[Federal Register Volume 69, Number 52 (Wednesday, March 17, 2004)]
[Rules and Regulations]
[Pages 12553-12569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5925]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG88


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat for Cirsium loncholepis (La Graciosa thistle)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for Cirsium loncholepis (La Graciosa thistle). 
Approximately 41,089 acres (ac) (16,628 hectares (ha)) are within the 
boundaries of the critical habitat designation. The designated critical 
habitat is in San Luis Obispo and Santa Barbara Counties, California.
    Critical habitat identifies specific areas, both occupied and 
unoccupied, that are essential to the conservation of a listed species 
and that may require special management considerations or protection. 
Section 7(a)(2) of the Act requires that each Federal agency, in 
consultation with and with the assistance of the Service, ensure that 
any action authorized, funded, or carried out by such agency is not 
likely to jeopardize the continued existence of an endangered or 
threatened species or result in the destruction or adverse modification 
of critical habitat. Section 4 of the Act requires us to consider 
economic and other relevant impacts of designating any particular area 
as critical habitat. We solicited data and comments from the public on 
all aspects of this designation, including data on economic and other 
impacts of the designation.

DATES: This rule is effective April 16, 2004.

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

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Ventura Fish and 
Wildlife Office (see ADDRESSES section) (telephone 805/644-1766; 
facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that

[[Page 12554]]

additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 25 percent (306 species) 
of the 1,211 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,211 listed species through conservation mechanisms such as 
listing, section 7 consultations, the section 4 recovery planning 
process, the section 9 protective prohibitions of unauthorized take, 
section 6 funding to the States, and the section 10 incidental take 
permit process. The Service believes it is these measures that may make 
the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA), all are part of the cost of 
critical habitat designation. None of these costs result in any benefit 
to the species that is not already afforded by the protections of the 
Act enumerated earlier, and they directly reduce the funds available 
for direct and tangible conservation actions.

Background

    We proposed to designate critical habitat for Cirsium loncholepis 
(La Graciosa thistle) on November 15, 2001 (66 FR 57559), along with 
Eriodictyon capitatum (Lompoc yerba santa) and Deinandra increscens 
ssp. villosa (Gaviota tarplant). We designated final critical habitat 
for Eriodictyon capitatum and Deinandra increscens ssp. villosa on 
November 7, 2002 (67 FR 67968), but did not designate C. loncholepis 
due to ongoing analysis of its taxonomic status.
    Dr. David Keil is currently studying the taxonomic relationship 
between Cirsium scariosum (elk thistle) and C. loncholepis (David Keil, 
California Polytechnic State University, San Luis Obispo (CPSU), pers. 
comm. 2002). A highly variable species complex, C. scariosum occurs in 
montane wetlands throughout California including the Klamath Ranges, 
the Cascade Ranges, the Sierra Nevada, the Transverse Ranges, the South 
Coast Range, and the Peninsular Ranges (Keil and Turner 1993). A small 
number of C. scariosum populations occur at one of the headwaters of 
the Santa Maria River in the Mount Pinos region, less than 95 miles 
(mi) (153 kilometers (km)) inland of the C. loncholepis populations. 
Recent research suggests that the populations of C. scariosum in the 
Mount Pinos region and the Peninsular Ranges are related to C. 
loncholepis and may collectively represent a single taxon (David Keil, 
CPSU, in litt. 2003). Based on this analysis, Dr. Keil may propose a 
new taxon, C. scariosum var. citrinum; the new taxon would not 
supersede the current nomenclature until it is peer reviewed and 
published. Dr. Keil intends to publish his new treatment of the genus 
Cirsium in The Flora of North America (FNA). Publication of the FNA 
volume containing the genus Cirsium will likely occur between 2005 and 
2006 (Dieter Wilken, Santa Barbara Botanical Garden, in litt. 2003). 
Because of delays in finalization of this taxonomic research, we 
determined to proceed with the designation of critical habitat for C. 
loncholepis based on its current taxonomic status. When the proposed 
taxonomic changes are published, we will as necessary re-evaluate, 
within the constraints of available funding, the critical habitat 
designation and the listing of C. loncholepis.
    Please refer to the proposed critical designation (66 FR 57559) for 
an overview of Cirsium loncholepis biology, historic range, land 
ownership and management, and a list of the on-going threats to the 
species. Since the publication of the proposed critical habitat, 
subsequent research on C. loncholepis has added to our understanding of 
the species. For example, demographic studies found that the survival 
and rapid growth of seedlings to a large vegetative (non-flowering) 
state and large flowering individuals were the main demographic 
influences driving population growth rate in the populations studied 
(Lea 2002; Teed 2003). An investigation of seedling ecology found that 
seedlings tolerate saturated soils better than larger, more mature 
individuals, and higher seedling mortality occurs if soils dry out 
quickly (Huber 2003). This study also found that mice forage on 
seedlings and contribute to seedling mortality. Field observations 
suggest that C. vulgare (bull thistle), an invasive non-native species, 
may also threaten local populations of C. loncholepis due to 
competition (Tina Teed, CPSU, pers. comm. 2002). The population 
reported for Monterey County was erroneously identified as C. 
loncholepis and is not being considered a component of this new taxon 
(D. Keil, pers. comm., 2002).
    Changes in land managers and the status of conservation easements 
within the proposed critical habitat units have occurred since 
publication of the

[[Page 12555]]

proposed rule. The Coastal Conservancy now holds a conservation 
easement for the western portion of the private parcel owned by the 
Unocal Corporation. The Center for Natural Land Management manages the 
parcel owned by the County of Santa Barbara (Rancho Guadalupe Dunes 
County Park) that was formerly managed by the Trust for Public Lands. 
This County of Santa Barbara parcel is south of the Unocal parcel and 
supports suitable habitat though no plants have been documented from 
that location. The Guadalupe-Nipomo Dunes National Wildlife Refuge is 
currently negotiating the development of a conservation easement on the 
entire Unocal parcel. The dune area and shoreline of the Santa Maria 
River mouth would then be managed as part of the refuge. Long-term 
management plans for C. loncholepis have not yet been developed for any 
of these areas.

