mitigate the impacts of 
the permitted incidental take. Although take of listed plants is not 
generally prohibited by the Act, listed plant species may also be 
covered in an HCP for wildlife species. Currently, no

[[Page 12848]]

HCPs exist that include Delphinium bakeri or D. luteum as covered 
species.
    In the event that future HCPs covering Delphinium bakeri or D. 
luteum are developed within the boundaries of the designated critical 
habitat, we will work with applicants to ensure that the HCPs provide 
for protection and management of habitat areas essential for the 
conservation of these species. This will be accomplished by either 
directing development and habitat modification to nonessential areas, 
or appropriately modifying activities within essential habitat areas so 
that such activities will not adversely modify the primary constituent 
elements. The HCP development process would provide an opportunity for 
more intensive data collection and analysis regarding the use of 
particular habitat areas by D. bakeri or D. luteum. The process would 
also enable us to conduct detailed evaluations of the importance of 
such lands to the long-term survival and conservation of the species in 
the context of constructing a biologically configured system of 
interlinked habitat blocks configured to promote the conservation of 
the species through application of the principles of conservation 
biology.
    We will provide technical assistance and work closely with 
applicants throughout the development of any future HCPs to identify 
lands essential for the long-term conservation of Delphinium bakeri or 
D. luteum, and appropriate management for those lands. Furthermore, we 
will complete intra-Service consultation on our issuance of section 
10(a)(1)(B) permits for these HCPs to ensure permit issuance will not 
destroy or adversely modify critical habitat.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned. 
Following the publication of the proposed critical habitat designation, 
we conducted a draft economic analysis to estimate the potential 
economic effect of the designation. The draft analysis was made 
available for review on November 1, 2002 (67 FR 66599). We accepted 
public comment on the draft analysis until December 2, 2002.
    Our economic analysis evaluated the potential future effects 
associated with the section 7 consultation requirements of Delphinium 
bakeri and D. luteum as endangered species under the Act, as well as 
any potential effect of the critical habitat designation above and 
beyond those regulatory and economic impacts associated with listing. 
To quantify the proportion of total potential economic impacts 
attributable to the critical habitat designation, the analysis 
evaluated a ``without section 7'' scenario and compared it to a ``with 
section 7'' scenario. The ``without section 7'' baseline represented 
the level of protection currently afforded to the species under the Act 
if section 7 protective measures were absent, and includes protections 
afforded by other Federal, State, and local laws such as the California 
Environmental Quality Act. The ``with section 7'' scenario identifies 
land-use activities likely to involve a Federal nexus that may affect 
the species or its designated critical habitat, and that therefore have 
the potential to be subject to future consultations under section 7 of 
the Act.
    Upon identifying section 7 impacts, the analysis proceeds to 
consider the subset of impacts that can be attributed exclusively to 
the critical habitat designation. The upper-bound estimate includes 
both jeopardy and critical habitat impacts. The subset of section 7 
impacts likely to be affected solely by the designation of critical 
habitat represents the lower-bound estimate of the analysis. The 
categories of potential costs and benefits considered in the analysis 
included: (1) Conducting section 7 consultations associated with the 
listing or with the critical habitat; (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 benefits associated 
with critical habitat including educational benefits. Our economic 
analysis recognizes that there may be costs from delays associated with 
reinitiating completed consultations after the critical habitat 
designation is made final.
    The analysis estimated that this critical habitat designation will 
result in the need for one formal and two informal section 7 
consultations. The formal consultation will be required for a State 
highway culvert repair project, while the informal consultations will 
result from an estimated two flood and erosion control projects on 
private land that will involve a Federal nexus. The total 
administrative cost of these consultations is estimated at $18,000, of 
which $7,000 is attributable to this critical habitat designation as 
opposed to other section 7 requirements pertaining to the listing of 
the species. No project modifications are expected to occur as a result 
of these consultations.
    Total costs resulting from technical assistance, formal and 
informal consultations, development of biological assessments, and 
project modifications due to listing and critical habitat designation 
are presented in the economic analysis, according to land use 
activities and individual critical habitat units. Costs to third 
parties result from technical assistance, consultations, and 
development of a biological assessment. Costs to Federal action 
agencies include those incurred from consultations. Costs to the 
Service result from technical assistance and consultations.
    We received a few comments on the draft economic analysis of the 
proposed determination. We considered these comments, and our response 
to them is included as part of the preamble of this rule (see Summary 
of Comments and Recommendations), as well as in the final Addendum to 
the Economic Analysis. As a result of the comments received, a 
correction was made in relation to a statement in the draft economic 
analysis that private landowners should incur no additional costs as a 
result of section 7 requirements. In fact, certain private landowners 
participating in flood control and revegetation projects that have a 
Federal nexus are expected to pay for costs associated with an informal 
consultation with the Service. The final Addendum to the Economic 
Analysis discusses the resulting correction, and the effects were 
included in the description (above) of costs associated with expected 
informal consultations. The final Addendum to the Economic Analysis 
also provides explanations to more clearly explain and justify the 
methodology used, based on comments received concerning the 
methodology. There were no other revisions or additions to the draft 
economic analysis.
    A copy of the final economic analysis and supporting documents are 
included in our administrative record and may be obtained by contacting 
the Sacramento Fish and Wildlife Office (see ADDRESSES section). Copies 
of the final economic analysis also are available on the Internet at 
http://pacific.fws.gov/news/.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices

