[Federal Register Volume 68, Number 67 (Tuesday, April 8, 2003)]
[Rules and Regulations]
[Pages 16970-16990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8181]



[[Page 16970]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH76


Endangered and Threatened Wildlife and Plants; Endangered Status 
and Designation of Critical Habitat for Polygonum hickmanii (Scotts 
Valley polygonum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for Polygonum hickmanii (Scotts Valley polygonum). 
Polygonum hickmanii is restricted to two sites in northern Scotts 
Valley, Santa Cruz County, California. We are also designating critical 
habitat pursuant to the Act for this species; 116 hectares (287 acres) 
of land are designated as critical habitat. This rule implements the 
protection and recovery provisions afforded by the Act for this 
species.

DATES: This rule becomes effective on May 8, 2003.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the U.S. Fish and Wildlife Service, Ventura Field Office, 2493 
Portola Road Suite B, Ventura, CA 93003.

FOR FURTHER INFORMATION CONTACT: Connie Rutherford, Ventura Fish and 
Wildlife Office, at the above address or telephone number 805/644-1766, 
facsimile 805/644-3958 or e-mail at [email protected]. 
Information regarding this rulemaking is available in alternate formats 
upon request.

SUPPLEMENTARY INFORMATION:

Background

    Polygonum hickmanii (Scotts Valley polygonum) is a recently 
described endemic plant species from Scotts Valley, Santa Cruz County, 
California (Hinds and Morgan 1995). Randy Morgan made the type 
collection in 1993 from a ``grassland [north] of Navarra Drive, [west] 
of Carbonero Creek'' (Hinds and Morgan 1995). The species was named 
after James C. Hickman, editor of the Jepson Manual-Higher Plants of 
California (Hickman 1993) and author of the chapter on the genus 
Polygonum in the same reference. Hickman concurred with Morgan's 
assessment that the taxon was distinct (J.C. Hickman, in litt. 1991), 
but died before coauthoring the publication of a name. The plant is a 
small, erect, taprooted annual in the buckwheat family (Polygonaceae). 
It grows from 2 to 5 centimeters (cm) (1 to 2 inches (in)) tall and can 
be either single stemmed or profusely branching near the base in more 
mature plants. The linear-shaped leaves are 0.5 to 3.5 cm (0.2 to 1.4 
in) long, 1 to 1.5 mm (0.04 to 0.06 in) wide, and tipped with a sharp 
point. The single white flowers consist of two outer and three inner 
tepals (petal-like structure) and are found in the axils of the 
bracteal leaves (modified leaves near the flower).
    The nearest known location of a closely related species, Polygonum 
parryi, is at Mount Hamilton, about 48 kilometers (km) (30 miles (mi)) 
inland. Polygonum hickmanii differs from P. parryi in its larger white 
flowers, longer leaves, larger anthers and achenes, and longer, 
straight stem sheath (Hinds and Morgan 1995). According to the late 
Harold Hinds, who was reviewing the genus Polygonum in an upcoming 
volume of the Flora of North America (Flora of North America Editorial 
Committee, in prep.), he intended to continue to recognize the 
distinctness of P. hickmanii as a species in that volume (Harold Hinds, 
University of New Brunswick, pers. comm., 1998). His successor, Mihai 
Costea, indicates there is no reason to doubt the validity of the taxon 
(M. Costea, University of Guelph, Ontario, Canada, in litt. 2002).
    As with many other annual species found within Mediterranean 
climates in California (Holland and Keil 1990), Polygonum hickmanii 
germinates in the fall or early winter in response to winter season 
rains. The plant grows slowly over the next few months and remains 
fairly inconspicuous until flowering begins in May. The panicles 
(floral branches) are indeterminate in their growth, meaning that the 
oldest flowers are found near the base of the stem and younger flowers 
found near the continually growing tip. The degree to which P. 
hickmanii depends on insect pollinators (rather than being self-
pollinated) has not been determined. However, Morgan observed a sphecid 
wasp (family Sphecidae) visitation to an individual P. hickmanii (R. 
Morgan, pers. comm., 1998).
    With the type of floral development found in P. hickmanii, new 
flowers will continue to be produced until climate or microhabitat 
conditions are no longer favorable. Consequently, seed production 
ranges from a few dozen seeds in a typical individual to as many as two 
hundred in a particularly robust individual (Randy Morgan, biological 
consultant, pers. comm., 1998).
    The seeds of many plant taxa within the buckwheat family 
(Polygonanceae) are known to be attractive forage to wildlife, who then 
inadvertently disperse some portion of the seed. Because the seed of 
Polygonum hickmanii are small, they most likely would be attractive to 
birds and small mammals including such species as black-tailed hares 
(Lepus californicus), pocket mice (Perognathus californicus), western 
gray squirrel (Sciurus griseus), ground squirrels (Otospermophilus 
beecheyi), striped skunks (Mephitis mephitis), opossums (Didelphis 
virginiana) and racoons (Procyon lotor).
    Maintaining a seed bank (a reserve of dormant seeds, generally 
found in the soil) is important to the year-to-year and long-term 
survival of annual plants (Baskin and Baskin 1978, Baskin and Baskin 
1998). A seed bank includes all the mature seeds in a population and 
generally covers a larger area than the extent of observable plants 
seen in a given year (Given 1995). The number and location of standing 
plants (the observable plants) in a population varies annually due to a 
number of factors, including the amount and timing of rainfall, 
temperature, soil conditions, and the extent and nature of the seed 
bank. The extent of seed bank reserves is variable from population to 
population and large fluctuations in the number of standing plants at a 
given site may occur from one year to the next.
    The distribution of Polygonum hickmanii has apparently been limited 
to the northern Scotts Valley area in Santa Cruz County, California. 
Two bodies of evidence support this theory. First, none of the 
herbarium collections of other Polygonum species that were checked in 
preparation for the publication of the name for P. hickmanii matched 
those collected from Scotts Valley. Herbaria that were searched 
included the Dudley Herbarium at Stanford University, the Jepson and 
University of California (UC) herbaria located at UC Berkeley, and the 
herbarium at the Missouri Botanic Garden (H. Hinds, in litt. 1998; R. 
Morgan, pers. comm., 1998). Secondly, predictive searches of other 
potentially suitable habitat in Santa Cruz County (based on soil type, 
local climate, and associated species) have failed to locate additional 
colonies of P. hickmanii (R. Morgan, pers. comm., 1998).
    Polygonum hickmanii is found at two sites about 0.6 km (1 mi) apart 
at the northern end of Scotts Valley. The plant is found on gently 
sloping to nearly

[[Page 16971]]

level shallow soils over outcrops of Santa Cruz mudstone and Purisima 
sandstone (Hinds and Morgan 1995). It frequently, though not always, 
occurs with the endangered Chorizanthe robusta var. hartwegii (Scotts 
Valley spineflower) (59 FR 5499) and other small annual herbs in 
patches within a more extensive annual grassland habitat. These small 
patches, scattered in a mosaic throughout the grassland plant 
community, have been referred to as ``wildflower fields'' because they 
support a large number of native herbs, in contrast to the adjacent 
annual grasslands that support a greater number of nonnative grasses 
and herbs. While the wildflower fields are underlain by shallow, well-
draining soils, the surrounding annual grasslands are underlain by 
deeper soils with a greater water-holding capacity, and therefore more 
easily support the growth of nonnative grasses and herbs.
    Although the patches of wildflower field habitat stand out in 
contrast to the surrounding grasslands, a closer look at the wildflower 
field patches reveals slight microhabitat differences within the patch 
itself. The outer edge, or ``ring'' of the patch supports the greatest 
diversity of the native herbs, which are found on the deepest soils 
within the patch. Moving toward the center of the patch, the soil layer 
is shallower, and another ring supporting primarily the endangered 
Chorizanthe robusta var. hartwegii occurs here. In the very center of 
the patch where the soils are shallowest, the greatest concentration of 
Polygonum hickmanii is found, and other species are sparse. The surface 
soil texture in the center of the wildflower fields tends to be 
consolidated and crusty rather than loose and sandy (Biotic Resources 
Group (BRG) 1998). Flowering in P. hickmanii lags behind that of the 
endangered Chorizanthe robusta var. hartwegii and the other herbs by 4 
to 8 weeks, and the consolidated soil surface may play a role in 
supplying late spring moisture to the species (R. Morgan, pers. Comm. 
2003).
    Elevation of the sites is from 215 to 246 meters (m) (700 to 800 
feet (ft)) (Hinds and Morgan 1995). In the Scotts Valley area, the 
grasslands tend to be located on the middle to lower slopes within the 
subwatersheds, while the slopes above the grasslands tend to support 
redwood and mixed forest plant communities. On the Polo parcel, the 
slopes become increasingly steep from west to east; slopes nearest to 
Carbonero Creek on the western edge of the parcel are less than 20 
percent, the slopes in the middle of the parcel range from 20 to 40 
percent, and the slopes along the eastern edge of the parcel up to the 
ridgeline reach over 40 percent. Geologic reports discuss several 
hazards that contribute to the geologic instability of the site. First, 
the site is within a seismically active region that experiences 
groundshaking. Second, the site has been subject to landslide activity, 
and evidences of past debris flows have been observed on the site. 
Third, due to the impermeable nature of the Purisima Formation bedrock, 
seasonal perched groundwater conditions are common in areas where the 
bedrock is overlain by alluvium (material deposited by flowing water) 
and colluvium (loose deposit of rock debris accumulated at the base of 
a cliff or slope), which contributes to slope instability (Impact 
Sciences 2000).
    The geology of the Glenwood parcel has some similarities to the 
Polo parcel. Santa Cruz mudstone underlays the lower slopes and 
alluvial deposits, and the Purisima Formation underlays the upper 
slopes and ridges. The lowest elevations are along Carbonero Creek, 
which runs through the middle of the parcel from north to south. 
Similar to the Polo parcel, the mildest slopes are adjacent to the 
creek, while the slopes generally increase with increased distance from 
the creek, and slopes along the ridges to the east and west reach over 
30 percent (Impact Sciences 1997, 1998). Geologic hazards on the site 
that contribute to slope instability include seismic hazards, landslide 
activity, high erosion, and sedimentation potential due to the presence 
of springs and drainages and the impermeable nature of the Purisima 
Formation on the upper slopes. Although soil erosion and sedimentation 
are natural processes, human activities can increase the rates above 
their natural levels (Global Change Research Information Office (GCRIC) 
2002). Processes such as soil erosion on upper slopes, the accumulation 
of sedimentation on lower slopes, and soil compaction can alter the 
physical and chemical properties of those soils sufficiently to change 
their ability to store and supply nutrients and moisture needed by 
plants (GCRIC 2002). The persistence of plants with specific 
microhabitat requirements depends on maintaining the appropriate 
edaphic or soil conditions. Maintaining the stability of the higher 
slopes within a subwatershed are therefore important for maintaining 
the stability of the edaphic conditions directly downslope.
    Polygonum hickmanii is associated with a number of native herbs 
including Chorizanthe robusta var. hartwegii, Lasthenia californica 
(goldfields), Minuartia douglasii (sandwort), Minuartia californica 
(California sandwort), Gilia clivorum (gilia), Castilleja densiflora 
(owl's clover), Lupinus nanus (sky lupine), Brodiaea terrestris 
(brodiaea), Stylocline amphibola (Mount Diablo cottonweed), Trifolium 
grayii (Gray's clover), and Hemizonia corymbosa (coast tarplant). 
Nonnative species present at the two sites include Filago gallica 
(filago) and Vulpia myuros (rattail) (California Natural Diversity Data 
Base (CNDDB) 1998; R. Morgan, pers. comm., 1998). In many cases, the 
habitat also supports a crust of mosses and lichens (BRG 1998).
    For purposes of this rule, a concentration of individuals of 
Polygonum hickmanii will be referred to as a ``colony.'' Because of the 
close proximity of many of the colonies to each other (less than 0.4 km 
(0.2 mi) apart), it is unknown whether they function as genetically 
separate units or not. The approximate area occupied by any one colony 
ranges from the smallest at 1.5 m by 1.5 m (5 ft by 5 ft) to the 
largest at 15 m by 9 m (50 ft by 30 ft). Currently, there are 
approximately 11 colonies of P. hickmanii in total; the area covered by 
observable plants is less than 0.4 hectare (ha) (1 acre (ac)).
    The Polygonum hickmanii colonies are split between two sites--the 
Glenwood site and the Polo Ranch site. The Glenwood site is located 
north of Casa Way and west of Glenwood Drive in northern Scotts Valley; 
it contains five colonies on two parcels of land. One of these colonies 
is situated within a 3.6 ha (9 ac) preserve on a 19.4 ha (48 ac) parcel 
that is owned by the Scotts Valley Unified School District and is 
referred to as the ``School District'' colony (Denise Duffy and 
Associates 1998). The other four colonies at the Glenwood site are 
located approximately 0.21 km (0.13 mi) to the west of the School 
District colony, on a parcel of land owned by the Salvation Army (CNDDB 
1998). These four colonies are referred to as the ``Salvation Army'' 
colonies. Additional suitable but unoccupied habitat is found on the 
east side of Glenwood Drive on a parcel owned by Glenwood/American 
Dream. This parcel was recently approved for a housing development; a 
large portion of the parcel will be designated as ``open space,'' and a 
management plan will be developed to take into consideration the 
conservation of sensitive resources (Wetlands Research Associates 
2002). This open space area supports numerous colonies of Chorizanthe 
robusta var. hartwegii, which is frequently found in the same 
wildflower field patches as Polygonum hickmanii, as well as the 
endangered Ohlone tiger