Previous Federal Action

    A proposed rule to list Cirsium loncholepis and three other 
species, as endangered was published in the Federal Register on March 
30, 1998 (63 FR 15164). Please refer to the proposed rule listing the 
species for information on previous Federal actions prior to March 30, 
1998 and to the proposed designation of critical habitat (66 FR 57559, 
57564) for information on previous Federal actions prior to November 
15, 2001. The proposed critical habitat rule also contains information 
regarding the litigation history related to the listing and designation 
of critical habitat for this species (Southwest Center for Biological 
Diversity and California Native Plant Society v. U.S. Fish and Wildlife 
Service et al. (Case No. C99-2992 (N.D.Ca.)).
    The proposed rule to designate critical habitat for Cirsium 
loncholepis and two other species was signed on November 2, 2001, and 
published in the Federal Register on November 15, 2001 (66 FR 57559). 
In the proposal, we determined it was prudent to designate 
approximately 66,830 ac (27,046 ha) of land in Santa Barbara and San 
Luis Obispo Counties as critical habitat for C. loncholepis, 
Eriodictyon capitatum, and Deinandra increscens ssp. villosa. 
Publication of the proposed rule opened a 60-day public comment period, 
which closed on January 14, 2002.
    On May 7, 2002, we published a notice announcing the reopening of 
the comment period on the proposal to designate critical habitat for 
Cirsium loncholepis, Eriodictyon capitatum, and Deinandra increscens 
ssp. villosa, and a notice of availability of the draft economic 
analysis on the proposed determination (67 FR 30641). This second 
public comment period closed on June 6, 2002.
    In August 2002, we agreed through a joint stipulation with the 
plaintiffs (Southwest Center for Biological Diversity and California 
Native Plant Society) to a 1-year extension on the publication date of 
a final rule for Cirsium loncholepis critical habitat to October 25, 
2003. A delay in publication was proposed by the plaintiffs because of 
the uncertainty in the taxonomic status of C. loncholepis. (Please 
refer to the Background section of this rule for more information 
regarding C. loncholepis taxonomic issues.) A final rule designating 
critical habitat for the other two species was issued October 25, 2002 
(67 FR 67968, November 7, 2002).
    On September 12, 2003 we filed with the court a motion to modify 
its Stipulated Order Regarding Critical Habitat Designation, seeking 
additional time due to the continued uncertainty regarding the 
taxonomic status of Cirsium loncholepis and because appropriations 
provided by Congress in fiscal year 2003 were insufficient to cover 
this action. On November 6, 2003, the judge denied our motion for 
further extension. The Service is issuing this designation in 
compliance with the court's order.

Summary of Comments and Recommendations

    We contacted appropriate Federal, State, and local agencies, 
scientific organizations, and other interested parties and invited them 
to comment on the proposed critical habitat for the three species. In 
addition, we invited public comment through the publication of a notice 
in the San Luis Obispo Tribune on November 18, 2001, and the Santa 
Barbara News-Press on November 27, 2001.
    We received individually written letters from 11 parties, which 
included 4 designated peer reviewers, 1 Federal agency, and 1 State 
agency. Of the 11 parties responding individually, 6 supported the 
proposed designation, 3 were neutral, and 2 were opposed. Of the 
responding parties, five commented specifically on Eriodictyon 
capitatum and Deinandra increscens ssp. villosa, while three made 
general comments for all three taxa, and three commented specifically 
on Cirsium loncholepis.
    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from four 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the species occurs, and/or familiarity with the 
principles of conservation biology. All four of the peer reviewers 
supported the proposal and provided us with comments, which are 
included in the summary below and incorporated into the final rule.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat and Cirsium loncholepis, Eriodictyon capitatum, and Deinandra 
increscens ssp. villosa. We previously addressed comments regarding 
critical habitat for E. capitatum and D. increscens ssp. villosa in a 
separate rule that did not include C. loncholepis (67 FR 67968). A peer 
review comment relating to the uncertainty in the taxonomic status of 
C. loncholepis prompted the separation of C. loncholepis from the final 
critical habitat designation for the other two species.
    The comments were grouped according to peer review or public 
comments. Two general issues arose in the public comments that related 
specifically to the proposed critical habitat determination. These 
comments are addressed in the summary below. We did not receive any 
comments on the draft economic analysis of the proposed determination. 
However, we did receive one comment on economic issues during the first 
comment period on the proposed designation.

Peer Review Comments

    (1) Comment: A peer reviewer suggested that we delay publication of 
a final rule for Cirsium loncholepis pending the determination of its 
taxonomic status. Recent research on C. loncholepis raises significant 
questions regarding the taxonomy of the species.
    Our Response: We acknowledge the uncertainty in the taxonomy of 
Cirsium loncholepis. In 2002, we discussed with the plaintiffs, the 
Center for Biological Diversity and California Native Plant Society, 
appropriate action on the critical habitat designation given the 
questions raised by recent review of Cirsium loncholepis taxonomy 
(Please refer to the Background section of this rule for information 
regarding the study of the taxonomic relationship of C. loncholepis and 
C. scariosum.). We agreed, through a joint stipulation with the 
plaintiffs, to a 1-year extension until October 25, 2003 for completion 
of the final critical habitat determination for C. loncholepis. 
However, resolution of the taxonomic status of C. loncholepis did not 
occur during the 1-year extension. Given the continuing uncertainty 
regarding resolution of the taxonomic issue, the Service determined to 
proceed with the final determination.

[[Page 12556]]

    (2) Comment: One peer reviewer recommended that we include all 
apparently suitable unoccupied habitats within the range of the species 
in our critical habitat designation. The reviewer stated that it is 
unclear from the proposed rule how many unoccupied areas or unsurveyed 
areas within the historical range of these taxa have been excluded from 
the proposed rule. Including these areas would improve the chances for 
recovery by increasing the habitat that would be protected and thus 
available for colonization.
    Our Response: We acknowledge that all areas within the historical 
range of Cirsium loncholepis have not been surveyed. It is possible 
that suitable habitat for the taxon exists but remains unidentified. 
While additional surveys would help in further defining the 
distribution of C. loncholepis, we are required to designate as 
critical habitat those areas we know to be essential to the 
conservation of the species, using the best information available to 
us. We included in our critical habitat designation areas with the soil 
types and vegetation communities necessary to support C. loncholepis 
that are contiguous with the known locations of the taxon and are 
essential to the conservation of the species.
    Within the geographic area occupied by Cirsium loncholepis, we 
designate only areas currently known to be essential to the 
conservation of the species. Essential areas already have the features 
and habitat characteristics that are necessary to sustain the species. 
We do not speculate about what areas might be found to be essential if 
better information became available, or what areas may become essential 
over time. If the information available at the time of designation does 
not show that an area provides essential life cycle needs of the 
species, then the area is not included in the critical habitat 
designation. Within the geographic area occupied by the species, we do 
not designate areas that do not now have the primary constituent 
elements, as defined at 50 CFR 424.12(b), which provide essential life 
cycle needs of the species.
    We agree that future conservation and recovery of the species 
depends not only on the areas it currently occupies, but also on 
providing the opportunity for it to shift in distribution over time, 
and to expand its current distribution. We have addressed this by 
designating as critical habitat the areas that surround existing 
populations and contain the primary constituent elements and are, 
therefore, essential to the conservation of Cirsium loncholepis. The 
number and location of standing plants (i.e., above-ground expression) 
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 seedbank.
    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. Critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or not 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 section 7(a)(2) jeopardy 
standard and the applicable prohibitions of section 9 of the Act, as 
determined on the basis of the best available information at the time 
of the action.
    (3) Comment: A peer reviewer commented that the Ca[ntilde]ada de 
las Flores unit of Cirsium loncholepis critical habitat appears to be 
marginal in its contribution to the conservation and recovery of the 
species. Much of the area has been converted from grazing, which is 
generally compatible with the thistle, to intensive agriculture in the 
form of vineyards. The thistle may not be able to survive and recover 
under this change in land use.
    Our Response: No vineyards currently occur within the Ca[ntilde]ada 
de las Flores Unit. Much of the area surrounding the Ca[ntilde]ada de 
las Flores unit, specifically within and south of Los Alamos Valley, 
has undergone recent land use changes in the form of vineyard 
development. However, the majority of the property within the 
Ca[ntilde]ada de las Flores unit remains under a grazing regime with a 
small amount of agricultural row crops. The majority of the property in 
this unit is owned by Chevron, which is in the process of closing, 
excavating, and capping old well sites on the South Los Flores Ranch. A 
vineyard developer has approached the Service and Santa Barbara County 
about vineyard development on property within the southern portion of 
the Unit; less than 10 percent of the unit is proposed for vineyard 
conversion in the current plans (Bridget Fahey, Service biologist, 
pers. comm. 2002). Vineyard development on the property would likely 
occur in upland areas, away from marsh and wetland habitat that support 
Cirsium loncholepis and the federally endangered Santa Barbara Distinct 
Population Segment (DPS) of the California tiger salamander (Ambystoma 
californiense). Measures developed to protect wetland habitat on the 
property should be beneficial for C. loncholepis as well as the 
California tiger salamander. We included the Ca[ntilde]ada de las 
Flores unit in our critical habitat designation because it contains the 
primary constituent elements and characteristics that make it essential 
for the conservation of C. loncholepis.