[[Page 12849]]

that are easy to understand. We invite your comments on how to make 
this final rule easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the final rule 
clearly stated? (2) Does the final rule contain technical language or 
jargon that interferes with the clarity? (3) Does the format of the 
final rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Is the description 
of the notice in the SUPPLEMENTARY INFORMATION section of the preamble 
helpful in understanding the final rule? (5) What else could we do to 
make the notice easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget (OMB) has determined that this critical habitat designation 
is not a significant regulatory action. This rule will not have an 
annual economic effect of $100 million or more or adversely affect any 
economic sector, productivity, competition, jobs, the environment, or 
other units of government.
    This designation will not create inconsistencies with other 
agencies' actions or otherwise interfere with an action taken or 
planned by another agency. It will not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. Finally, this designation will not raise novel legal 
or policy issues. Accordingly, OMB has not reviewed this final critical 
habitat designation.

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 effect on a substantial number of small 
entities. SBREFA also amended the RFA to require a certification 
statement. In this final rule, we are certifying that the critical 
habitat designation for Delphinium bakeri and D. luteum will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    Small entities include small organizations, such as independent 
nonprofit organizations and small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. 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.
    SBREFA does not explicitly define either ``substantial number'' or 
``significant economic impact.'' Consequently, to assess whether a 
``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in the area. Similarly, the analysis 
considers the relative cost of compliance on the revenues/profit 
margins of small entities in determining whether or not entities incur 
a ``significant economic impact.'' Only small entities that are 
expected to be directly affected by the designation are considered in 
this portion of the analysis. This approach is consistent with several 
judicial opinions related to the scope of the RFA. (Mid-Tex Elec. 
Coop., Inc. v. FERC 773 F.2d 327 (D.C. Cir. 1985) and American Trucking 
Associations, Inc. v. USEPA, 175 F.3d 1027 (D.C. Cir. 1999)).
    To determine if a 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 determine if certification 
is appropriate. In some circumstances, especially with proposed 
critical habitat designations of very limited extent, we may aggregate 
across all industries and consider whether the total number of small 
entities affected is substantial. In estimating the numbers of small 
entities potentially affected, we also consider whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation.
    In estimating the numbers of small entities potentially affected, 
we also consider 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 Delphinium bakeri 
or D. luteum. 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.
    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 Delphinium bakeri and D. 
luteum and the proposed designation of critical habitat could 
potentially impose total economic costs for consultation and 
modifications to projects up to $18,000 with approximately $7,000 of 
this attributable to critical habitat designation over the next 10-year 
period. The small business activities taking place within the critical 
habitat units which might be affected by section 7 consultation 
requirements are forestry, agriculture, and livestock production 
(Economic and Planning Systems 2002, 2003).
    In summary, we have considered whether this rule could result in 
significant economic effects on a substantial number of small entities. 
Our analysis concluded that there are 653 smaller producers in 
forestry, agriculture, and livestock production for