[[Page 16972]]

beetle (Cicindela ohlone) (Impact Sciences 2001).
    The Polo Ranch site contains six colonies. This site is located 
just east of Highway 17 and north of Navarra Road in northern Scotts 
Valley, and is approximately 1.6 km (1 mi) east of the Salvation Army 
and School District colonies. These six colonies are situated within 
0.2 km (0.1 mi) of one another, and all of these colonies occur on a 
parcel owned by Greystone Homes (Kathleen Lyons, BRG, in litt. 1997; 
Impact Sciences 2000).
    Polygonum hickmanii is a short-lived annual species, and the total 
number of individuals can vary from year to year. In 2002, the total 
number of individual stems found at the Glenwood site was approximately 
340 (140 on the School District parcel and approximately 200 on the 
Salvation Army parcel) (K. Lyons, in litt. 2002; Biotic Resources Group 
2002); the Salvation Army parcel supported as many as 2,000 plants in 
1998 (K. Lyons, pers. comm., 1998). In 1998, the total number of 
individuals on the Polo Ranch site was approximately 1,259 (K. Lyons, 
in litt. 1997).

Previous Federal Action

    We first became aware of Polygonum hickmanii in 1992 during the 
development of the proposed listing rule for Chorizanthe robusta var. 
hartwegii (66 FR 10469). At that time, however, a name for the taxon 
had not formally been published, and so we did not consider it for 
listing under the Act. Once the name, P. hickmanii, was published by 
Hinds and Morgan (1995), we reviewed information in our existing files, 
in the California Natural Diversity Data Base, and new information on 
proposed projects being submitted to us for our review, and we 
determined that sufficient information existed to believe that listing 
may be warranted. Polygonum hickmanii was included in the list of 
candidate species published in the Federal Register on October 25, 1999 
(64 FR 57534).
    On November 9, 2000, we published a rule to propose (65 FR 67335) 
Polygonum hickmanii as an endangered species. At the time of the 
proposed listing, we determined that critical habitat for P. hickmanii 
was prudent, but deferred proposing critical habitat designation until 
a proposal to designate critical habitat could be developed for both P. 
hickmanii and Chorizanthe robusta var. hartwegii, a plant species 
already listed as endangered, because the two taxa share the same 
ecology and geographic location. We proposed critical habitat for both 
of these taxa on February 15, 2001 (66 FR 10469); the final critical 
habitat designation for Chorizanthe robusta var. hartwegii was 
published on May 29, 2002 (67 FR 37336). On May 22, 2002, the Center 
for Biological Diversity (CBD) filed a lawsuit alleging our failure to 
issue a final listing and critical habitat designation for P. hickmanii 
violated the time requirements specified in the Act. In settlement of 
this lawsuit, we agreed to complete the final listing and critical 
habitat designations by March 30, 2003.

Summary of Comments and Recommendations

    In the November 9, 2000, proposed rule to list the species (65 FR 
67335) and associated notifications, all interested parties were 
requested to submit factual reports or information that might 
contribute to the development of a final rule. A 60-day comment period 
closed on January 8, 2001. Appropriate State agencies, county 
governments, Federal agencies, scientific organizations, and other 
interested parties were contacted and requested to comment. A notice 
announcing the publication of the listing proposal was published in the 
Santa Cruz Sentinel on November 16, 2000. Another comment period opened 
on February 15, 2001, when the proposed critical habitat designation 
for Chorizanthe robusta var. hartwegii and Polygonum hickmanii was 
published. This 60-day comment period closed on April 16, 2001. A legal 
notice announcing the publication of the proposed critical habitat 
designation was published in the Santa Cruz Sentinel on February 24, 
2001. Additionally, we published a notice on November 21, 2002, 
announcing the availability of the draft economic analysis on the 
proposed critical habitat designation. This notice subsequently opened 
the public comment period for 15 days, until December 6, 2002, on the 
proposed listing rule, the proposed critical habitat designation, and 
the draft economic analysis on the proposed critical habitat 
designation.
    During the three comment periods, we received individually written 
comments from 17 parties. Twelve commenters expressed support for the 
listing proposal and the proposed critical habitat designation. One of 
the 17 commenters opposed the proposed critical habitat designation for 
Polygonum hickmanii. Four commenters were neutral, either on the 
proposed listing or the proposed critical habitat designation. 
Approximately 800 additional letters were submitted as part of a 
mailing campaign when critical habitat was proposed for the species. Of 
these, 23 were opposed, 1 was neutral, and the remaining were in 
support of the critical habitat designation.
    We reviewed all comments received for substantive issues and new 
information regarding the proposed listing of Polygonum hickmanii; most 
of the comments received were minor technical comments, and corrections 
and additions were made to the final rule accordingly. We also reviewed 
comments regarding the proposed critical habitat designation for P. 
hickmanii. Similar comments were grouped into two general issues 
relating specifically to biological issues, and procedural and legal 
issues. These are addressed in the summary that follows.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited the expert opinions of four peer reviewers 
regarding pertinent scientific or commercial data and assumptions 
relating to population status and biological and ecological information 
for the proposed listing of Polygonum hickmanii when it was published 
on November 9, 2000. Three of the four reviewers responded. These 
reviewers expressed support for the listing of the species and 
described the information included in the rule as factually correct to 
the best of their knowledge. Their comments are summarized in the 
following responses to comments and incorporated into the final rule.
    We also solicited independent opinions from three additional 
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, to review the proposed critical habitat 
designation when it was published on February 15, 2001. As recommended 
by the Service Directorate, we requested peer review from Sustainable 
Ecosystems Institute, as well as two other peer reviewers. All three of 
the peer reviewers supported the proposal, and provided us with 
comments that are summarized in the following responses to comments and 
incorporated into the final rule.

Issue 1: Biology and Methodology

    Comment 1: The proposed critical habitat designation is not 
properly supported by the best scientific information available. In 
particular, the Service makes ``numerous and varied unsupported 
assertions regarding the biology and habitat requirements'' of the 
species, and did not use the data available to them.

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    Response: As required by the Act and regulations (section 4(b)(2) 
and 50 CFR 424.12), we used the best scientific information available 
to determine areas that contain the physical and biological features 
that are essential for the conservation of Polygonum hickmanii. This 
information includes data from the California Natural Diversity Data 
Base (CNDDB 2000), geologic and soil survey maps (USGS 1989, SCS 1980), 
recent biological surveys and reports, our recovery plan for this 
species, additional information provided by interested parties, and 
discussions with botanical experts. We also conducted multiple site 
visits to the two locations that were proposed for designation.
    Comment 2: One peer reviewer suggested expanding the list of 
primary constituent elements to include such factors as seed 
germination requirements, substrate salinity, microreliefs and 
microclimates within local habitats, seasonal and yearly groundwater 
levels, and bird populations that migrate within the range of Polygonum 
hickmanii.
    Response: While we recognize that these factors may be important 
components of the habitats within which Polygonum hickmanii is found, 
we do not have sufficient information at this time that leads us to 
believe they are the primary factors essential to the conservation of 
P. hickmanii throughout its range.
    Comment 3: One peer reviewer commented that, while the Service had 
reasonably performed the difficult task of identifying the primary 
constituent elements, that the importance of certain processes (e.g., 
habitat disturbance, pollination, seed dispersal) was not sufficiently 
supported in the proposal. Specifically, the reviewer asserts that 
pollination activity within colonies more likely has a major effect on 
seed set and population persistence than does pollination activity 
between colonies, and that the majority of pollination occurs across 
short distances. The concern is that general statements of opinion 
could be translated into major management actions without adequate 
scientific basis.
    Response: The peer reviewer that supplied these comments was 
responding to a request to concurrently review critical habitat 
proposals for four plant taxa. While we were unable to confirm this 
with the peer reviewer, we believe that the concern was directed 
primarily to two other of the four species that have significantly 
larger distributions than Polygonum hickmanii, in which case the 
concern over discriminating between within-colony and between-colony 
pollinator distances would be more germane.
    With respect to P. hickmanii, the entire range of the species 
covers a distance of only 1.6 km (1 mi), with colonies clustered at the 
two proximal ends of this range. Although no information is available 
concerning the importance of pollinators to the long-term persistence 
of P. hickmanii, the distance between the colonies in each of the 
clusters is well within the 0.5 km (0.3 mi) distance that many native 
pollinators are thought to fly (Waser in litt. 2002).
    Comment 4: One commenter submitted a map portraying a recommended 
revision to the proposed critical habitat covering the parcel owned by 
American Dream/Glenwood that would have reduced the extent of critical 
habitat on that parcel. The commenter suggested that the swath of low-
elevation grasslands that occur along Carbonera Creek in the middle of 
the Glenwood Unit could be eliminated from critical habitat, as well as 
a portion of the Carbonera Creek watershed above them. The commenter 
suggested that the low-level grasslands do not support the primary 
constituent elements. Further the commenter suggested that the presence 
of existing residential development and the Scotts Valley High School 
along Glenwood Drive would make this area less desirable as a movement 
corridor for wildlife functioning as dispersal agents for P. hickmanii.
    Response: While this narrow area of low-elevation grasslands does 
not contain wildflower fields, it is a grassland plant community that 
supports pollinators and seed dispersal agents for the wildflower 
fields. In addition, the low-level grassland along Carbonero Creek 
provide an important corridor for dispersers between the colonies on 
the west side and suitable, but unoccupied wildflower field habitat on 
the east side of Glenwood Valley. Similarly, the low-level grasslands 
would also be an important corridor to potential pollinators between 
the two sides of Glenwood Valley once Polygonum hickmanii is 
reestablished on the east side of the valley. Therefore, the low-level 
grasslands that occur along Carbonero Creek do include primary 
constituent elements.
    The recent development of the Scotts Valley High School has reduced 
the extent of the corridor between the east and west sides of Carbonero 
Creek, and has therefore increased the conservation value and 
importance of the remaining corridor for pollinators and seed 
dispersers. In the background section of this final rule, we have 
expanded the discussion of potential seed dispersers and pollinators, 
which are part of the primary constituent elements, to clarify the role 
that these elements may play in the long-term conservation of the 
species.
    In the case of Polygonum hickmanii, we included conservation 
recommendations for this species in a multi-species recovery plan we 
published, which also addressed recovery actions for two listed insects 
and three listed plants (including the endangered Chorizanthe robusta 
var. hartwegii that occurs with P. hickmanii) in the Santa Cruz 
Mountains (Service 1998). Upon P. hickmanii being listed, we intend 
that the conservation recommendations included in this recovery plan 
will, in effect, become the recovery recommendation for this species. 
This plan identifies both State and Federal efforts for conservation of 
the plant and establishes a framework for agencies to coordinate 
activities and cooperate with each other in conservation efforts. The 
plan sets recovery priorities and describes site-specific management 
actions necessary to achieve conservation and survival of the plant.
    As part of the recovery recommendations for Polygonum hickmanii, 
the recovery plan states that all known sites would have to be in 
protected status, a habitat conservation plan would have to be in place 
with the City of Scotts Valley, and population numbers would have to be 
stable or increasing (Service 1998). The limited range of the species, 
the limited opportunities for conservation, and the existence of 
threats on all locations where it occurs makes conservation of the 
species very difficult. Further loss of habitat or compromising the 
ecological processes on which the species depends may eliminate the 
ability of the species to persist. Therefore, we believe it is 
necessary to include the low-elevation grasslands in the critical 
habitat designation.