Public Comments

Issue 1: Site-Specific Areas and Other Comments

    (4) Comment: A commenter requested that the Oceano Dunes State 
Vehicular Recreation Area be excluded from the Pismo-Orcutt unit of 
Cirsium loncholepis critical habitat. Designating critical habitat in 
this area would diminish, if not completely eliminate, opportunities 
for public use of the dunes for recreational activities. The Oceano 
Dunes State Vehicular Recreation Area is not necessary for the survival 
and recovery of the species when considering the large area 
(approximately 44,000 ac) that would be protected as critical habitat.
    Our Response: We are sensitive to the concerns of individuals 
regarding the effects of critical habitat designation on private land 
or public lands under State or local jurisdiction. We agree that 
critical habitat should include only areas essential to the 
conservation of Cirsium loncholepis. Upon review of the area 
encompassed by the Oceano Dunes State Vehicular Recreation Area 
(ODSVA), we have removed from the final designation the heavily used 
off-highway vehicle (OHV) riding area within the ODSVA because the area 
is not essential for the conservation of Cirsium loncholepis (see 
Summary of Changes from the Proposed Rule section). However, we have 
retained the remaining portion of the ODSVA in our final designation 
because these areas are not disturbed and contain habitat essential for 
C. loncholepis. Unless a Federal nexus (e.g., Federal funding, Federal 
permit, or other Federal actions) exists, the critical habitat 
designation poses no regulatory burden and should not affect activities 
at the Oceano Dunes State Vehicular Recreation Area. If a Federal nexus 
is found to exist, we will work with the State (or other non-Federal 
entity) and appropriate Federal agency to attempt to develop a project 
that can be completed without jeopardizing the continued existence of 
the C. loncholepis or adversely modifying its critical habitat.
    We have analyzed the potential takings implications of designating 
critical habitat for Cirsium loncholepis. This final rule will not take 
private,

[[Page 12557]]

State, or other non-Federal property. Owners and users of non-Federal 
recreational areas that are included in the designated critical habitat 
will continue to have an opportunity to utilize private and public 
property in ways consistent with the conservation of C. loncholepis. 
Activities that do not have a Federal nexus are not restricted by the 
designation of critical habitat.
    (5) Comment: California Department of Transportation (DOT) 
requested an exclusion of areas within the DOT operating Right of Way 
(ROW) in several, unspecified units of critical habitat for Cirsium 
loncholepis, where they overlap with the transportation system of 
California. The DOT requested an exclusion to reduce the need for 
habitat effects determinations for the taxa where routine disturbance 
occurs as a result of regular maintenance and operational improvements.
    Our Response: In the region covered by this critical habitat 
designation, State and Federal roads appear to be within the Pismo-
Orcutt unit. To clarify, we are not including roads that border the 
critical habitat units in our designation. The areas adjacent to the 
State roads that extend within the Pismo-Orcutt unit contain habitat 
essential to the conservation of Cirsium loncholepis as defined by the 
primary constituent elements. Therefore, we cannot justify excluding 
these particular areas from the critical habitat unit.
    Due to mapping and time constraints, we did not map critical 
habitat in sufficient detail to exclude all road surfaces, although 
these would not contain the primary constituent elements essential for 
the conservation of this taxon. Therefore, we do not view road surfaces 
within the units as critical habitat for Cirsium loncholepis. Federal 
activities limited to roads and other paved or graveled areas would not 
trigger a section 7 consultation unless they affect the species or one 
or more of the primary constituent elements in adjacent critical 
habitat.
    Designation of critical habitat in areas occupied by Cirsium 
loncholepis is not likely to result in a regulatory burden 
substantially above that already in place due to the presence of the 
listed species. To streamline the regulatory process, the DOT may 
request section 7 consultation at a programmatic level for ongoing 
activities that would result in adverse effects to the taxon or its 
critical habitat.

Issue 2: Economic Issues

    (6) Comment: We received one comment recommending we use the 
contingent valuation method (CVM) to determine the hypothetical non-use 
values for Cirsium loncholepis and the other two species for which 
critical habitat was concurrently proposed.
    Our Response: Some economists recognize that in addition to a ``use 
value'' that society places on natural resources these goods may also 
exhibit a ``non-use value'' by society. For example, while many people 
may elect to visit a public park and ``use'' it for a variety of 
recreational purposes, the presence of this park may provide a variety 
of benefits to additional members of society even though their 
enjoyment may not be directly observable. Certain individuals may also 
derive benefits from the park because of the protection it offers to 
certain natural resources including a diverse ecosystem that harbors 
endangered and threatened species. While these members of society may 
value the park merely for its existence, their behavior is not directly 
observable and thus economists have developed certain tools, including 
CVM, for measuring these values.
    CVM is an approach used by economists to directly elicit non-use 
values from individuals through the use of carefully designed survey 
instruments. A CVM study will provide respondents with a framework 
wherein they are asked to value the resource given the parameters of 
the framework. For CVM to work properly, and provide meaningful 
information on non-use values, considerable resources must be expended 
to adequately design and administer this tool. We have not employed CVM 
studies to capture the non-use values certain individuals may place on 
critical habitat designation.
    In conducting our analyses for the La Graciosa thistle, we reviewed 
economic literature to determine whether or not there are any existing 
studies that can provide information that would allow us to better 
describe and accurately quantify such benefits associated with the 
survival and recovery of the La Graciosa thistle and its habitat. 
However, even when such studies are identified, they usually do not 
allow for the separation of the benefits of listing (including the 
Act's take provisions) from the benefits of critical habitat 
designation.
    While we are often unable to quantify benefits that may be 
associated with the designation, our analyses do discuss potential 
benefits in a qualitative manner. This discussion is not intended to 
provide a complete analysis of the benefits that could result from 
section 7 of the Act in general or critical habitat designation in 
particular. In short, we believe that we are currently best able to 
express the benefits of critical habitat designation in biological 
terms that can be weighed against the expected cost impacts of the 
rulemaking.