[[Page 12850]]

Sonoma and Marin counties, of which only 0.3 percent are likely to be 
affected by this rule. Therefore, we are certifying that the 
designation of critical habitat for Delphinium bakeri and D. luteum 
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. We 
anticipate that this final rule will not place significant additional 
burdens on any entity.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. The primary land uses 
within this designated critical habitat are agricultural. This rule is 
not expected to significantly affect energy supplies, distribution, or 
use. In our economic analysis, we did not identify energy production or 
distribution as being significantly affected by this designation, and 
we received no comments indicating that the proposed designation could 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

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

    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 
must ensure that any small government action they (the Federal 
agencies) authorize (permit) or fund is not likely to result in the 
adverse modification or destruction of designated critical habitat.
    (b) 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 1,762 ha (4,353 ac) of lands as critical 
habitat for the two Delphinium species in Marin and Sonoma counties, 
California in a takings implication assessment. This assessment 
concludes that this final rule does not pose significant takings 
implications.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with the Department of the Interior policy, we 
requested information from, and coordinated development of this 
critical habitat designation with, the appropriate State resource 
agencies in California. We will continue to coordinate any future 
changes in the designation of critical habitat for Delphinium bakeri 
and D. luteum with the appropriate State agencies. Where these species 
are present, the designation of critical habitat imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation of critical habitat in unoccupied areas may require 
consultation under section 7 of the Act on non-Federal lands (where a 
Federal nexus occurs) that might otherwise not have occurred. The 
designation may have some benefit to these governments in that the 
areas essential to the conservation of these species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are identified. While this definition 
and identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning, rather than waiting for case-by-case section 7 
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 Endangered Species 
Act, as amended. The rule uses standard property descriptions and 
identifies the principal constituent elements within the designated 
areas to assist the public in understanding the habitat needs of 
Delphinium bakeri and D. luteum.

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

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of 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. The designated critical 
habitat for Delphinium bakeri and D. luteum does not contain any lands 
that we have

[[Page 12851]]

identified as impacting Tribal trust resources. D. bakeri and D. luteum 
are known only to occur on private lands. We are not aware of any 
Tribal lands in or near our critical habitat units for D. bakeri and D. 
luteum. Therefore, we have determined that there are currently no 
Tribal lands essential for the conservation of D. bakeri or D. luteum 
because they do not support populations or provide essential habitat 
for either plant species. If we learn of any Tribal lands in the 
vicinity of the critical habitat designation subsequent to this 
proposal, we will coordinate with the Tribes before making a final 
determination as to whether any Tribal lands should be included as 
critical habitat for D. bakeri or D. luteum.

References Cited

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

Author

    The primary authors of this final rule are Kirsten Tarp and Glen 
Tarr, Sacramento Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


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


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat        rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
         FLOWERING PLANTS
 
                                                                      * * * * * * *
Delphinium bakeri................  Baker's larkspur....  U.S.A. (CA)........  Ranunculaceae......  E                       681     17.96(a)           NA
Delphinium luteum................  Yellow larkspur.....  U.S.A. (CA)........  Ranunculaceae......  E                       681     17.96(a)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. In Sec.  17.96, amend paragraph (a) by adding critical habitat 
entries for ``Family Ranunculaceae Delphinium bakeri'' and ``Family 
Ranunculaceae Delphinium luteum'' in alphabetical order to read as 
follows:


Sec.  17.96  Critical habitat--plants.