Issue 2: Legal and Procedural Issues

    Comment 5: The proposed designation fails to designate specific 
areas as critical habitat, but instead used a landscape approach.
    Response: The critical habitat designation delineates areas that 
support locations of known individuals of Polygonum hickmanii and areas 
with the primary constituent elements we believe essential to the long-
term conservation of P. hickmanii. In fact, the distribution of P. 
hickmanii is so restricted that direct and indirect affects to its 
habitat will make recovery particularly challenging. However,

[[Page 16974]]

given the limited distribution of the species, we were able to map 
critical habitat with a higher level of accuracy and therefore believe 
we have identified specific areas meeting the definition of critical 
habitat.
    Comment 6: The proposed designation improperly includes areas not 
essential to the conservation of Polygonum hickmanii.
    Response: As result of mapping limitations, not all parcels of land 
proposed as critical habitat contained habitat components essential to 
the conservation of Polygonum hickmanii. In developing the final 
designation, we reevaluated and modified the boundaries of the proposed 
designation as appropriate to exclude areas that did not contain the 
primary constituent elements. The use of recently acquired high-
resolution aerial photographs (April 2000) enabled us to more 
accurately map the designation. However, due to our mapping scale, some 
areas not essential to the conservation of P. hickmanii may be included 
within the boundaries of final critical habitat. Certain features, such 
as buildings, roads, other paved areas and urban landscaped areas do 
not contain the primary constituent elements for the species. Service 
staff at the contact numbers provided are available to assist 
landowners in discerning whether or not lands within the critical 
habitat boundaries actually possess the primary constituent elements 
for the species.
    Comment 7: The commenter stated that the proposed designation 
should have delineated occupied and unoccupied habitat areas. Further, 
the commenter stated that there are a lack of data to demonstrate that 
colonies do in fact temporarily disappear or expand into areas 
surrounding the immediate vicinity of the current year's colony.
    Response: In this final designation, both critical habitat units 
are occupied by either standing plants or support a Polygonum hickmanii 
seed bank, but each of the units probably contains areas that could be 
considered unoccupied by the species. ``Occupied'' is defined here as 
an area that may or may not have had above-ground standing plants of P. 
hickmanii during current surveys, but if no standing plants are 
apparent, the site likely contains a below-ground seed bank of 
undeterminable boundary. All occupied sites contain some or all of the 
primary constituent elements and are essential to the conservation of 
the species, as described below. ``Unoccupied'' is defined here as an 
area that contains no above-ground standing plant of P. hickmanii and 
is unlikely to contain a viable seed bank (e.g., soils are currently 
deeper than what is optimal for the Polygonum hickmanii). The inclusion 
of unoccupied habitat in our critical habitat designation reflects the 
dynamic nature of the habitat and the life history characteristics of 
this taxon. Unoccupied habitat provides areas into which populations 
might expand, provides connectivity or linkage between colonies within 
a unit, and supports populations of pollinators and seed dispersal 
organisms.
    Determining the specific areas that this taxon occupies is 
difficult for at least two reasons: (1) The way the current 
distribution of Polygonum hickmanii colonies is mapped can be variable, 
depending on the scale at which concentrations of individuals are 
recorded (e.g., many small concentrations versus one large 
concentration); and (2) depending on the climate and other annual 
variations in habitat conditions, the extent of the distributions of 
annual species such as P. hickmanii may either shrink and temporarily 
disappear or, if there is a residual seedbank present, enlarge and 
cover a more extensive area (Baskin and Baskin 1998). Because it is 
logistically difficult to determine how extensive the seed bank is at 
any particular site and because above-ground plants may or may not be 
present in all patches within a site every year, it would be difficult 
to quantify what proportion of each critical habitat unit may actually 
be occupied by P. hickmanii.
    While the areas designated as critical habitat may include areas 
that do not currently support Polygonum hickmanii, we believe these 
areas are within the geographic area presently occupied by the species. 
However, even if they were considered to be outside this geographical 
area presently occupied, for the reasons discussed below we have 
determined that they are essential to the conservation of the P. 
hickmanii. Occupied areas, as well as the adjacent grassland areas 
provide the essential life-cycle needs of the species and provide some 
or all of the habitat components essential for the conservation of P. 
hickmanii. We are designating critical habitat for P. hickmanii in all 
areas that are known to currently be occupied by the species. In 
addition, we believe it is necessary to protect unoccupied habitat on 
the slopes above the known occurrences of P. hickmanii because its 
persistence depends on maintaining the stability of the slopes on which 
it occurs. As discussed in the Background section of this rule, the 
characteristics of the geology and soils in the area make these slopes 
naturally prone to soil erosion. Human activities on the slopes above 
occurrences of P. hickmanii can exacerbate the natural rates of erosion 
and increase the risk of extirpation to P. hickmanii on the slopes 
below. At this time, we are not aware of additional populations of P. 
hickmanii nor additional areas that can be occupied by the species in 
the future.
    Comment 8: The commenter expressed concern about whether there was 
any new information to be found that would have bearing on the proposed 
endangered status of Polygonum hickmanii or on the identification of 
habitats essential to the species.
    Response: We have reviewed new information from the CNDDB, 
biological surveys, and botanists in the field familiar with the 
species, and we have made numerous visits to field sites since the 
early 1990s. Based upon this information, we believe that the range of 
the species is limited to the Scotts Valley area. Since the early 
1990s, habitat for the species has been destroyed due to several 
development projects, and additional habitat has been altered due to 
secondary impacts resulting from development. According to a review of 
the socioeconomic information available about the geographic area 
presented in the draft economic analysis, pressure on the remaining 
suitable habitat for the species from residential and commercial 
development and recreation has increased steadily since we first became 
aware of the species in the early 1990s. The increased pressure on the 
limited area currently available for this species reinforces its 
endangered status and the need to designate critical habitat.
    Comment 9: The Service has failed to properly consider the economic 
and other impacts of designating particular areas as critical habitat.
    Response: The draft economic analysis for P. hickmanii was first 
published concurrently with that for Chorizanthe robusta var. 
hartwegii. We accepted comments on the draft economic analysis during a 
30-day comment period for the latter species that started on September 
19, 2001 (66 FR 48227). However, this comment was made prior to a 
subsequent reopening of the comment period for the draft economic 
analysis. On November 21, 2002 (66 FR 700199), we published another 
notice in the Federal Register announcing again the availability of the 
draft economic analysis for the critical habitat for Polygonum 
hickmanii. This notice opened a 15-day public comment period on the 
draft economic analysis for the proposed designation of critical 
habitat for P. hickmanii. All comments received regarding the economic

[[Page 16975]]

analysis for P. hickmanii are addressed in this Summary of Comments and 
Recommendations section. Additionally, an addendum to the economic 
analysis, incorporating the comments received on the economic analysis, 
has been completed and is available upon request (see ADDRESSES). We 
believe this economic analysis and its addendum along with this final 
rule do properly consider the economic and other impacts of designating 
particular areas as critical habitat.
    Comment 10: The Service has improperly bifurcated or separated its 
consideration of the economic impacts and scientific analysis by not 
preparing the economic analysis at the time of the proposed critical 
habitat designation.
    Response: Pursuant to section 4(b)(2) of the Act, we are to 
evaluate, among other relevant factors, the potential economic effects 
of the designation of critical habitat for Polygonum hickmanii. We 
published our proposed designation in the Federal Register on February 
15, 2001 (66 FR 10469). At that time, our Division of Economics and 
their consultants, Industrial Economics, Inc., initiated the draft 
economic analysis. The draft economic analysis was made available for 
public comment and review beginning on November 21, 2002 (67 FR 70199), 
as well as in a previous 30-day open comment period associated with 
Chorizanthe robusta var. hartwegii (September 19, 2001, 66 FR 48227). 
Following the 15-day public comment period on the proposal and draft 
economic analysis opened on November 21, 2002, a final addendum to the 
economic analysis was developed. Both the draft economic analysis and 
final addendum were used in the development of this final designation 
of critical habitat for P. hickmanii. Please refer to the Economic 
Analysis section of this final rule for a more detailed discussion of 
these documents.
    Comment 11: The Service has not provided a fair and meaningful 
opportunity for comment on its proposed critical habitat designation.
    Response: In our proposed rule to list Polygonum hickmanii as 
endangered on November 9, 2000 (65 FR 67335), we found that designating 
critical habitat was prudent, but we stated that we would propose 
critical habitat concurrently with Chorizanthe robusta var. hartwegii 
in the future. An open comment period was held at that time to receive 
comments on the proposed listing, as well as the prudency 
determination. We published a proposed rule to designate critical 
habitat for P. hickmanii on February 15, 2001 (66 FR 10469), and 
accepted comments from the public for 60 days, until April 16, 2001. 
The comment period was reopened from November 21, 2002, to December 6, 
2002 (67 FR 70199), to allow for additional comments on the proposed 
designation and comments on the draft economic analysis of the proposed 
critical habitat.
    We contacted all appropriate State and Federal agencies, county 
governments, elected officials, and other interested parties and 
invited them to comment. In addition, we invited public comment through 
the publication of a legal notice in the Santa Cruz Sentinel on 
November 16, 2000, after the proposed rule to list was published, and 
again on February 24, 2001, after the proposed critical habitat 
designation was published. We provided notification of the draft 
economic analysis through telephone calls, letters, and news releases 
faxed and/or mailed to affected elected officials, local jurisdictions, 
and interest groups. Additionally, the public had two opportunities to 
request a public hearing, but none was requested.
    Comment 12: The Service should prepare and consider an 
environmental impact statement in keeping with the National 
Environmental Policy Act of 1969 (NEPA).
    Response: We have determined that an Environmental Assessment and/
or an Environmental Impact Statement, as defined under the authority of 
NEPA, need not be prepared in connection with regulations adopted 
pursuant to section 4(a) of the Endangered Species Act, as amended. A 
notice outlining our reason for this determination was published in the 
Federal Register on October 25, 1983 (48 FR 49244). Also, the public 
involvement and notification requirements under both the Endangered 
Species Act and the Administrative Procedure Act provide ample 
opportunity for public involvement in the process, similar to the 
opportunities for public involvement and economic analysis of effects 
that would be provided in the NEPA process.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations 
(50 CFR part 424) promulgated to implement the Act set forth the 
procedures for adding species to the Federal lists. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act. These 
factors and their application to Polygonum hickmanii are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
Of Its Habitat or Range

    In addition to the colonies of Polygonum hickmanii at the Glenwood 
and Polo Ranch sites, other colonies of P. hickmanii may have occurred 
in Scotts Valley prior to publication of the species name in 1995. An 
existing housing development bordering the south side of the Glenwood 
site (Glen View) was built in the mid-1980s, and one development 
bordering the south side of the Polo Ranch site (Navarra Drive) was 
built in the 1970s. However, the environmental analyses done at those 
times would not have recognized P. hickmanii as a distinct taxon.
    None of the occupied habitat for Polygonum hickmanii is targeted 
for direct destruction. However, all occupied habitat will be subject 
to habitat alteration resulting from current and proposed projects. At 
the Glenwood site, construction of a high school was initiated in June 
1998. The colony of P. hickmanii on this site is within an area 
designated as a grassland preserve intended to protect a number of 
sensitive plant species, including P. hickmanii, Minuartia californica 
(California sandwort), Plagiobothrys diffusus (San Francisco popcorn 
flower), and the endangered Chorizanthe robusta var. hartwegii. The 
preserve is 2 ha (4 ac) in size and is adjacent to a wetland preserve 
of slightly smaller size. The combined area of the two preserves form a 
3.6 ha (9 ac) area, linear in shape, sandwiched between high school 
playing fields to the north and the existing Glen View development 
(also known as Casa Way) to the south. The colony of P. hickmanii is 18 
m (60 ft) away from the edge of the preserve nearest to the playing 
field. A management plan for the grasslands preserve includes 
prescriptions for boundary protection, habitat enhancement, control of 
nonnative plant species, and a 10-year monitoring program (BRG 1998). 
Although the effectiveness of this management plan has not yet been 
demonstrated, P. hickmanii will likely still be subject to habitat 
alteration due to the small size of the preserve and its proximity to 
other land uses. Problems with managing small preserves within urban 
areas have been documented previously (Jensen 1987, Clark et al. 1998, 
Howald 1993, Service 1995). See Factor E for additional discussion of 
inadequate preserve design on the long-term conservation of plants.
    The kinds of habitat alteration that are anticipated to result from 
the high school project include changes in