Summary of Changes From the Proposed Rule

    In preparation for development of our final designation of critical 
habitat for Cirsium loncholepis, we reviewed comments received on the 
proposed designation of critical habitat. In addition to minor 
clarifications and incorporation of additional information on the 
species' biology and taxonomy, we made four changes to our proposed 
designation, as follows:
    (1) We modified two of the three primary constituent elements from 
the proposed designation by including additional habitats, excluding 
two plant communities, and refining the plant species associated with 
Cirsium loncholepis habitats. We did not include seeps in our proposed 
list of C. loncholepis habitats for primary constituent element one. 
Because hillside seeps provide habitat for the species in the 
Ca[ntilde]ada de las Flores critical habitat unit, we have added seeps 
to the list of habitats. Intermittent streams also provide habitat for 
the species, specifically where sub-surface water is close to the 
surface or exposed along such drainages. For this reason, we have also 
included intermittent streams. In primary constituent element two of 
the proposed designation, we included coastal dune and coastal scrub as 
being essential plant communities. However, coastal dune and coastal 
scrub plant communities do not provide the moist soils considered 
necessary for habitats occupied by C. loncholepis, and therefore we 
have removed these communities from the final list. Coastal dune 
ecosystems contain lakes and other wetlands suitable for C. 
loncholepis, and these wetland habitats are not dominated by plant 
species associated with coastal dune and coastal scrub plant 
communities. In primary constituent element two, we kept the plant 
species typically associated with wetland habitats and removed plants 
that are not obligate wetland species including Toxicodendron 
diversilobum (poison oak), Distichlis spicata (salt grass), and 
Baccharis pilularis (coyote brush).
    (2) We modified the boundaries of the proposed units to be 
consistent with other recent critical habitat designations. The 
boundaries are now defined by points that lie on a 100-meter-by-100-
meter grid in the Universal Transverse Mercator (UTM) coordinate 
system.
    (3) When making adjustments to the Pismo-Orcutt unit, we made 
slight modifications to exclude developed

[[Page 12558]]

areas that were missed during assessment of the 2000 aerial photos. 
Developed areas are generally not considered essential habitats for 
Cirsium loncholepis because of the lack of primary constituent elements 
in these areas.
    (4) We excluded the heavily used off-highway vehicle (OHV) riding 
area, which is a portion of the Oceano Dunes State Vehicular Recreation 
Area, because the area is not essential for the conservation of Cirsium 
loncholepis. OHV disturbance in the riding area has inhibited the 
development of a natural dune structure that includes the formation of 
wetlands which could support C. loncholepis. The riding area consists 
mostly of shifting, open sand that is unsuitable habitat for C. 
loncholepis. A small number of remnant wetland habitats exist in the 
riding area that might support the species, but these are fenced off 
from OHV disturbance and too few to be essential to the conservation of 
the species. The highly disturbed riding area that we are excluding is 
only a small part of the much larger Guadalupe Dune complex. The 
majority of the known extant populations of C. loncholepis are 
restricted to undisturbed wetlands of the Guadalupe Dune complex and 
the Santa Maria River mouth, and we have therefore retained the vast 
majority of the dune complex and a large part of the river in the 
Pismo-Orcutt unit.
    As a result of using the 100-meter-by-100-meter grid method for 
defining the boundaries and the removal of developed areas missed in 
the original proposed delineation, the Pismo-Orcutt unit decreased in 
size by 1,468 ac (595 ha) and the Ca[ntilde]ada de las Flores unit 
decreased in size by only 137 ac (56 ha). With the removal of the OHV 
riding area, the Pismo-Orcutt unit decreased in size by an additional 
1,621 ac (656 ha).

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) which may require special management considerations or 
protection; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    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 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 
are essential to the conservation of the species. 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.''
    To be included in a critical habitat designation, the Service must 
also find that habitat may require special management considerations or 
protections. As discussed in more detail below, with respect to the 
individual units, the Service finds that the two units designated as 
critical habitat for the C. loncholepis may require special management 
considerations or protections due to threats to the species and/or its 
habitat. Such special management considerations or protections may 
include management of off-highway vehicle activity, irrigation 
practices, groundwater pumping, invasive, non-native species, and 
grazing, as well as protecting the composition of native plant and 
animal communities within critical habitat units. Section 4(b)(2) of 
the Act requires that we take into consideration the economic impact, 
and any other relevant impact, including impacts to National security, 
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 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 species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined 
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 
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 section 7(a)(2) jeopardy 
standard and the applicable prohibitions of section 9 of the Act, as 
determined on the basis of the best available information at the time 
of the action. Federally funded or assisted projects affecting listed 
species outside their designated critical habitat areas may thus 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

[[Page 12559]]

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 information available to determine 
areas that contain the physical and biological features that are 
essential for the conservation of Cirsium loncholepis. This included 
information from the California Natural Diversity Data Base (CNDDB 
2001), soil survey maps (U.S. Soil Conservation Service 1972), digital 
versions of the U.S. Geological Survey 7.5' quadrangles, aerial 
photography, recent biological surveys and reports, additional 
information provided by interested parties, and discussions with 
representatives of California Department of Fish and Game (CDFG), the 
Santa Barbara County Planning Department, and other botanical experts. 
We also conducted site visits at several locations managed by local, 
State, or Federal agencies, including Guadalupe-Nipomo Dunes National 
Wildlife Refuge, Oceano Dunes State Vehicle Recreation Area, and Pismo 
Dunes State Preserve. We also visited the portion of Guadalupe Dunes 
owned by the Unocal Corporation.
    We delineated the proposed critical habitat units for Cirsium 
loncholepis by creating data layers in a geographic information system 
(GIS) format of the areas of known occurrences of the taxon using the 
information sources described above and aerial photography available 
through TerraServer (http://terraserver.homeadvisor.msn.com). Where 
possible, we defined the boundaries of proposed critical habitat to 
conform to roads, known landmarks, and topographic features. To create 
the legal descriptions of the boundaries, we used the UTM coordinates 
that defined the proposed boundary.
    For the final rule we made several modifications to the boundaries 
of proposed critical habitat. We overlaid the boundaries of proposed 
critical habitat on aerial imagery from April 2000 (AirPhoto USA), and 
an effort was made to exclude developed areas. We excluded from 
critical habitat the off-highway vehicle (OHV) riding area in the 
Oceano Dunes State Vehicular Recreation Area (Recreation Area). We used 
GIS data from Thomas Reid & Associates, a consultant of the Recreation 
Area, who approximated the perimeter of the OHV riding area. With the 
exception of the boundary excluding the OHV riding area just described, 
the boundaries were modified to conform to a UTM coordinate system grid 
with a cell size of 100-meters by 100-meters. To accomplish this 
modification, the points defining the boundaries of proposed critical 
habitat were moved to an adjacent point lying on the UTM grid of 100-
meter cells. Defining critical habitat boundaries to be coincident with 
points on a UTM grid is consistent with current practice and is 
intended to simplify interpretation of the coordinates while 
diminishing the number of coordinates necessary to define a boundary. 
We did not conform the boundary along OHV riding area to the UTM grid 
of 100-meter cells because the resulting boundary would greatly deviate 
from the boundary marked for visitors to the Recreation Area; we 
believe that a boundary coincident with the OHV riding area is easily 
understood by Recreation Area visitors and simplifies administration 
for State Parks.