    (a) * * *

Family Ranunculaceae: Delphinium bakeri (Baker's larkspur)

    (1) Critical habitat units are depicted for Sonoma and Marin 
counties, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Delphinium bakeri are the habitat components that provide:
    (i) Soils that are derived from decomposed shale;
    (ii) Plant communities that support associated species, including, 
but not limited to: Umbellularia californica (California bay), Aesculus 
californica (California buckeye), Quercus agrifolia (coastal live oak), 
Baccharis pulularis ssp. consanguinea (coyotebrush), Symphorcarpos cf. 
rivularis (snowberry), Rubus ursinus (California blackberry), Pteridium 
aqulinum (braken fern), Polystichum munitum (Sword fern), Pityrogramma 
triangularis (goldback fern), Dryopteris arguta (coastal woodfern), 
Adiantum jordanii (maidenhair fern), Polypodium glycyrrhiza (licorice 
fern), Toxicodendron diversilobum (poison oak), Ceanothus thyrsiflorus 
(blueblossom ceanothus), Lithophragma affine (woodland star), and 
Holodiscus discolor (oceanspray); and
    (iii) Mesic conditions on extensive north-facing slopes.
    (3) Critical habitat does not include existing features and 
structures made by people, such as buildings, roads and other paved 
areas, lawns, and developed areas not containing one or more of the 
primary constituent elements.
    (4) Critical Habitat Map Units.
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles obtained from the State of California's Stephen P. 
Teale Data Center. Proposed critical habitat units were then mapped 
using Universal Transverse Mercator (UTM) coordinates.
    (ii) Map 1--Index map for Delphinium bakeri follows:
BILLING CODE 4310-55-P

[[Page 12852]]

[GRAPHIC] [TIFF OMITTED] TR18MR03.090

BILLING CODE 4310-55-P
    (5) Unit B1: Sonoma County, California.
    (i) From USGS 1:24,000 quadrangle maps Camp Meeker and Duncan 
Hills, California, land bounded by the following UTM10 NAD83 
coordinates (E,N): 498360, 4249440; 498030, 4249650; 498040, 4249990; 
498160,

[[Page 12853]]

4250150; 498430, 4250320; 498420, 4250440; 499140, 4250680; 499380, 
4250710; 499510, 4250490; 499840, 4250710; 499880, 4250840; 500250, 
4250840; 500580, 4250770; 500730, 4250780; 501020, 4250950; 501080, 
4251070; 501360, 4251270; 501520, 4251370; 501730, 4251520; 502100, 
4251370; 502190, 4251180; 502120, 4251090; 501830, 4251060; 501570, 
4250750; 501380, 4250720; 501400, 4250360; 501230, 4250330; 501090, 
4250220; 501070, 4250030; 500720, 4249960; 500550, 4249990; 500220, 
4249930; 500190, 4249700; 499680, 4249760; 499520, 4249850; 499250, 
4249830; 499210, 4249730; 498880, 4249750; 498620, 4250050; 498600, 
4249490; 498360, 4249440.
    (ii) Map 2--Unit B1 for Delphinium bakeri follows:
BILLING CODE 4310-55-P

[[Page 12854]]

[GRAPHIC] [TIFF OMITTED] TR18MR03.091

BILLING CODE 4310-55-C

[[Page 12855]]

    (6) Unit B2: Marin County, California.
    (i) From USGS 1:24,000 quadrangle maps Petaluma and Point Reyes NE, 
California, land bounded by the following UTM10 NAD83 coordinates 
(E,N): 521780, 4222900; 521560, 4223000; 521350, 4223070; 521230, 
4223130; 520980, 4223320; 520890, 4223460; 520680, 4223430; 520220, 
4223440; 520100, 4223460; 519940, 4223460; 519870, 4223360; 519720, 
4223280; 519510, 4223340; 519400, 4223480; 519350, 4223630; 519360, 
4223760; 519410, 4223800; 519530, 4223970; 519640, 4224090; 519830, 
4224140; 519980, 4224160; 520440, 4224100; 520760, 4224100; 520990, 
4224170; 521130, 4224160; 521460, 4224080; 521740, 4223960; 521820, 
4223870; 521960, 4223770; 522130, 4223810; 522290, 4224000; 522320, 
4224070; 522480, 4224160; 522550, 4224310; 522830, 4224380; 523160, 
4224240; 523340, 4224250; 523470, 4224360; 523660, 4224430; 523750, 
4224480; 523920, 4224510; 524070, 4224620; 524460, 4224710; 524860, 
4224530; 525010, 4224370; 525030, 4224250; 524690, 4224190; 524590, 
4224200; 524360, 4224100; 524280, 4223950; 524050, 4223780; 523920, 
4223650; 523700, 4223480; 523600, 4223640; 523480, 4223720; 523210, 
4223700; 522880, 4223510; 522650, 4223450; 522370, 4223230; 522170, 
4223120; 522050, 4223080; 521860, 4222980; 521780, 4222900.
    (ii) Map 3--Unit B2 for Delphinium bakeri follows:
BILLING CODE 4310-55-P