[[Page 16976]]

surface hydrologic conditions due to the increased watering of the 
ballfield upslope from the preserve; changes in surface water quality 
due to the application of fertilizers, herbicides, and pesticides on 
the ballfield and adjacent areas up slope from the preserve; an 
increase in the number of nonnative plant species that will likely 
invade from adjacent newly altered areas; and an increase in the amount 
of soil erosion, soil compaction, and disturbance to the soil crust 
caused by the increased numbers of students, pets, and bicycles coming 
into the preserve from adjacent areas. The nature of the thin soils and 
the crusts of mosses and lichens they support make them particularly 
vulnerable to any form of surface disturbance (Belknap 1990).
    The Scotts Valley Water District constructed a series of pipelines, 
maintenance roads, and tanks to distribute recycled water in the 
northern Scotts Valley area (EMC Planning Group 1998; Scotts Valley 
Water District 1998). One pipeline and an all-weather maintenance road 
pass through the southwestern corner of the preserve and continue to 
the north and west onto a parcel owned by the Salvation Army where a 
water tank would be installed. As originally proposed, this route was 
to come within 23 m (75 ft) of the colonies of Polygonum hickmanii on 
the Salvation Army parcel and within 18 m (60 ft) of the endangered 
Chorizanthe robusta var. hartwegii (K. Lyons, pers. comm., 1998). 
However, when road grading was initiated in July 1999, grading plans 
were not followed closely. Moreover, measures to minimize and mitigate 
impacts to sensitive resources included in the approved project were 
not implemented. As a result, road grading came to within 3 m (10 ft) 
of P. hickmanii and to within 6 m (20 ft) of C. r. var. hartwegii on 
the Salvation Army parcel; on the adjacent high school preserve, 
individuals of C. r. hartwegii were destroyed. (Vince Cheap, California 
Native Plant Society, in litt. 1999; V. Cheap, in litt. 2001).
    The kinds of habitat alteration that are anticipated to impact 
Polygonum hickmanii from the Water District's project include changes 
in surface hydrology due to the placement of the road upslope from the 
colonies; changes in surface water quality due to the application of 
herbicides, pesticides, and tackifiers (dust reducing substances) on 
the road and roadsides upslope from the colonies; an increase in the 
amount of soil siltation from the upslope roadbank; soil erosion, soil 
compaction, and disturbance of the soil crust; and an increase in the 
number of nonnative plant species that will likely invade from the 
road.
    A visit to the Glenwood site confirmed that the nonnative plant 
Genista monspessulana (French broom) has invaded to within a few feet 
of one of the colonies of Polygonum hickmanii in the last few years 
(Carole Kelley, Friends of Glenwood, pers. comm., 1998). If not 
controlled, this invasive plant could quickly eliminate habitat for the 
P. hickmanii. French broom is considered a pest species, which in some 
places forms impenetrable thickets that displace native vegetation and 
lower habitat value for wildlife (Habitat Restoration Group, no date; 
Bossard, et al. 2000).
    A housing development proposed for the Polo Ranch site includes 30 
to 40 housing units clustered on 7.3 of 47.0 ha (18 of 116 ac), with 
the remaining 38 ha (95 acres) kept as open space (City of Scotts 
Valley 1998). At the time the proposed rule to list Polygonum hickmanii 
was prepared, the proposed development placed houses and roadways 
within 18 m (60 ft) or closer to five out of six colonies of P. 
hickmanii and separated the colonies from each other, with three of the 
six colonies isolated on all sides either by existing or proposed 
dwellings and roadways. As of 2002, the planned layout of houses has 
been modified to include a 31-m (100-ft) setback from all but one of 
the colonies (M. Fodge, Planning Department, City of Scotts Valley, 
pers. comm., 2002; G. Deghi, consultant, pers. comm., 2002).
    Alterations of habitat for Polygonum hickmanii that are likely to 
occur as a result of the Polo Ranch development are changes in surface 
hydrologic conditions due to the grading of roads and lots; soil 
erosion, soil compaction, and disturbance of the soil crust by humans, 
pets, and bicycle traffic; inadvertent (i.e., aerial drift) and 
intentional application of herbicides, pesticides, and fertilizers on 
roadsides and yards; inadvertent introduction of nonnative species 
(both weedy and ornamental); and dumping of yard wastes. Examples of 
alteration of habitat that have occurred on grasslands north of the 
backyards of existing housing along Navarra Drive (along the south edge 
of the Polo Ranch property) include gates and pathways leading from 
backyards onto the grassland, ivy creeping over fences and onto the 
grassland, oaks (Quercus sp.) planted within the grassland, and shade 
created by planted backyard trees (K. Lyons, pers. comm., 1998).
    Although two of the projects (high school and recycled water 
distribution system) include plans for conservation of Polygonum 
hickmanii through development-related mitigation, and the third project 
(Polo Ranch) would be expected to do so as well, the successful 
implementation of these mitigation plans has not been demonstrated. In 
particular, the size and characteristics of preserve areas and open 
spaces and the management actions prescribed through the environmental 
review process (see Factor D) are unlikely to be biologically adequate 
to ensure the long-term conservation of P. hickmanii and its habitat. 
In addition, since P. hickmanii colonies will be in preserves or open 
spaces that are small in area, support small numbers of individuals, 
and consist of degraded habitat, or that continue to receive secondary 
effects of adjacent human activities, they become more vulnerable to 
extirpation from naturally occurring events (see Factor E).
    All habitat for Polygonum hickmanii is also threatened in general 
by the encroachment of nonnative grasses from the surrounding 
grasslands. Although several species of nonnative grass (e.g., Vulpia 
myuros) grow within the wildflower fields, these patches for the most 
part do not support the abundant growth of nonnative grasses (Bromus 
sp.) that occur on the adjacent, more mesic grassland habitat. These 
nonnative grasses on the mesic grasslands do not compete with P. 
hickmanii in the classic sense (competition for light, water, 
nutrients). However, the tall culms (stems) of nonnative grasses can 
physically drape over patches of wildflower field habitat, particularly 
the smaller patches, and deposit a mat of litter (thatch) that 
physically prohibits the species within the wildflower field from 
appearing. Because nonnative grasses and herbs produce more biomass 
than their native counterparts, they also produce more litter (Belknap 
et al. 2001). Although decomposition rates for nonnative species are 
likely no slower than those of native species, their faster rate of 
biomass production results in a greater accumulation of litter. Other 
cases of native species being overtaken by litter accumulation produced 
by nonnatives have been noted in desert ecosystems (Jayne Belknap, 
Biological Resources Division, pers. comm., 1998) and on the California 
Channel Islands (Rob Klinger, The Nature Conservancy, pers. comm., 
1998).
    In summary, habitat alteration and destruction, including urban 
development, road construction, and their attendant secondary impacts 
(including increased trampling from humans, pets, bicycles, and 
installation and maintenance of landscaped areas),

[[Page 16977]]

are threats to the species. These activities cause soil erosion, soil 
compaction, disturbance of the soil crust, changes in soil hydrology, 
changes in water quality, encroachment of nonnative species, and 
accumulation of thatch.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization or vandalism are not known to be threats to this 
species.

C. Disease or Predation

    We found no evidence that disease is a factor affecting this 
species. Predation by cattle, livestock, or other wildlife species is 
not known to occur.

D. The Inadequacy of Existing Regulatory Mechanisms

    Polygonum hickmanii currently receives no protection under Federal 
law, and it is not currently listed by the State of California.
    Chorizanthe robusta var. hartwegiana, an endangered species, 
frequently occurs within the same wildflower field habitat as Polygonum 
hickmanii; however, in two locations P. hickmanii occurs without the 
former species. Even though C. r. var. hartwegiana was federally listed 
as endangered in 1994, and critical habitat was subsequently designated 
in 2002, these regulatory actions, and subsequent protections afforded 
the species and its habitat do not fully protect the frequently co-
occurring P. hickmanii under the Act for several reasons. First, in 
context of a consultation under section 7 of the Act, because of the 
restricted distribution of P. hickmanii within the wildflower field 
habitat, there may be circumstances in which an action proposed by a 
Federal action agency may jeopardize the continued existence of P. 
hickmanii or destroy or adversely modify its critical habitat, while 
the same action may not result in jeopardy or adverse modification for 
C. r. var. hartwegiana. In addition, because of differences in 
phenology between the two species (flowering period in P. hickmanii is 
beginning when that of C. r. var. hartwegiana is ending), it is also 
possible that the timing of an activity (e.g., grazing or spraying) 
could be a greater threat to one species than the other. Second, even 
though P. hickmanii shares the same wildflower field habitat with C. r. 
var. hartwegiana, it is possible that over time, the distribution of 
the two species among the wildflower field patches could shift, 
resulting in less overlap between the two species than is evident at 
this point in time. Thus, regulatory protections for C. r. var. 
hartwegiana may provide less protections for P. hickmanii. Third, 
because of the more restricted distribution of P. hickmanii and life 
history differences between the two plants, recovery actions 
implemented for C. r. var. hartwegiana may be inadequate to provide for 
the conservation of P. hickmanii.
    The California Environmental Quality Act (CEQA) requires a full 
disclosure of the potential environmental impacts of proposed projects. 
The lead agency is the public agency with primary authority or 
jurisdiction over the project, and that agency is responsible for 
conducting a review of the project and consulting with other agencies 
concerned with the resources affected by the project. Section 15065 of 
the CEQA Guidelines requires a finding of significance if a project 
potentially ``reduce(s) the number or restrict(s) the range of a rare 
or endangered plant or animal.'' Species eligible for, but not yet 
listed by the State as threatened or endangered, are given the same 
protection as those species officially listed by State or Federal 
governments. The Rare Plant Scientific Advisory Committee for the 
California Native Plant Society has determined that Polygonum hickmanii 
meets the criteria for being included on CNPS' ``List 1B.'' The plants 
on List 1B meet the definitions of section 1901, chapter 10 of the 
California Department of Fish and Game Code, and are therefore eligible 
for State listing. It is mandatory that plants on List 1B be fully 
considered during preparation of environmental documents relating to 
CEQA. Once significant effects are identified, the lead agency may 
require mitigation for effects through changes in the project, or the 
lead agency may decide that overriding considerations make mitigation 
infeasible. In the latter case, projects may be approved that cause 
significant environmental damage, such as destruction of listed 
species. Therefore, the protection of listed species through CEQA 
depends upon the discretion of the lead agency involved; however, 
findings of ``overriding considerations'' are infrequent.
    Inclusion of mitigation measures in a project approved through the 
CEQA process does not guarantee that such measures are implemented. The 
recycled water distribution project approved by the Scotts Valley Water 
District included measures to avoid and mitigate impacts to sensitive 
resources, including those for Polygonum hickmanii and Chorizanthe 
robusta var. hartwegii. However, grading for this project was initiated 
without implementing those measures, which resulted in a much narrower 
buffer zone left between the plant populations and the grading activity 
(Carl Wilcox, California Department of Fish and Game, in litt. 1999).
    Certain local agencies are exempt from city and county regulations 
in accordance with chapter 1, paragraphs 53094 and 53096, of the State 
of California regulations on planning, zoning, and development laws 
(Governor's Office of Planning and Research 1996). The High School 
project for the Scotts Valley Unified School District is exempt from 
local permitting requirements; therefore, no permits or approvals were 
required from the City of Scotts Valley. Additionally, the recycled 
water distribution project for the Scotts Valley Water District is 
similarly exempted; therefore, no permits or approvals are required 
from either the City of Scotts Valley or the County of Santa Cruz. In 
July 1999, the Water District proceeded with road and tank pad grading 
for this project. This activity was initiated without fulfilling 
mitigation measures that called for sensitive areas to be flagged and 
fenced ahead of time, and resulted in grading that went beyond the 
scope of work for the project. Although the County of Santa Cruz 
notified the Water District that the additional grading was not 
exempted from applicable regulations, the only consequence is that the 
county has requested that the damaged areas be satisfactorily restored 
(Alvin James, County of Santa Cruz, in litt. 1999).
    The establishment and implementation of a management plan for the 
preserve at the High School site does not provide for enforcement 
authority to maintain the physical integrity of the preserve.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The design of preserves and open spaces related to project 
mitigation to date has been insufficient to provide for the long-term 
conservation of Polygonum hickmanii and other sensitive species that 
occur in the wildflower fields in Scotts Valley. Additionally, the 
threat of random extinction is increased in small populations of 
limited distribution (please see the ``Random Extinction'' section 
below for further discussion).
Inadequate Preserve Design
    The need for adequate preserve design has been discussed by many 
biologists (Jensen 1987; Shafer 1995; Rathcke and Jules 1993; Kelly and 
Rotenberry 1993). To increase the certainty that a species will persist 
over a given interval of time,