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 breeding, reproduction, or rearing of 
offspring; 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.
    All areas designated as critical habitat for Cirsium loncholepis 
are within the species' historic range and contain one or more of the 
physical or biological features (primary constituent elements) 
identified as essential for the conservation of each species. Much of 
what is known about the specific physical and biological requirements 
of C. loncholepis is described in the Proposed Designation of Critical 
Habitat for C. loncholepis.
    The designated critical habitat is designed to provide sufficient 
habitat to maintain self-sustaining populations of Cirsium loncholepis 
throughout the species' range, and provide those habitat components 
essential for the conservation of the species. Habitat components that 
are essential for C. loncholepis are found in wetland communities where 
physical processes, including the pattern of prevailing coastal winds, 
support natural dune dynamics in coastal areas, or occasional 
floodplain depositional events in inland areas.
    Based on our knowledge to date, the primary constituent elements of 
critical habitat for Cirsium loncholepis consist of:
    (1) Moist, sandy soils associated with dune swales, margins of dune 
lakes and marshes, seeps, intermittent streams, and river margins from 
the Guadalupe Dune complex along the coast and inland to Ca[ntilde]ada 
de las Flores;
    (2) Plant communities that support associated wetland species, 
including: Juncus spp. (rush), Scirpus spp. (tule), and Salix spp. 
(willow); and
    (3) Hydrologic processes, particularly the maintenance of a stable 
groundwater table supporting the soil moisture regime that appears to 
be favored by Cirsium loncholepis.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protections. The Pismo-Orcutt unit may 
require special management considerations or protections due to the 
threats to the species and its habitat posed by erosion or compaction 
of soils that could threaten wetlands, coastal dunes and swales; 
changes in surface or subsurface flows upon which C. loncholepis 
depends that may reduce or remove the essential hydrological regime 
that supports the species; invasions of non-native plants that may take 
over habitat for the species; habitat fragmentation that detrimentally 
affects plant-pollinator interactions, leading to a decline in species 
reproduction and increasing susceptibility to non-native plant 
invasion; and excessive grazing that can lead to changes in essential 
habitat conditions (e.g., increases in soil temperature resulting in 
loss of moisture, decreases in plant cover, and increases in non-native 
species). Currently, grazing, agriculture conversion, agricultural 
practices, competition from non-native plant species, off-road vehicle 
traffic, and oil and gas decommissioning activities are ongoing in the 
Pismo-Orcutt unit. The Canada de las Flores unit may require special 
management considerations or protections due to the threats to the 
species and its habitat posed by erosion or compaction of soils that 
could threaten wetlands, coastal dunes and swales; changes in surface 
or subsurface flows upon which C. loncholepis

[[Page 12560]]

depends that may reduce or remove the essential hydrological regime 
that supports the species; invasions of non-native plants that may take 
over habitat for the species; habitat fragmentation that detrimentally 
affects plant-pollinator interactions, leading to a decline in species 
reproduction and increasing susceptibility to non-native plant 
invasion; and excessive grazing that can lead to changes in essential 
habitat conditions (e.g., increases in soil temperature resulting in 
loss of moisture, decreases in plant cover, and increases in non-native 
species). Currently, grazing, agriculture conversion, competition from 
non-native plant species, and oil and gas decommissioning are ongoing 
in the Canada de las Flores Unit.

Criteria Used To Identify Critical Habitat

    Throughout this designation, when selecting areas of critical 
habitat we made an effort to avoid developed areas, such as housing 
developments, that are unlikely to contribute to the conservation of 
Cirsium loncholepis. However, we did not map critical habitat in 
sufficient detail to exclude all developed areas, or other lands 
unlikely to contain the primary constituent elements essential for the 
conservation of C. loncholepis. Areas within the boundaries of the 
mapped units, such as buildings, roads, parking lots, railroads, 
airport runways and other paved areas, lawns, and other urban 
landscaped areas will not contain any of the primary constituent 
elements and thus do not constitute critical habitat for the species. 
Therefore, Federal actions limited to these areas would not trigger a 
section 7 consultation unless it is determined that such actions may 
affect the species and/or adjacent designated critical habitat.
    During development of this rule, we considered the role of 
unoccupied habitat in the conservation of Cirsium loncholepis. Due to 
the historic loss of the habitats that supported the taxon, we believe 
that conservation and recovery of this species depends not only on 
protecting it in the limited areas that it currently occupies, but also 
on providing the opportunity to increase its distribution by protecting 
currently unoccupied habitat within its historic range.
    We consider both units designated as critical habitat for Cirsium 
loncholepis to be occupied by the species. Determining the specific 
areas that this taxon occupies is difficult for several reasons: (1) 
The methods for mapping the current distributions of C. loncholepis can 
be variable, depending on the scale at which groups of individuals are 
recorded (e.g., many small groups versus one large group); and (2) 
depending on the climate and other annual variations in habitat 
conditions, the extent of the above-ground distributions may either 
shrink and temporarily disappear, or, as a residual soil seedbank is 
expressed, enlarge and cover a more extensive area. Therefore, the 
inclusion of currently unoccupied habitat interspersed with patches of 
occupied habitat in the critical habitat units reflects the dynamic 
nature of the habitat and the life history characteristics of the 
taxon. We have also included a larger area of currently unoccupied 
habitat in the Pismo-Orcutt unit, extending from the known coastal 
locations of the species inland to Orcutt. This habitat is essential to 
the conservation of the species because (1) it provides connectivity 
between the known locations on the coast and those habitats containing 
the primary constituent elements for C. loncholepis in the more 
interior portions of the unit including the type locality for the 
species (The type locality is the geographic location where the primary 
type was collected. The type specimen (also known as holotype) is the 
original specimen from which a description of a new species is made.), 
(2) it contains the primary constituent elements for the species and 
(3) it provides potentially suitable habitat for introductions needed 
for recovery of the species.
    We considered the status of habitat conservation planning (HCP) 
efforts during the development of this rule. We may exclude HCPs from 
critical habitat designation if the benefits of excluding them would 
outweigh the benefits of including them. Currently, no HCPs include 
Cirsium loncholepis as a covered species.