[[Page 12856]]

[GRAPHIC] [TIFF OMITTED] TR18MR03.092

BILLING CODE 4310-55-C

[[Page 12857]]

Family Ranunculaceae: Delphinium luteum (Yellow larkspur)

    (1) Critical habitat units are depicted for Sonoma and Marin 
counties, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Delphinium luteum are the habitat components that provide:
    (i) Plant communities, including north coastal scrub or coastal 
prairie communities, including but not limited to: Arabis 
blepharophylla (rose rockcress), Calochortus tolmei (Tolmei startulip), 
Mimulus aurantiacus (orange bush monkeyflower), Dudleya caespitosa (sea 
lettuce), Polypodium californicum (California polyploidy), Eriogonum 
parviflorum (sea cliff buckwheat), Toxicodendron diversilobum (poison 
oak), Romanzoffia californica (California mistmaiden), Hesperevax 
sparsiflora (evax), Pentagramma triangularis (goldenback fern), and 
Sedum spathulifolium (broadleaf stonecrop);
    (ii) Relatively steep sloped soils (30 percent or greater) derived 
from sandstone or shale, with rapid runoff and high erosion potential, 
such as Kneeland or Yorkville series soils;
    (iii) Generally north aspected areas; and
    (iv) Habitat upslope and downslope from known populations to 
maintain disturbance such as occasional rock slides or soil slumping 
that the species appears to require.
    (3) Critical habitat does not include existing features and 
structures made by people, such as buildings, roads and other paved 
areas, lawns, and other developed areas not containing one or more of 
the primary constituent elements.
    (4) Critical Habitat Map Units.
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles obtained from the State of California's Stephen P. 
Teale Data Center. Proposed critical habitat units were then mapped 
using Universal Transverse Mercator (UTM) coordinates.
    (i) Map 4-Index map for Delphinium luteum follows:
BILLING CODE 4310-55-P

[[Page 12858]]

[GRAPHIC] [TIFF OMITTED] TR18MR03.093

BILLING CODE 4310-55-P
    (5) Unit L1: Bodega Bay, Sonoma County, California.
    (i) From USGS 1:24,000 quadrangle map Bodega Head. Lands bounded by 
the following UTM10 NAD83 coordinates (E,N): 496820, 4241560; 496870, 
4241690; 497130, 4241990; 497110, 4242130; 497170, 4242240;

[[Page 12859]]