[[Page 16978]]

adequate habitat needs to be protected and land uses adjacent to the 
preserve need to be compatible with maintaining the integrity of the 
preserve. Habitat is not restricted solely to the area actually 
occupied by the species. It must include an area that is large enough 
to maintain the ecological functions upon which the species depends and 
have a ratio of edge to total area that minimizes fragmentation and 
edge effects.
    Failure to protect sufficient habitat results in the eventual 
decline of the target species. Small preserves adjacent to urban areas 
have additional stress placed on them due to the need to manage a host 
of human-caused impacts. The increased stress urban wildland areas 
receive has been documented by many authors (Keeley 1993).
    In the case of Polygonum hickmanii at the School District Preserve, 
the site remained unfenced and unsigned for several years, was subject 
to bicycle and heavy equipment traffic, and served as a repository for 
yard waste (C. Kelley, in litt. 1999). Local residents also have used 
the preserve for golf practice (Biotic Resources Group 2002). A 
management plan for the preserve was completed in 1998 (Wittwer, in 
litt. 2002). However, prescribed management actions are not always 
implemented according to schedule due to budget limitations.
    Habitat fragmentation also affects plant-pollinator interactions in 
a number of ways. The abundance of specific pollinators may decline due 
to the elimination of nesting sites, decreases in food source plants 
due to changes in composition of the plant community, increases in 
competition from nonnative pollinators, and increases in the exposure 
to pesticides (Rathcke and Jules 1993; Jennersten 1988; Kearns and 
Inouye 1997). In plant species that are obligate outcrossers (those 
that require pollinators to effect seed development), reduced 
pollinator availability can result in limited seed production. Even if 
a plant species is not an obligate outcrosser, genetic variability 
within the plant population can be reduced with potentially deleterious 
long-term consequences (see discussion below on random extinction). We 
believe the effects of habitat fragmentation discussed above are 
similar to those that could affect the long-term persistence of the 
Polygonum hickmanii.
    Ecological processes that would be important to maintain within 
preserve areas for Polygonum hickmanii include, but are not limited to, 
the integrity of edaphic (soil) conditions, hydrologic processes 
(surface flows), the associated ``wildflower field'' plant community, 
plant-pollinator interactions, and seed dispersal mechanisms. 
Maintaining such processes will be severely compromised by the small 
size of the areas being set aside as preserves or open spaces, the 
extent of edge subject to external influences, and the particular kinds 
of adjacent land use to which the preserves will be subject. Threats 
resulting from alteration of habitat due to adjacent changes in land 
use (discussed in Factor A) are exacerbated by the small size of the 
preserves and the proximity of nearly all of the colonies to the edges 
of the preserves or open spaces, or to roads. Distances of less than 24 
m (80 ft) are not considered to be effective at buffering from chemical 
pollutants (e.g., herbicides, pesticides, and other contaminants) 
(Conservation Biology Institute (CBI) 2000). Depending on site 
configuration or circumstances, buffers of up to 91 m (300 ft) may not 
be adequate to provide sufficient buffering from invasive animals and 
increased fire frequency (CBI 2000) .
Random Extinction
    This species is considered to have a high risk of extinction in the 
wild in the immediate future based on criteria put forth by the World 
Conservation Union, as modified for plants (Keith 1998). Species with 
few populations and individuals are vulnerable to the threat of 
naturally occurring events, causing extinction through mechanisms 
operating either at the genetic level, the population level, or the 
landscape level. Decrease in genetic variability will reduce the 
likelihood that individuals in a population will persist in a changing 
environment. Additionally, populations with lower levels of genetic 
diversity are more likely, on average, to experience reduced 
reproductive success due to inbreeding depression. Species with few 
populations or those that are low in number may be subject to forces at 
the population level that affect their ability to complete their life 
cycles successfully. For example, reduced numbers of individuals may 
lead to a reduction in number of pollinators and subsequently seed set. 
Additionally, if the host plants are partially self-incompatible, 
reduction in population size may lead to increased self-pollination and 
may reduce the level of genetic variability. At the landscape level, 
random natural events, such as storms, drought, or fire, could destroy 
a significant percentage of individuals or entire populations; a hot 
fire could destroy a seedbank as well. The restriction of colonies to 
small sites increases their risk of extinction from such naturally 
occurring events.
    The genetic characteristics of Polygonum hickmanii have not been 
investigated; therefore, the degree to which these characteristics 
contribute to the likelihood of P. hickmanii being vulnerable to 
extinction for these reasons is unknown. However, random events 
operating at the population and landscape levels clearly have the 
potential for increasing the chance of extinction for P. hickmanii.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this taxon in determining the actions to take in this rule. 
Based on this evaluation, the appropriate action is to list Polygonum 
hickmanii as endangered. The species is threatened with extinction due 
to habitat alteration resulting primarily from urban development, 
inadequate preserve design, and vulnerability to naturally occurring 
events due to low numbers of individuals and occupied acreage of the 
entire taxon. All of the colonies are on private lands. Although 
conservation efforts have been prescribed as part of mitigation for two 
of the three projects (high school and recycled water distribution 
project), and are expected to be proposed for the third project (Polo 
Ranch development), the small extent of occupied habitat, small colony 
sizes, and imminent threats lessen the chance that such efforts will 
lead to secure, self-sustaining colonies at these sites.

Critical Habitat

    Section 3 of the Act defines critical habitat as--(i) the specific 
areas within the geographic area occupied by a species, at the time it 
is listed in accordance with the Act, on which are found those physical 
or biological features (I) essential to the conservation of the 
species, and (II) that may require special management consideration or 
protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon determination that 
such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered species or a threatened species to the 
point at which listing under Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions authorized, funded, or carried 
out by a Federal agency. Section 7 of the Act also

[[Page 16979]]

requires conferences on Federal actions that are likely to result in 
the destruction or adverse modification of proposed critical habitat. 
Aside from the added protection that may be provided under section 7, 
the Act does not provide other forms of protection to lands designated 
as critical habitat. Because consultation under section 7 of the Act 
does not apply to activities on private or other non-Federal lands that 
do not involve a Federal nexus, critical habitat designation would not 
afford any additional regulatory protections under the Act against such 
activities.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known, and 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 except 
in those circumstances determined by the Secretary. Our regulations (50 
CFR 424.12(e)) also state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.''
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude areas from critical 
habitat designation when the benefits of exclusion outweigh the 
benefits of including the areas within critical habitat, provided the 
exclusion will not result in extinction of the species.
    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. This policy 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.
    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 populations may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, it is 
important to understand that critical habitat designations do not 
signal that habitat outside the designation is unimportant or may not 
also be required for recovery. Areas outside the critical habitat 
designation will continue to be subject to conservation actions that 
may be implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the Act's section 7(a)(2) jeopardy 
standard and the section 9 prohibitions, as determined on the basis of 
the best available information at the time of the action. Federally 
funded or assisted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. Similarly, critical habitat designations made on the 
basis of the best available information at the time of designation will 
not control the direction and substance of future recovery plans, 
habitat conservation plans, or other species conservation planning 
efforts if new information available to these planning efforts calls 
for a different outcome.

Methods

    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12), we used the best scientific and commercial data available to 
determine areas that contain the physical and biological features that 
are essential for the conservation of Polygonum hickmanii. This 
information included data from the CNDDB 2000, geologic and soil survey 
maps (USGS 1989, SCS 1979), geologic information contained in project 
documents (Impact Sciences 1998, 2000), recent biological surveys and 
reports, our multi-species recovery plan for the Santa Cruz Mountatins 
that provided conservation recommendations for Polygonum hickmanii, 
additional information provided by interested parties, and discussions 
with botanical experts. We also conducted multiple site visits to the 
two locations that are being designated as critical habitat.
    In addition to the above, we also reviewed the goals for Polygonum 
hickmanii included in our multi-species recovery plan, which addresses 
this species and other taxa from the Santa Cruz Mountains (Service 
1998). The plan included the following conservation recommendations: 
(1) Secure and protect habitat for Polygonum hickmanii through habitat 
conservation plans (HCPs), conservation easements, or acquisition; (2) 
manage habitat for the species through such actions as controlling 
nonnative species, reducing impacts from recreation, restoring degraded 
sites, and monitoring regularly; (3) learn more about the life history, 
ecology, and population dynamics of the species that will contribute to 
developing appropriate management strategies; (4) increase public 
awareness of the species and its associated habitats through various 
outreach efforts; and (5) use an adaptive management approach to revise 
management strategies over time. Critical habitat alone is not expected 
to recover the species, and it is only one of many strategies that can 
assist in such recovery.
    Determining the specific areas that this taxon occupies is 
difficult for several reasons: (1) The distribution of Polygonum 
hickmanii appears to be more closely tied to the presence of the Santa 
Cruz mudstone and Purisima soils than to specific plant communities; 
the plant communities may undergo changes over time, which, due to the 
degree of cover that is provided by that vegetation type, may or may 
not favor the growth of P. hickmanii above ground; (2) the way the 
current distribution of P. hickmanii is mapped can be variable, 
depending on the scale at which patches of individuals are recorded 
(e.g., many small patches versus one large patch); and (3) depending on 
the climate and other annual variations in habitat conditions, the 
extent of the distributions may either shrink and temporarily 
disappear, or, if there is a residual seedbank present, enlarge and 
cover a more extensive area. Because it is logistically difficult to 
determine how extensive the seed bank is at any particular site and 
because above-ground plants may or may not be present in all patches 
within a site every year, it would be difficult to quantify what 
proportion of each critical habitat unit may actually be occupied by P. 
hickmanii. Therefore, within the grassland habitat, patches of 
unoccupied habitat are interspersed with patches of occupied habitat; 
the inclusion of unoccupied habitat in our

[[Page 16980]]

critical habitat units reflects the dynamic nature of the habitat and 
the life history characteristics of this taxon. Unoccupied areas 
provide areas into which populations might expand, provide connectivity 
or linkage between colonies within a unit, and support populations of 
pollinators and seed dispersal organisms. Other areas, specifically the 
steeper slopes above the occurrences of P. hickmanii, and including 
non-grassland areas that extend up to the ridgelines, are necessary to 
maintain the hydrologic and edaphic characteristics of the wildflower 
field patches where P. hickmanii is found.