Critical Habitat Designation

    The critical habitat areas described below include one or more of 
the primary constituent elements described above and constitute our 
best assessment at this time of the areas needed for the conservation 
of Cirsium loncholepis. Critical habitat includes habitat throughout 
the species' current range in the United States (Santa Barbara and San 
Luis Obispo Counties, California). Lands designated as critical habitat 
are under Federal, State, local, and private ownership. Federal lands 
include areas owned and managed by the Service. State lands include 
areas owned and managed by the California Department of Parks and 
Recreation and the California Department of Fish and Game (CDFG). Local 
lands include parks owned by the County of Santa Barbara. Private lands 
include areas that are being managed for conservation by private 
landowners, as well as those that are being managed for agriculture, 
ranchlands, or oil field decommissioning. Each of the critical habitat 
units is considered to be occupied by either seeds as part of the 
seedbank or standing plants, and to contain habitat that include the 
specific soils, hydrology, or plant communities that are essential for 
this taxon.
    Critical habitat designated for Cirsium loncholepis includes two 
units, both of which currently sustain the species. Protection of both 
units is essential for the conservation of the species because the 
geographic range that C. loncholepis occupies has been reduced to so 
few sites that the species is in danger of extinction. Both units 
contain habitat components that are essential for the conservation of 
C. loncholepis. The areas being designated as critical habitat contain 
the appropriate marsh, dune wetland, and riparian habitat that support 
C. loncholepis, including the sandy soils, the associated plant 
communities, and a groundwater table that maintains wet soil 
conditions. We are designating approximately 41,089 ac (16,628 ha) of 
land as critical habitat for C. loncholepis. Approximately 5 percent of 
this area consists of Federal lands, approximately 5 percent are State 
lands, less than 1 percent are county lands, and approximately 89 
percent are private lands (Table 1). Both units maintain the ecological 
processes that support the habitats containing the primary constituent 
elements. Within the units, these habitats allow expansion of the 
existing populations by maintaining connectivity through pollinators 
and wind dispersal.
    A brief description of both critical habitat units is given below:

Pismo-Orcutt Unit

    The Pismo-Orcutt Unit consists of coastal dunes, swales, and 
wetlands extending from Grover City south to Mussel Point, just north 
of Point Sal, and then extending inland across the Santa Maria Valley 
to the area of Orcutt. This unit includes a portion of the Pismo Dunes 
State Preserve, non-OHV riding areas of Oceano Dunes State Vehicular 
Recreation Area, the Guadalupe-Nipomo Dunes National Wildlife Refuge, 
Rancho Guadalupe Dunes County Park, and privately owned lands. In the 
vicinity of Orcutt, some of the private lands included in this unit 
have been designated as open space by Santa Barbara County (1998). The 
coastal portion of this unit contains almost all of the known 
populations of

[[Page 12561]]

Cirsium loncholepis, including the largest population known to exist 
anywhere on privately owned lands, the Unocal parcel near the mouth of 
the Santa Maria River, as well as numerous smaller populations that are 
scattered along the coast north to Grover City. Maintaining all of 
these populations is essential for this species to survive through a 
variety of natural and human-induced environmental changes as well as 
stochastic events (e.g., floods). The more interior portions of this 
unit are primarily within the lower portion of the Santa Maria River 
Valley (below 80 ft (24 m) in elevation) and have been placed in 
agricultural production. However, fragments of numerous small marshes, 
wetlands, and drainages can still be found interspersed with 
agricultural fields. The prevailing winds from the stretch of coast 
between Pismo Beach and the mouth of the Santa Maria River blow 
southeast across the lower Santa Maria River Valley in the direction of 
Orcutt and beyond to Ca[ntilde]ada de las Flores. The prevailing winds 
cause seed dispersal, which explains the elongated pattern in 
distribution of individual plants within known coastal populations. 
Wind dispersal is important for the maintenance and expansion of 
existing populations of this species. Intervening habitat between the 
coastal populations and the more interior portions of the Pismo-Orcutt 
unit is therefore important to maintain connectivity through pollinator 
activity and seed dispersal mechanisms, and to provide suitable habitat 
for introduction efforts needed for recovery of the species.

Ca[ntilde]ada de Las Flores Unit

    The Ca[ntilde]ada de Las Flores Unit consists of wetland habitat, 
in particular seeps, at the head of Ca[ntilde]ada de las Flores 
watershed, northwest of the town of Los Alamos. All of the lands in 
this unit are privately owned. The two known populations of Cirsium 
loncholepis in this unit encompass the easternmost distribution of the 
species; consequently they occur under slightly different environmental 
conditions, specifically at a higher elevation (200 ft (61 m) elev.) 
and warmer climate than the coastal populations. These are the only 
known populations that represent the more interior distribution of the 
species. Preserving plants surviving in these slightly different 
environmental conditions (e.g., seasonal temperatures, type of wetland 
habitat, adjacent plant communities) may be important for the long-term 
survival and conservation of the species because they may contain 
genetic features different than those in other parts of the range.

        Table 1.--Approximate Designated Critical Habitat Unit Areas for Cirsium loncholepis in Acres (ac) (Hectares (ha)) by Land Ownership \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        County and other
             Unit name                        State                  Private          local jurisdictions          Federal                 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pismo-Orcutt.......................  1,946 ac..............  33,954 ac.............  29 ac................  2,333 ac.............  38,262 ac
                                     (787 ha)..............  (13,741 ha)...........  (12 ha)..............  (944 ha).............  (15,484 ha)
Ca[ntilde]ada de las Flores........  0 ac..................  2,827 ac..............  0 ac.................  0 ac.................  2,827 ac
                                     (0 ha)................  (1,144 ha)............  (0 ha)...............  (0 ha)...............  (1,144 ha)
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Approximate hectares have been converted from acres (1 ha = 2.47 ac).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to jeopardize the continued existence of any threatened or 
endangered species or result in the destruction or adverse modification 
of critical habitat designated for such a species. Destruction or 
adverse modification of critical habitat occurs when a Federal action 
directly or indirectly alters critical habitat to the extent it 
appreciably diminishes the value of critical habitat for the 
conservation of the species. Individuals, organizations, States, local 
governments, and other non-Federal entities are affected by the 
designation of critical habitat only if their actions occur on Federal 
lands; require a Federal permit, license, or other authorization; or 
involve Federal funding.
    In our regulations at 50 CFR 402.02, we define destruction or 
adverse modification as ``a direct or indirect alteration that 
appreciably diminishes the value of critical habitat for both the 
survival and recovery of a listed species. Such alterations include, 
but are not limited to, alterations adversely modifying any of those 
physical or biological features that were the basis for determining the 
habitat to be critical.'' However, in a March 15, 2001, decision of the 
United States Court of Appeals for the Fifth Circuit (Sierra Club v. 
U.S. Fish and Wildlife Service, et al., 245 F3d 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 to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with us on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. Conference reports 
provide conservation recommendations to assist the action agency in 
eliminating conflicts that may be caused by the proposed action. The 
conservation recommendations in a conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry

[[Page 12562]]