497250, 4242220; 497470, 4242550; 497440, 4242700; 497930, 4242940; 
498340, 4242940; 498430, 4243040; 498640, 4242960; 498720, 4243080; 
499110, 4243090; 499410, 4242960; 499690, 4242760; 499650, 4242560; 
500250, 4242210; 500030, 4241880; 500140, 4241320; 499900, 4240730; 
499750, 4240650; 498690, 4240750; 498220, 4241010; 497940, 4241050; 
497590, 4241010; 497450, 4241220; 497500, 4241630; 497750, 4241830; 
497760, 4241970; 497720, 4242010; 497630, 4242010; 497520, 4241940; 
497480, 4241850; 497320, 4241860; 497170, 4241680; 497100, 4241500; 
497030, 4241410; 496910, 4241440; 496820, 4241560.
    (ii) Map for Unit L1 is set forth below.
    (6) Unit L2: Estero Americano, Marin County, California.
    (i) From USGS 1:24,000 quadrangle map Valley Ford. Lands bounded by 
the following UTM10 NAD83 coordinates (E,N): 499970, 4238100; 500010, 
4238150; 500010, 4238240; 499870, 4238480; 500010, 4238710; 500140, 
4238860; 500280, 4238940; 500470, 4238970; 500580, 4239030; 500630, 
4239070; 500720, 4239040; 500850, 4238840; 500890, 4238860; 500970, 
4238830; 501050, 4238740; 501170, 4238740; 501180, 4238650; 501300, 
4238460; 501440, 4238320; 501510, 4238120; 501340, 4238000; 501270, 
4238010; 501190, 4238000; 501120, 4238010; 500900, 4237990; 500870, 
4237960; 500860, 4237860; 500730, 4237850; 500570, 4237760; 500470, 
4237800; 500380, 4237730; 500250, 4237890; 500240, 4237940; 500180, 
4237980; 499990, 4238060; 499970, 4238100.
    (ii) Map 5--Units L1 and L2 for Delphinium luteum follows:
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    (7) Unit L3: Estero de San Antonio, Marin County, California.
    (i) From USGS 1:24,000 quadrangle map Valley Ford. Lands bounded by 
the following UTM10 NAD83 coordinates (E,N): 502060, 4235600; 502110, 
4235750; 502230, 4235770; 502300, 4235840; 502350, 4235930; 502370,

[[Page 12861]]

4236030; 502410, 4236100; 502510, 4236150; 502700, 4236150; 502900, 
4235910; 503010, 4235860; 502900, 4236160; 502870, 4236120; 502700, 
4236260; 502880, 4236400; 503060, 4236370; 503130, 4236240; 503070, 
4236180; 503090, 4236010; 503200, 4235950; 503260, 4235990; 503170, 
4236090; 503280, 4236180; 503410, 4236100; 503470, 4236040; 503430, 
4235810; 503460, 4235720; 503600, 4235580; 503800, 4235490; 503950, 
4235300; 504020, 4235010; 504030, 4234810; 504000, 4234630; 503920, 
4234390; 503780, 4234410; 503780, 4234890; 503710, 4234990; 503610, 
4234970; 503520, 4234840; 503560, 4234620; 503580, 4234470; 503520, 
4234440; 503350, 4234580; 503360, 4234710; 503250, 4234860; 502990, 
4234970; 502950, 4235100; 502700, 4235170; 502710, 4235260; 502810, 
4235330; 502800, 4235510; 502580, 4235480; 502510, 4235510; 502530, 
4235580; 502390, 4235560; 502310, 4235470; 502200, 4235470; 502060, 
4235600.
    (ii) Map for Unit L3 is set forth below.
    (8) Unit L4: Tomales, Marin County, California.
    (i) From USGS 1:24,000 quadrangle map Tomales. Lands bounded by the 
following UTM10 NAD83 coordinates (E,N): 506200, 4229650; 506000, 
4229960; 506040, 4230020; 506330, 4230130; 506450, 4230630; 506550, 
4230640; 506760, 4230830; 506840, 4231090; 507070, 4231150; 507230, 
4231260; 507340, 4231460; 507170, 4231740; 507270, 4231860; 507400, 
4231820; 507550, 4231930; 507660, 4231930; 507780, 4232080; 507810, 
4232220; 507870, 4232340; 507990, 4232290; 508250, 4232250; 508320, 
4232050; 508110, 4231810; 508090, 4231660; 507960, 4231700; 507920, 
4231670; 507950, 4231580; 507630, 4231410; 507520, 4231200; 507560, 
4230830; 507560, 4230620; 507510, 4230590; 507490, 4230470; 507440, 
4230300; 507440, 4230220; 507330, 4230050; 507300, 4229930; 507320, 
4229820; 507310, 4229770; 507230, 4229730; 507060, 4229730; 506960, 
4229740; 506780, 4229830; 506710, 4229840; 506580, 4229790; 506600, 
4229860; 506720, 4230150; 506770, 4230340; 506640, 4230230; 506460, 
4230020; 506200, 4229650.
    (ii) Map 6--Units L3 and L4 for Delphinium luteum follows:
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* * * * *

    Dated: March 7, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-6133 Filed 3-17-03; 8:45 am]
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