Summary of Changes From the Proposed Critical Habitat Designation

    Based on a review of public comments received on the proposed 
designation of critical habitat, we reevaluated our proposal and made 
several changes to the final designation of critical habitat. These 
changes include the following:
    (1) The description of the primary constituent elements was 
modified and clarified. One peer reviewer suggested expanding the list 
of primary constituent elements; we did not believe it was appropriate 
to do so (see comment 2 in Summary of Comments above). However, we did 
incorporate some of the additional elements suggested by the peer 
reviewer and included discussion of them as features of the landscape 
that need special management or protections. In the third primary 
constituent element (``grassland plant community that supports the 
wildflower field habitat that is stable over time''), we removed the 
reference to nonnative species being absent or at low densities in 
recognition that such areas, even if they contain nonnative species, 
may have the potential to be restored so as to support Polygonum 
hickmanii in the future. Two other primary constituent elements 
(pollinator activity between existing colonies of P. hickmanii, and 
seed dispersal mechanisms between existing colonies and other 
potentially suitable sites) were removed as individual primary 
constituent elements. Instead, these two elements were added into 
primary constituent element 3. We did this because we think it 
more accurately portrays the role of pollinators and seed dispersers as 
integrated parts of a healthy plant community that could support P. 
hickmanii, rather than as elements whose absence would lead the public 
to conclude that an area was not critical habitat.
    (2) One primary constituent element (``physical processes * * * 
that support natural dune dynamics'') was erroneously included in the 
proposed rule; it has been removed from this final rule.
    (3) We added a section describing the Special Management Needs or 
Protections that Polygonum hickmanii may require. We believe that this 
new section will assist land managers in developing strategies for 
conservation and protection of P. hickmanii on lands they manage.
    (4) We made revisions to the boundary lines on both critical 
habitat units. The purpose of these changes was to remove areas that do 
not contain the primary constituent elements. The use of recently 
acquired high-resolution aerial photographs (April 2000) enabled us to 
more precisely map critical habitat. These changes reduced the Glenwood 
Unit by 4 percent (3 ha, 8 ac). The Polo Ranch Unit was reduced 15 
percent (5 ha, 13 ac) by eliminating some of the riparian gallery 
forest at the western edge of the unit that borders Carbonero Creek and 
does not support any of the primary constituent elements.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features (primary 
constituent elements) that are essential to the conservation of the 
species and that may require special management considerations or 
protection. These include, but are not limited to: Space for individual 
and population growth, and for normal behavior; food, water, air, 
light, minerals or other nutritional or physiological requirements; 
cover or shelter; sites for germination, or seed dispersal; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    Much of what is known about the specific physical and biological 
requirements of Polygonum hickmanii is described in the Background 
section of this final rule. Based on the best available information at 
this time, we believe the long-term probability of the conservation of 
P. hickmanii is dependent upon the protection of existing population 
sites and the maintenance of ecological functions within these sites, 
including connectivity between colonies within close geographic 
proximity to facilitate pollinator activity and seed dispersal 
mechanisms, and the ability to maintain disturbance factors (for 
example, fire disturbance) that contribute to the openness of plant 
cover upon which the species depends. In addition, the small range of 
this species makes it vulnerable to edge effects from adjacent human 
activities, including disturbance from trampling and recreational use, 
the introduction and spread of nonnative species, and the application 
of herbicides, pesticides, and other contaminants (Conservation Biology 
Institute 2000).
    The primary constituent elements of critical habitat for Polygonum 
hickmanii are:
    (1) Thin soils in the Bonnydoon series that have developed over 
outcrops of Santa Cruz mudstone and Purisima sandstone;
    (2) ``Wildflower field'' habitat that has developed on these thin-
soiled sites;
    (3) A grassland plant community that supports the ``wildflower 
field'' habitat and that supports the pollinator activity and seed 
dispersal mechanisms that typically occur within the grassland plant 
community;
    (4) Areas around each colony to allow for recolonization to 
adjacent suitable microhabitat sites;
    (5) Habitat within the subwatersheds upslope to the ridgelines to 
maintain the edaphic and hydrologic conditions and slope stability that 
provide the seasonally wet substrate for growth and reproduction of P. 
hickmanii.

Special Management Considerations or Protections

    Special management considerations or protections may be needed to 
maintain the primary constituent elements for Polygonum hickmanii 
within the units being designated as critical habitat. In some cases, 
protection of existing habitat and current ecologic processes may be 
sufficient to ensure that populations of P. hickmanii 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 P. hickmanii. 
We have outlined below the most likely kinds of special management and 
protection that P. hickmanii may require.
    (1) The soils on which Polygonum hickmanii is found should be 
maintained to optimize conditions for its persistence. Physical 
properties of the soil, such as its chemical composition, surface 
crust, and drainage capabilities, would best be maintained by limiting 
or restricting the use or application of herbicides, fertilizers, or 
other soil amendments.
    (2) Overspray from irrigation or saturation of soils beyond the 
normal rainfall season should also be avoided,

[[Page 16981]]

as this may alter the structure and composition of the grassland 
community or render the native species more vulnerable to pathogens 
found in wetter soil regimes.
    (3) The associated plant communities must be maintained to ensure 
that the habitat needs of pollinators and seed dispersal agents are 
maintained. The use of pesticides should be limited or restricted so 
that healthy populations of pollinators are present to effect 
pollination and, therefore, seed set in Polygonum hickmanii. The 
fragmentation of habitat through construction of roads and certain 
types of fencing should be limited so that dispersal agents may 
disperse seed of P. hickmanii throughout the unit.
    (4) Invasive, nonnative species such as brome grasses and other 
species may need to be actively managed within the grassland community 
to maintain the patches of open habitat that Polygonum hickmanii needs.
    (5) Certain areas where Polygonum hickmanii occurs may need to be 
fenced to protect it from accidental or intentional trampling by humans 
and livestock. While P. hickmanii appears to withstand light to 
moderate disturbance, heavy disturbance may be detrimental to its 
persistence. Seasonal exclusions may work in certain areas to protect 
P. hickmanii during its critical season of growth and reproduction.

Criteria Used To Identify Critical Habitat

    To delineate the critical habitat units, we selected areas that 
provide for the conservation of Polygonum hickmanii at the only two 
sites where it is known to occur, additional suitable habitat, and 
habitat upslope of these areas to the ridgeline of the subwatersheds. 
The current range of the species suggests that part of its former range 
was destroyed by urban development. Additionally, the remaining range 
of the species is highly restricted, with standing plants currently 
growing on less than 0.4 ha (1 ac) of land. We believe it is essential 
to the conservation of the species to preserve all areas that currently 
support native populations of P. hickmanii because the current range of 
the species is so restricted. However, habitat is not restricted solely 
to the area where standing individuals can be observed. Habitat for the 
species must include an area that is large enough to maintain the 
ecological functions upon which the species depends (e.g., the 
hydrologic and edaphic conditions for seed germination and 
establishment, pollinators, and seed dispersers). We believe it is 
important to designate an area of sufficient size to allow landscape 
scale processes to continue that maintain the patches of wildflower 
field habitat and to minimize the alteration of habitat, such as 
invasions of nonnative species and recreation-caused erosion, that 
result from human occupancy and human activities occurring in adjacent 
areas.
    We delineated the critical habitat units by creating data layers in 
a geographic information system (GIS) format of the areas of known 
occurrences of Polygonum hickmanii using information from the 
California Natural Diversity Data Base (CNDDB 2000) and the other 
information sources listed in the Methods section above. These data 
layers were created on a base of USGS 7.5' quadrangle maps obtained 
from the State of California's Stephen P. Teale Data Center. Because 
the areas within proposed critical habitat boundaries were portions of 
the San Augustin Spanish Land Grant, they have not been surveyed 
according to the State Plan Coordinate System. Therefore, instead of 
defining proposed critical habitat boundaries using a grid of township, 
range, and section, we defined the boundaries for the proposed critical 
habitat units using known landmarks and roads.
    During preparation of the final rule, we found several 
discrepancies between the legal description of the boundaries of the 
critical habitat units and the boundaries of the units as depicted in 
the maps accompanying the proposed rule. The discrepancies resulted 
primarily through our use of data layers created at a small scale (for 
example 1:100,000 scale USGS mapping) during preparation of the maps of 
the proposed critical habitat. For the final rule, we corrected the 
mapped boundaries of critical habitat first to be consistent with the 
boundaries as described in the proposed rule. We then modified the 
boundaries of proposed critical habitat using information on the 
location of existing developed areas from recent (April 2000) aerial 
imagery, additional information from botanical experts, and comments on 
the proposed rule. The boundaries of the final critical habitat units 
are defined by Universal Transverse Mercator (UTM).
    In selecting areas of critical habitat, we made an effort to avoid 
developed areas, such as housing developments, which are unlikely to 
contribute to the conservation of Polygonum hickmanii. We attempted to 
map critical habitat for the final rule in sufficient detail to exclude 
developed areas, or other lands unlikely to contain the primary 
constituent elements essential for the conservation of P. hickmanii. 
Some other areas within the boundaries of the mapped units, such as 
roads, parking lots and other paved areas, lawns, and other urban 
landscaped areas, will not contain any of the primary constituent 
elements. Federal actions limited to these areas, therefore would not 
trigger a section 7 consultation under the Act, unless they affect the 
species or primary constituent elements in adjacent critical habitat.

Critical Habitat Designation

    The critical habitat units described below constitute our best 
assessment at this time of the areas essential for the species' 
conservation. Critical habitat for Polygonum hickmanii is being 
designated at the only two sites where it is known to occur. Both units 
are currently occupied with known occurrences of P. hickmanii. These 
areas provide the essential life cycle needs of the species and the 
habitat components essential for the conservation of P. hickmanii. The 
two units are primarily within the city limits of Scotts Valley in 
Santa Cruz County with a small portion within an unincorporated area of 
Santa Cruz County, California, and include the grassland habitat that 
contains the ``wildflower field'' patches on which the species depends. 
Given the threats to the habitat of P. hickmanii discussed above, we 
believe that these areas are likely to require special management 
considerations and protection.
    Because we consider maintaining hydrologic and edaphic conditions 
so important in these grasslands, the critical habitat area extends 
outward to the following limits--(1) Upslope from the occurrences of P. 
hickmanii to include the upper limit of the immediate watershed; (2) 
downslope from the occurrences of P. hickmanii to the point at which 
grassland habitat is replaced by forest habitats (oak forest, redwood 
forest, or mixed conifer-hardwood forest); and (3) to the boundary of 
existing development.
    Including the upper limit of the watershed highlights the 
importance of maintaining stability of the slopes above the habitat of 
the species, because soil disturbing activities in this area could 
result in erosion and deposition of soils on top of wildflower field 
habitat, and could also lead to a change in the flow of surface and 
subsurface water downslope, which could change the amount and timing of 
water availability to the wildflower field habitat. Including habitat 
downslope from the wildflower field habitat likewise highlights the 
importance of maintaining edaphic and hydrologic conditions below the 
wildflower field patches, because soil disturbing activities in this 
area could also result

[[Page 16982]]

in erosion and removal of soils which could cause destabilization of 
slopes where the wildflower field patches are located.

Unit Descriptions

    We are designating the following general areas as critical habitat 
(see legal descriptions for exact critical habitat boundaries).
Unit 1: Glenwood Site
    Unit 1 consists of approximately 87 ha (214 acres) to the west of 
Glenwood Drive and north and northwest of Casa Way, in the city of 
Scotts Valley. This unit includes land owned and managed by the 
Salvation Army and by the Scotts Valley High School District as a 
preserve, but excludes the rest of the High School, and land to the 
east of Glenwood Drive, encompassing the parcel known as the Glenwood 
Development. Most of the land being designated within this unit is 
privately owned, with a small portion (4 ha (9 ac)) owned by a local 
agency (High School District). This unit is essential because it 
supports approximately 25 to 50 percent of the known above-ground 
numbers of individuals of Polygonum hickmanii, as well as other 
suitable patches of wildflower field habitat that could be colonized by 
the species naturally, or used as introduction sites as part of a 
recovery effort. Much of this suitable, but unoccupied habitat, is 
slated to be dedicated as ``open space'' as part of the housing 
development on the Glenwood parcel; therefore, an opportunity may exist 
to pursue such a recovery effort. The unit also supports intervening 
habitat that includes the grassland community that supports the 
pollinators and seed dispersers that are important to the survival and 
conservation of P. hickmanii. Additional habitat that is unsuitable for 
P. hickmanii is also included on the slopes above the wildflower field 
patches; this additional habitat is necessary to maintain the slope 
stability and therefore the hydrologic and soil conditions suitable for 
P. hickmanii and the wildflower field habitat.
Unit 2: Polo Ranch Site
    The Polo Ranch site consists of approximately 30 ha (73 ac) to the 
east of Carbonera Creek on the east side of Highway 17 and north and 
northeast of Navarra Drive, in the city of Scotts Valley, in Santa Cruz 
County, California. All land being designated as critical habitat is 
privately owned. This unit is essential because it supports 
approximately 50 to 75 percent of the known above-ground numbers of 
individuals of Polygonum hickmanii, as well as other suitable patches 
of wildflower field habitat that could be colonized by the species 
naturally, or used as introduction sites as part of a recovery effort. 
The unit also supports intervening habitat that includes the grassland 
community necessary for pollinators and seed dispersers that are 
responsible for maintaining genetic variability within the species. 
Additional habitat that is unsuitable for the growth of P. hickmanii is 
also included on the slopes above the wildflower field patches; this 
additional habitat is necessary to maintain the slope stability and 
therefore the hydrologic and soil conditions suitable for P. hickmanii. 
Much of the unsuitable habitat will be set aside as ``open space'' as 
part of the pending housing development, because these slopes are too 
steep to safely support housing construction.