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 the likelihood of jeopardizing the continued 
existence of the listed species or resulting in the destruction or 
adverse modification of critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions 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 previously 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 Cirsium loncholepis or 
its critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers (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 consultation process. Federal actions not affecting C. 
loncholepis or its critical habitat, as well as actions on non-Federal 
lands that are not federally funded or permitted, will not require 
section 7 consultations with respect to this taxon.
    Both of the units we are designating are occupied by either above-
ground plants or a seedbank of the taxon, 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. Each unit also contains some areas that are considered 
unoccupied. However, we believe, and the economic analysis discussed 
below illustrates, that the designation of critical habitat is not 
likely to result in a significant regulatory burden above that already 
in place due to the presence of the listed species. Few additional 
consultations are likely to be conducted due to the designation of 
critical habitat. 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 404 permits from the U.S. Army Corps of Engineers or 
permits from other Federal agencies such as Housing and Urban 
Development;
    (2) Activities of the U.S. Fish and Wildlife Service on its Refuge 
lands;
    (3) Watershed management activities sponsored by the Natural 
Resources Conservation Service;
    (4) Activities of the Federal Aviation Authority on their lands or 
lands under their jurisdiction;
    (5) The release or authorization of release of biological control 
agents by the U.S. Department of Agriculture;
    (6) Regulation of activities affecting point source pollution 
discharges into waters of the United States by the Environmental 
Protection Agency under section 402 of the Clean Water Act; and
    (7) Construction of communication sites licensed by the Federal 
Communications Commission, and authorization of Federal grants or 
loans.
    Where federally listed wildlife species occur on private lands 
proposed for development and a habitat conservation plan (HCP) is 
submitted by an applicant to secure a permit to take according to 
section 10(a)(1)(B) of the Act, our issuance of such a permit would be 
subject to the section 7 consultation process. In those situations 
where Cirsium loncholepis may occur or its critical habitat is present 
within the area covered by an HCP that covers a wildlife species, the 
consultation process would include consideration of the potential 
effects on all listed species, including plants, of granting the permit 
authorizing take of threatened or endangered wildlife species addressed 
by the HCP.
    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 Cirsium 
loncholepis 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 for Cirsium loncholepis include, but are not limited 
to:
    (1) Activities that alter habitat hydrological regimes in ways that 
would appreciably alter or reduce the quality or quantity of surface 
and subsurface water needed to maintain the coastal dune swale, seep, 
marsh, and riparian habitat within the range of Cirsium loncholepis. 
Such activities adverse to C. loncholepis could include, but are not 
limited to, water drawdown or water diversions that lower the water 
table, agricultural activities that would affect the quality of water 
through contamination, off-highway vehicle activity that alters 
vegetation cover and topography, road building and maintenance or 
modification that alters runoff patterns, oilfield development, oil 
contamination remediation activities, construction of pipelines and 
utility corridors, golf course and residential development and certain 
recreational activities; and
    (2) Activities that destroy the attendant native vegetation and 
make Cirsium loncholepis habitats more susceptible to invasion by non-
native plant species including, but not limited to activities such as 
livestock grazing, grading, construction and maintenance of pipeline 
and utility corridors, off-road vehicle traffic, and other recreational 
activities.
    Several other wildlife species that are listed under the Act occur 
in the same general areas as Cirsium loncholepis. Western snowy plovers 
(Charadrius alexandrinus nivosus), tidewater gobies (Eucyclogobius 
newberryi), California least terns (Sterna antillarum browni), 
California red-legged frogs (Rana aurora draytonii), marsh sandwort 
(Arenaria paludicola), Gambel's watercress (Rorippa gambelii), and 
Nipomo lupine (Lupinus nipomensis) occur within the coastal portions of 
the Pismo-Orcutt unit designated as critical habitat for C. 
loncholepis; in addition, critical habitat for Western snowy plover 
overlaps with that designated for C. loncholepis.

[[Page 12563]]

California tiger salamanders (Ambystoma californiense) (Santa Barbara 
DPS) occur on the more inland portion of the Pismo-Orcutt unit in the 
vicinity of Orcutt, as well as in the vicinity of the Ca[ntilde]ada de 
las Flores unit.
    If you have questions regarding whether specific activities will 
likely constitute adverse modification of critical habitat, contact the 
Field Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES 
section). Requests for copies of the regulations on listed wildlife and 
inquiries about prohibitions and permits may be addressed to the U.S. 
Fish and Wildlife Service, Portland Regional Office, 911 NE 11th 
Avenue, Portland, OR 97232-4181 (503/231-6131, Fax 503/231-6243).

Relationship to Habitat Conservation Plans

    Currently, no Habitat Conservation Plans include Cirsium 
loncholepis as a covered species.

Economic Analysis

    Section 4(b)(2)of the Act requires us to designate critical habitat 
on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on May 7, 2002 (67 FR 30641). We 
accepted comments on the draft analysis until June 6, 2002.
    Our proposed critical habitat rule included three species, Cirsium 
loncholepis, Eriodictyon capitatum, and Deinandra increscens ssp. 
villosa. Therefore, our economic analysis evaluated the potential 
future effects associated with the listing of all three of those 
species as endangered 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. In addition, we analyzed 
costs incurred through consultations and modifications of activities on 
lands under the Federal jurisdiction of Vandenberg Air Force Base 
(VAFB), and the following discussion of potential economic effects and 
the values presented below assumes the inclusion of these lands in the 
critical habitat designation. However, through section 4(b)(2), in our 
final critical habitat rule, we excluded lands owned by VAFB from the 
areas designated as critical habitat for Eriodictyon capitatum, and 
Deinandra increscens ssp. villosa. In that rule, we determined that the 
benefits of excluding lands owned by VAFB outweighed the benefits of 
inclusion, which finding resulted in the entire removal of three units 
and modification of two units (67 FR 67968). Therefore, because our 
economic analysis was based on an analysis of effects from listing and 
designating critical habitat for three species, not just C. 
loncholepis, and included impacts of areas that were subsequently 
excluded from the final critical habitat rules, the values presented 
below and in the economic analysis are likely overestimates of the 
potential economic effects resulting from this critical habitat rule 
for C. loncholepis.
    The categories of potential costs considered in the analysis 
included the costs associated with: (1) Conducting section 7 
consultations due to the listing or the critical habitat, including 
reinitiated consultations and technical assistance; (2) modifications 
to projects, activities, or land uses resulting from the section 7 
consultations; and (3) potential offsetting beneficial costs connected 
to critical habitat including educational benefits.
    Our economic analysis recognizes that there may be costs from 
delays associated with reinitiating completed consultations after the 
critical habitat designation is made final. There may also be economic 
effects due to the reaction of the real estate market to critical 
habitat designation, as real estate values may be lowered due to a 
perceived increase in the regulatory burden.
    Based on our analysis, we concluded that the designation of 
critical habitat would not result in a significant economic impact, and 
estimated the potential economic effects over a 10-year period would 
range from $3.1 to $3.65 million for all three species. The total 
estimated costs associated with Cirsium loncholepis alone over a 10-
year period is estimated to range between $641,000 and $802,300, or 
$64,100 and $80,200 annually. The total consultation costs for C. 
loncholepis attributable exclusively to the critical habitat provision 
of section 7 may range from $17,200 to $43,600 over 10 years. These 
costs are small when considered in the context of the economic activity 
of the region. Given the total value of $1.09 billion in income (over 
10 years) from farming, agricultural services, construction, and oil 
and gas extraction activities in Santa Barbara County alone, the 
annualized total cost of section 7 implementation represents about 0.07 
percent of the total value of affected economic activities, as 
estimated in the economic analysis. Although we do not find the 
economic costs to be significant, they were considered in balancing the 
benefits of including and excluding areas from critical habitat.
    We did not receive any comments on the draft economic analysis of 
the proposed designation. Following the close of the comment period, 
the economic analysis was finalized. We made no revisions or additions 
to the draft economic analysis.
    A copy of the final economic analysis and a description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting our Ventura 
Fish and Wildlife Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 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 formally reviewed this final critical habitat designation.