                    Table 1.--Approximate Critical Habitat Area (ha (ac)) and Land Ownership.
                                                [1 ha = 2.47 ac]
----------------------------------------------------------------------------------------------------------------
               Unit name                     Local  agency               Private                   Total
----------------------------------------------------------------------------------------------------------------
Glenwood Unit.........................  4 ha                     83 ha                    87 ha
                                        (9 ac)                   (205 ac)                 (214 ac)
Polo Ranch Unit.......................  0 ha                     30 ha                    30 ha
                                        (0 ac)                   (73 ac)                  (73 ac)
    Total.............................  4 ha                     113 ha                   117 ha
                                        (9 ac)                   (278 ac)                 (287 ac)
----------------------------------------------------------------------------------------------------------------
Estimates reflect the total area within critical habitat unit boundaries. Approximate hectares have been
  converted to acres.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
public awareness and conservation actions by Federal, State, and local 
and private agencies, groups, and individuals. The Act provides for 
possible land acquisition and cooperation with the States, and requires 
that we develop and implement recovery plans for all listed species 
unless we find that such a plan will not promote the conservation of 
the species. Together with our partners, we would initiate such 
appropriate recovery actions following listing. The protection required 
of Federal agencies and the prohibitions against certain activities 
involving listed plants are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened, and with respect to its critical habitat, if 
any is being designated. Regulations implementing this Interagency 
Cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
species proposed to be listed or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or to destroy or 
adversely modify its critical habitat, if any has been designated. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with us.
    Activities on private lands requiring a permit from a Federal 
agency, such as a permit from the Army Corps of Engineers under section 
404 of the Clean Water Act, would be subject to the section 7 of the 
Act consultation process. Federal actions not affecting the species, as 
well as actions on non-Federal lands that are not federally funded or 
permitted, would not require section 7 consultation.
    Listing of this plant would authorize development of a recovery 
plan. However, in the case of Polygonum

[[Page 16983]]

hickmanii, we included conservation recommendations for this species in 
a multi-species recovery plan we published, which also addressed 
recovery actions for two listed insects and three listed plants 
(including the endangered Chorizanthe robusta var. hartwegii that 
occurs with P. hickmanii) in the Santa Cruz Mountains (Service 1998). 
Since P. hickmanii is being listed with the publication of this final 
rule, we intend that the conservation recommendations included in this 
multi-species recovery plan will, in effect, become the recovery plan 
for this species. This plan identifies both State and Federal efforts 
for conservation of the plant and establishes a framework for agencies 
to coordinate activities and cooperate with each other in conservation 
efforts. The plan sets recovery priorities and describes site-specific 
management actions necessary to achieve conservation and survival of 
the plant. Additionally, pursuant to section 6 of the Act, we would be 
able to grant funds to the State of California for management actions 
promoting the protection and recovery of the species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61 for endangered plants, would apply. These prohibitions, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to import or export, transport in interstate or foreign 
commerce in the course of a commercial activity, or sell or offer for 
sale in interstate or foreign commerce the species, or to remove the 
species from areas under Federal jurisdiction. In addition, for plants 
listed as endangered, the Act prohibits the malicious damage or 
destruction in areas under Federal jurisdiction and the removal, 
cutting, digging up, damaging, or destroying of such endangered plants 
in knowing violation of any State law or regulation or in the course of 
any violation of a State criminal trespass law. Certain exceptions to 
the prohibitions apply to our agents and State conservation agencies.
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plants under certain circumstances. Such permits are 
available for scientific purposes and to enhance the propagation or 
survival of the species. Requests for copies of the regulations 
regarding listed species and inquiries about prohibitions and permits 
may be addressed to the U.S. Fish and Wildlife Service, Ecological 
Services, Permits Branch, 911 N.E. 11th Avenue, Portland, OR 97232-4181 
(telephone 503/231-2063; facsimile 503/231-6243).
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not constitute a violation of section 9 of the Act. The intent 
of this policy is to increase public awareness of the effect of the 
listing on proposed and ongoing activities within a species' range. 
Collection, damage, or destruction of endangered plants on Federal 
lands is prohibited, although in appropriate cases, a Federal 
endangered species permit may be issued to allow for collection. 
However, Polygonum hickmanii is not presently known to occur on Federal 
land. Removal, cutting, digging up, damaging, or destroying endangered 
plants on non-Federal lands also constitutes a violation of section 9 
of the Act if conducted in knowing violation of State law or 
regulations, including State criminal trespass law.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be addressed to the Field Supervisor, 
Ventura Fish and Wildlife Office (see ADDRESSES).

Effects of Critical Habitat Designation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify 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., 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.
    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) requires Federal agencies 
to confer with us on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist the 
agency in eliminating conflicts that may be caused by the proposed 
action. The conservation recommendations in a conference report are 
advisory.
    We may issue a formal conference report if requested by a Federal 
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 were designated. We may adopt the formal conference report as 
the biological opinion when the species is listed or critical habitat 
is designated, if no substantial new information or changes in the 
action alter the content of the opinion (see 50 CFR 402.10 (d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
Federal action agency would ensure that the permitted actions do not 
destroy or adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid destruction or adverse modification of critical 
habitat. Reasonable and prudent alternatives can vary from slight 
project modifications to extensive redesign or relocation of the 
project.

[[Page 16984]]

    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities on Federal lands that may affect Polygonum hickmanii or 
its critical habitat will require consultation under section 7 of the 
Act. Activities on private or State lands requiring a permit from a 
Federal agency, such as a permit from the U.S. Army Corps of Engineers 
(Corps) under section 404 of the Clean Water Act, or any other activity 
requiring Federal action (i.e., funding, authorization) will also 
continue to be subject to the section 7 of the Act consultation 
process. Federal actions not affecting critical habitat, as well as 
actions on non-Federal lands that are not federally funded or 
permitted, will not require section 7 of the Act consultation.
    Both of the units we are designating are considered to be occupied 
by either standing Polygonum hickmanii plants or a seed bank, and 
Federal agencies already consult with us on activities in areas where 
the species may be present to ensure that their actions do not 
jeopardize the continued existence of the species. Therefore, the 
designation of critical habitat is not likely to result in a 
significant regulatory burden above that already in place due to the 
presence of the listed species. Actions on which Federal agencies 
consult with us include, but are not limited to:
    (1) Development on private lands requiring permits from Federal 
agencies, such as section 404 of the Clean Water Act permits from the 
U.S. Army Corps of Engineers;
    (2) Restoration projects sponsored by the Natural Resources 
Conservation Service; and
    (3) Pest control projects undertaken by the Animal and Plant Health 
Inspection Service, permits from Housing and Urban Development, or 
authorization of Federal grants or loans.
    Such activities would be subject to the section 7 of the Act 
consultation process. Where federally listed wildlife species occur on 
private lands proposed for development, any HCPs submitted by the 
applicant to secure an incidental take permit according to section 
10(a)(1)(B) of the Act would be subject to the section 7 of the Act 
consultation process. The Ohlone tiger beetle (Cicindela ohlone), a 
federally endangered species, occurs in close proximity to C. r. var. 
hartwegii within grasslands on the east side of Carbonero Creek on the 
Glenwood Development parcel. We anticipate that an HCP will be 
developed to cover incidental take for the tiger beetle and will 
address conservation measures for C. r. var. hartwegii as well as 
Polygonum hickmanii during development of the management plan for the 
open space portion of the parcel.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat would 
be those that alter the primary constituent elements to the extent that 
the value of critical habitat for the conservation of Polygonum 
hickmanii is appreciably reduced. We note that such activities may also 
jeopardize the continued existence of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly destroy or adversely modify 
critical habitat include, but are not limited to:
    (1) Activities that alter watershed characteristics in ways that 
would appreciably alter or reduce the quality or quantity of surface 
and subsurface flow of water needed to maintain natural grassland 
communities and the wildflower field habitat. Such activities adverse 
to Polygonum hickmanii could include, but are not limited to: 
Vegetation manipulation, such as chaining or harvesting timber in the 
watershed upslope from P. hickmanii; maintaining an unnatural fire 
regime either through fire suppression or prescribed fires that are too 
frequent or poorly-timed; residential and commercial development, 
including road building and golf course installations; agricultural 
activities, including orchardry, viticulture (the cultivation of 
grapes), row crops, and livestock grazing; and
    (2) Activities that appreciably degrade or destroy native grassland 
communities, including, but not limited to, livestock grazing, 
clearing, discing, introducing or encouraging the spread of nonnative 
species, and heavy recreational use.
    If you have questions about whether specific activities may 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES).

Relationship to Habitat Conservation Plans

    Currently, there are no HCPs that include Polygonum hickmanii as a 
covered species. Section 10(a)(1)(B) of the Act authorizes us to issue 
permits for the take of listed species incidental to otherwise lawful 
activities. An incidental take permit application must be supported by 
an HCP that identifies conservation measures that the permittee agrees 
to implement for the species to minimize and mitigate the impacts of 
the permitted incidental take. Although the Act only prohibits take of 
listed wildlife species, listed plant species may also be covered in an 
HCP for wildlife species.
    In the event that future HCPs covering Polygonum hickmanii are 
developed within the boundaries of designated critical habitat, we will 
work with applicants to ensure that the HCPs provide for protection and 
management of habitat areas essential for the conservation of this 
species. This will be accomplished by either directing development and 
habitat modification to nonessential areas, or appropriately modifying 
activities within essential habitat areas so that such activities will 
not destroy or 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 P. hickmanii. The process would also enable us to conduct 
detailed evaluations of the importance of such lands to the long-term 
survival of the species in the context of constructing a biologically 
configured system of interlinked habitat blocks. We will also provide 
technical assistance and work closely with applicants throughout the 
development of any future HCPs to identify appropriate management for 
lands essential for the long-term conservation of P. hickmanii. 
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

[[Page 16985]]

as critical habitat. We may exclude areas from critical habitat upon a 
determination that the benefits of such exclusions outweigh the 
benefits of specifying such areas as critical habitat. We cannot 
exclude such areas from critical habitat when such exclusion will 
result in the extinction of the species.
    Following the publication of the proposed critical habitat 
designation, a draft economic analysis was conducted to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for review on November 21, 2002. We accepted comments on 
the draft analysis until December 6, 2002.
    Our draft economic analysis evaluated the potential future effects 
of Polygonum hickmanii as a threatened species under the Act, as well 
as any potential effect of the critical habitat designation above and 
beyond those regulatory and economic impacts associated with listing. 
To quantify the proportion of total potential economic impacts 
attributable to the critical habitat designation, the analysis 
evaluated a ``without critical habitat'' baseline and compared it to a 
``with critical habitat'' scenario. The ``without critical habitat'' 
baseline represented the current and expected economic activity under 
all modifications prior to the critical habitat designation, including 
protections afforded the species under Federal and State laws. The 
categories of potential costs considered in the analysis included the 
costs associated with: (1) Conducting section 7 consultations 
associated with the listing or with the critical habitat, including 
incremental consultations and technical assistance; (2) modifications 
to projects, activities, or land uses resulting from the section 7 
consultations; (3) uncertainty and public perceptions resulting from 
the designation of critical habitat; and (4) potential offsetting 
beneficial costs associated with critical habitat, including 
educational benefits. The most likely economic effects of critical 
habitat designation are on private landowners carrying out development 
activities funded or authorized by a Federal agency.
    Based on our economic analysis, we concluded that the designation 
of critical habitat would not result in a significant additional 
regulatory burden above and beyond that attributable to the listing of 
Polygonum hickmanii. Our economic analysis does take into account that 
unoccupied habitat is being designated and that there may be some cost 
associated with new section 7 consultations that would not have 
occurred but for critical habitat being designated. Our economic 
analysis also recognizes that there may be economic effects due to the 
reaction of the real estate market to critical habitat designation, as 
real estate values may be temporarily lowered due to perceived increase 
in the regulatory burden. However, we believe these impacts will be 
short-term or minimal in cost.
    In the final economic analysis, we conclude that, over the next 10 
years the total costs to all landowners attributable to the designation 
are expected to be approximately $11,000 to $36,000 annually. However, 
we anticipate the costs will be even less because the costs of 
preparing Environmental Impact Reports for proposed developments, which 
were figured into the estimates, would have already been prepared to 
satisfy California Environmental Quality Act requirements for the lead 
State agency.
    The values presented above may be an overestimate of the potential 
economic effects of the designation because the analysis includes a 
number of assumptions about the likelihood of future section 7 of the 
Act consultations, Environmental Impact Report preparation costs, and 
the costs involved in project modifications. Please see the economic 
analysis and final addendum for more information. Furthermore, the 
final designation has been reduced to encompass 117 ha (287 acres) 
versus the 125 ha (308 ac) proposed as critical habitat, a difference 
of approximately 8 ha (21 ac), that may reduce the economic effects of 
the designation.
    A copy of the final economic analysis with supporting documents are 
included in the supporting record for this rulemaking and may be 
obtained by contacting our Ventura Fish and Wildlife Office (see 
ADDRESSES).

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 Act (SBREFA) of 
1996), whenever an agency is required to publish a notice of rulemaking 
for any proposed or final rule it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA also 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 rule, we are certifying that the critical habitat 
designation for Polygonum hickmanii will not have a significant effect 
on a substantial number of small entities. The following discussion 
explains our rationale.
    Small entities include small organizations, such as independent 
nonprofit organizations, small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.

[[Page 16986]]

    To determine if the rule would affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting, etc.). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. 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, this 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 Electric Co-op Inc. v. F.E.R.C., 773 F.2d 327 (D.C. Cir. 
1985) and American Trucking Associations, Inc. v. U.S. E.P.A., 175 F.3d 
1027, (D.C. Cir. 1999))
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. Residential development on private land 
constitutes the primary activity expected to be impacted by the 
designation of critical habitat for Polygonum hickmanii.
    To be conservative (i.e., more likely overstate impacts than 
understate them), the economic analysis assumed that the two 
potentially affected parties (American Dream/Glenwood and Lennar/
Graystone Homes) that may be engaged in development activities within 
critical habitat are small entities. There are approximately 35 small 
residential development and construction companies in Santa Cruz 
County. At most two formal consultations could arise involving private 
entities. Therefore, the economic analysis assumes that at most two 
separate residential/small business entities may be affected by the 
designation of critical habitat for Polygonum hickmanii over 10 years.
    Under the reasonable assumption that the two consultations would be 
spread out over the 10-year period, less than 1 percent of residential 
development and construction companies may be affected annually, on 
average, by the designation of critical habitat for the Polygonum 
hickmanii. Consequently, the economic analysis concludes that this 
designation will not affect a substantial number of small entities as a 
result of the designation of critical habitat for P. hickmanii.
    In general, two different mechanisms in consultations under section 
7 of the Act could lead to additional regulatory requirements for the 
one small business, on average, that may be required to consult with us 
each year regarding their project's impact on Polygonum hickmanii and 
its habitat. First, if we conclude, in a biological opinion, that a 
proposed action is likely to jeopardize the continued existence of a 
species or destroy or adversely modify its critical habitat, we can 
offer ``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or resulting in destruction or adverse modification of 
critical habitat. A Federal agency and an applicant may elect to 
implement a reasonable and prudent alternative associated with a 
biological opinion that has found jeopardy or destruction or adverse 
modification of critical habitat. An agency or applicant could 
alternatively choose to seek an exemption from the requirements of the 
Act or proceed without implementing the reasonable and prudent 
alternative. However, unless an exemption were obtained, the Federal 
agency or applicant would be at risk of violating section 7(a)(2) of 
the Act if it chose to proceed without implementing the reasonable and 
prudent alternatives. Secondly, if we find that a proposed action is 
not likely to jeopardize the continued existence of a listed animal or 
plant species, we may identify reasonable and prudent measures designed 
to minimize the amount or extent of take and require the Federal agency 
or applicant to implement such measures through nondiscretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. As we have no consultation history 
for Polygonum hickmanii, we can only describe the general kinds of 
actions that may be identified in future reasonable and prudent 
alternatives. These are based on our understanding of the needs of the 
species and the threats it faces, as described in this final listing 
rule and critical habitat designation.
    It is likely that a developer could modify a project to avoid 
removing standing plants. Based on the types of modifications that have 
been implemented in the past for plant species, a developer may take 
such steps as installing fencing to protect existing colonies of 
plants, re-aligning the project to avoid sensitive areas, continuation 
of current grazing practices or establishment of new management 
provisions to ensure containment of nonnative exotic species that 
threaten Polygonum hickmanii, and or restrictions of certain recreation 
uses to avoid disruption of normal propagation of the species. As 
determined in our economic analysis, the cost for implementing these 
modifications for one project may range from $11,000 to $55,000. It 
should be noted that developers likely would already be required to 
undertake such modifications due to regulations in CEQA. These 
modifications are not likely to result in a significant economic impact 
to project proponents.
    In summary, we have considered whether this rule would result in a 
significant economic effect on a substantial number of small entities 
and have determined, for the above reasons, that it will not affect a 
substantial number of small entities. Furthermore, we believe that the 
potential compliance costs for the number of small entities that may be 
affected by this rule will not be significant. Therefore, we are 
certifying that the designation of critical habitat for Polygonum 
hickmanii will not have a significant economic impact on a substantial 
number of small entities. 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

[[Page 16987]]

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 designation.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that they must ensure 
that any programs involving Federal funds, permits, or other authorized 
activities will not adversely affect the critical habitat.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Executive Order 13211

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

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for Polygonum hickmanii in a takings 
implication assessment. The takings implications assessment concludes 
that this final rule does not pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. As discussed above, the designation of critical habitat in 
areas currently occupied by Polygonum hickmanii, as well as unoccupied 
areas, would have little incremental impact on State and local 
governments and their activities. The designations may have some 
benefit to these governments in that the areas essential to the 
conservation of this species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the survival of the 
species are identified. While making this designation and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long 
range planning, rather than waiting for case-by-case section 7 of the 
Act consultation to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have designated critical 
habitat in accordance with the provisions of the Endangered Species 
Act, as amended. The rule uses standard property descriptions and 
identifies the primary constituent elements within the designated areas 
to assist the public in understanding the habitat needs of Polygonum 
hickmanii.

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

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

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

References Cited

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

Author

    The primary author of this final rule and critical habitat 
designation is Constance Rutherford, Ventura Fish and Wildlife Office 
(see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
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]

0
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.


0
2. Amend Sec.  17.12(h), by adding an entry for Polygonum hickmanii in 
alphabetical order under FLOWERING PLANTS to the List of Endangered and 
Threatened Plants:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 16988]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species
------------------------------------------------------   Historic range          Family            Status         When         Critical        Special
         Scientific name              Common name                                                                listed         habitat         rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                                      * * * * * * *
Polygonum hickmanii.............  Scotts Valley        U.S.A. (CA).......  Polygonaceae......  E                      736  17.96(a)                   NA
                                   polygonum.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.96(a) by adding a critical habitat for Family 
Polygonaceae: Polygonum hickmanii (Scotts Valley polygonum) in 
alphabetical order to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) * * *
Family Polygonaceae: Polygonum hickmanii (Scotts Valley polygonum)
    (1) Critical habitat units are depicted for Santa Cruz County, 
California, on the map below.
    (2) The primary constituent elements of critical habitat for 
Polygonum hickmanii are the habitat components that provide:
    (i) Thin soils in the Bonnydoon series that have developed over 
outcrops of Santa Cruz mudstone and Purisima sandstone;
    (ii) ``Wildflower field'' habitat that has developed on these thin-
soiled sites;
    (iii) A grassland plant community that supports the ``wildflower 
field'' habitat and that supports the pollinator activity and seed 
dispersal mechanisms that typically occur within the grassland plant 
community;
    (iv) Areas around each colony to allow for recolonization to 
adjacent suitable microhabitat sites; and
    (v) Habitat within the subwatersheds upslope to the ridgelines to 
maintain the edaphic and hydrologic conditions and slope stability that 
provide the seasonally wet substrate for growth and reproduction of 
Polygonum hickmanii.
    (3) Existing features and structures, such as buildings, roads, 
railroads, airports, other paved areas, lawns, and other urban 
landscaped areas, do not contain one or more of the primary constituent 
elements. Federal actions limited to those areas, therefore, would not 
trigger a consultation under section 7 of the Act unless they may 
affect the species and/or primary constituent elements in adjacent 
critical habitat.
    (4) Unit 1: Santa Cruz County, California. From USGS 7.5' 
quadrangle map Felton, California, Mount Diablo Meridian, California. 
Lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 
587990, 4103190; 587999, 4103220; 588021, 4103230; 588025, 4103250; 
587997, 4103260; 588025, 4103280; 588035, 4103290; 588033, 4103310; 
588025, 4103320; 588012, 4103330; 588014, 4103340; 588005, 4103350; 
587984, 4103360; 587969, 4103370; 587962, 4103380; 587958, 4103390; 
587962, 4103400; 587975, 4103410; 587992, 4103410; 588012, 4103420; 
588029, 4103400; 588046, 4103410; 588058, 4103420; 588064, 4103430; 
588072, 4103450; 588082, 4103480; 588088, 4103500; 588091, 4103530; 
588091, 4103560; 588099, 4103570; 588115, 4103590; 588146, 4103580; 
588169, 4103610; 588201, 4103630; 588272, 4103700; 588411, 4104050; 
588571, 4103930; 588584, 4103940; 588589, 4103960; 588590, 4103980; 
588583, 4104010; 588574, 4104030; 588559, 4104050; 588549, 4104070; 
588568, 4104110; 588833, 4104150; 588827, 4104020; 588883, 4104030; 
588891, 4103950; 588906, 4103920; 588931, 4103890; 588979, 4103870; 
589049, 4103870; 589069, 4103680; 589061, 4103450; 589124, 4103440; 
589173, 4103400; 589117, 4103050; 589062, 4103060; 589019, 4102960; 
589099, 4102940; 589096, 4102920; 588612, 4103020; 588570, 4102880; 
588485, 4102900; 588474, 4102960; 588452, 4102960; 588452, 4103090; 
588473, 4103160; 588502, 4103270; 588504, 4103330; 588505, 4103420; 
588402, 4103470; 588360, 4103480; 588292, 4103480; 588267, 4103440; 
588121, 4103320; 588033, 4103080; 588352, 4103020; 588337, 4102930; 
588000, 4102990; 587981, 4102940; 587900, 4102940; 587900, 4102960; 
587905, 4102980; 587919, 4102970; 587931, 4102970; 587932, 4102990; 
587924, 4103010; 587916, 4103040; 587915, 4103060; 587893, 4103070; 
587887, 4103090; 587883, 4103100; 587885, 4103100; 587891, 4103110; 
587911, 4103100; 587939, 4103130; 587942, 4103150; 587951, 4103160; 
587963, 4103150; 587977, 4103160; 587990, 4103190.
    (5) Unit 2: Santa Cruz County, California. From USGS 7.5' 
quadrangle map Laurel, California, Mount Diablo Meridian, California. 
Lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 
589297, 4102370; 589213, 4102420; 589164, 4102430; 589168, 4102460; 
589174, 4102500; 589181, 4102550; 589189, 4102570; 589210, 4102600; 
589243, 4102620; 589261, 4102630; 589274, 4102640; 589271, 4102660; 
589270, 4102680; 589270, 4102690; 589289, 4102710; 589327, 4102740; 
589361, 4102770; 589402, 4102790; 589435, 4102800; 589472, 4102800; 
589571, 4102790; 589657, 4102780; 589762, 4102770; 589845, 4102750; 
589889, 4102730; 589917, 4102690; 589932, 4102660; 589932, 4102620; 
589930, 4102530; 589865, 4102440; 589732, 4102250; 589681, 4102260; 
589669, 4102290; 589661, 4102300; 589642, 4102310; 589623, 4102310; 
589590, 4102310; 589531, 4102320; 589297, 4102370.
    (6) Map for Units 1 and 2 follows:
BILLING CODE 4310-55-P

[[Page 16989]]

[GRAPHIC] [TIFF OMITTED] TR08AP03.023


[[Page 16990]]


* * * * *

    Dated: March 27, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-8181 Filed 4-7-03; 8:45 am]
BILLING CODE 4310-55-C