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government

[[Page 12564]]

jurisdictions). However, no regulatory flexibility analysis is required 
if the head of an agency certifies the rule will not have a significant 
economic impact on a substantial number of small entities. The SBREFA 
amended the RFA to require Federal agencies to provide a certification 
statement. In this rule, we are certifying that the critical habitat 
designation for Cirsium loncholepis will not have a significant effect 
on a substantial number of small entities. The following discussion 
explains the factual basis for this certification.
    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. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly 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). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``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 an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect Cirsium loncholepis. Federal agencies also must consult with us 
if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities. Since C. loncholepis was 
listed in March 2000, there have only been two formal consultations 
involving the species. Both consultations were conducted with the Army 
Corps of Engineers on restoration activities being undertaken by one 
entity, Unocal, to clean up and restore beach habitat contaminated by 
oil production activities. In these consultations, restoration of C. 
loncholepis habitat was proposed as part of the project because Unocal 
was under court order to remediate contamination by the Environmental 
Protection Agency. Since there have been only two consultations and 
both involved the same agency and entity, the requirement to reinitiate 
consultations for ongoing projects will not affect a substantial number 
of small entities.
    Our economic analysis found that private development, oil and gas 
production (oil and gas decommissioning in the Cirsium loncholepis 
units), and agriculture (particularly, vineyard conversion) are the 
primary activities anticipated to take place within the area designated 
as critical habitat for Cirsium loncholepis, Eriodictyon capitatum, and 
Deinandra increscens ssp. villosa. There are approximately 114 
development and real estate, 73 oil and gas, and 93 agriculture small 
companies within the area designated as critical habitat for the three 
species. Because this final rule does not include the critical habitat 
designation for the Eriodictyon capitatum and Deinandra increscens ssp. 
villosa and also differs from the proposed rule upon which the economic 
analysis was based through the exclusion of proposed units for those 
species located on Vandenberg Air Force Base, the impacts of this rule 
on small businesses and total economic costs are likely to be lower 
than were reflected in the economic analysis. To be conservative (i.e., 
more likely to overstate impacts than understate them), we assumed in 
our economic analysis that a unique business entity would undertake 
each of the projected consultations in a given year. Therefore, the 
number of businesses affected annually is equal to the total annual 
number of consultations (both formal and informal).
    Based on the economic analysis which looked at the critical habitat 
for three species, we estimated that in each year there could be 
between one and two consultations for private development projects. 
Assuming each consultation involves a different business, approximately 
less than 1 percent of the total number of small private development 
companies could be affected annually by the designation of critical 
habitat for these three species.
    Similarly again in analyzing critical habitat for the three 
species, we estimated that in each year there could be approximately 
three consultations for oil and gas production activities. Assuming 
each consultation involves a different business, approximately 3 to 4 
percent of the total number of small gas and oil companies could be 
affected annually by the designation of critical habitat for these 
three species.
    We also estimated that in each year there could be approximately 
less than one consultation for agriculture (vineyard) activities. 
Assuming each consultation involves a different business, approximately 
less than 1 percent of the total number of small agriculture companies 
could be affected annually by the designation of critical habitat for 
Cirsium loncholepis. Therefore, the economic analysis concluded that 
the designation of critical habitat for C. loncholepis will not result 
in a significant economic impact on a substantial number of small 
entities. This conclusion is supported by the low number of 
consultations on C. loncholepis that have occurred since it was listed.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the approximately 
four small businesses, on average, that may be required to consult with 
us each year regarding their project's impact on Cirsium loncholepis 
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

[[Page 12565]]

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 
adversely modifying critical habitat. A Federal agency and an applicant 
may elect to implement a reasonable and prudent alternative associated 
with a biological opinion that has found jeopardy or adverse 
modification of critical habitat. An agency or applicant could 
alternatively choose to seek an exemption from the requirements of the 
Act or proceed without implementing the reasonable and prudent 
alternative. However, unless an exemption were obtained, the Federal 
agency or applicant would be at risk of violating section 7(a)(2) of 
the Act if it chose to proceed without implementing the reasonable and 
prudent alternatives. Second, pursuant to section 7(b)(4), if we find 
that a proposed action adversely affects the species but is not likely 
to jeopardize the continued existence of a listed animal or plant 
species or adversely modify its critical habitat, we may identify 
reasonable and prudent measures designed to minimize the amount or 
extent of take and require the Federal agency or applicant to implement 
such measures through non-discretionary terms and conditions. We may 
also identify discretionary conservation recommendations designed to 
minimize or avoid the adverse effects of a proposed action on listed 
species or critical habitat, help implement recovery plans, or to 
develop information that could contribute to the recovery of the 
species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. As we have a very limited 
consultation history for Cirsium loncholepis with no consultations that 
resulted in a jeopardy determination and so no identified reasonable 
and prudent alternatives, we can only describe the general kinds of 
actions that may be identified in future reasonable and prudent 
alternatives. These are based on our understanding of the needs of the 
species and the threats it faces, as described in the final listing 
rule and this critical habitat designation.
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect Cirsium loncholepis. Based 
on the types of modifications and measures that have been implemented 
in the past for plant species, a project proponent may take such steps 
as installing fencing or re-aligning the project to avoid sensitive 
areas. It should be noted that a developer likely would already be 
required to undertake such measures due to regulations in the 
California Environmental Quality Act. These measures 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. 
We 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 Cirsium 
loncholepis 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))

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an effect on the 
economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. City and 
county governments would only be affected by this designation if their 
actions were being funded, permitted, or carried out by a federal 
agency. In that circumstance, the federal agency would need to assure 
the action it was funding, permitting, or carrying out would not 
adversely modify critical habitat. For all actions without federal 
involvement, this designation would not have any affect on such 
actions.
    (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. This rule is not 
expected to significantly affect energy supplies, distribution, or use. 
In our economic analysis, we did not identify energy production or 
distribution as being affected by this designation, and we received no 
comments indicating that the proposed designation could significantly 
affect energy supplies, distribution, or use. Oil and gas facilities in 
the designated units of this final rule are decommissioned or in the 
process of decommissioning. 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 Cirsium loncholepis in a takings 
implication assessment. The takings implications assessment concludes 
that this final rule does not pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. As discussed above, the designation of critical habitat in 
areas currently occupied by Cirsium loncholepis 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

[[Page 12566]]

essential to the conservation of these species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are identified. While making this 
definition and identification does not alter where and what Federally 
sponsored activities may occur, it may assist these local governments 
in long range planning, rather than waiting for case-by-case section 7 
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 Cirsium 
loncholepis.

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

    This rule does not contain any information collection requirements 
for which OMB 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 Cirsium loncholepis does not contain any Tribal lands or 
lands that we have identified as impacting Tribal trust resources.

References Cited

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

Author

    The authors of this final rule are Diane Gunderson, Mary Root, and 
Connie Rutherford, Ventura Fish and Wildlife Office (See ADDRESSES 
section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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. In Sec.  17.12(h) revise the entry for Cirsium loncholepis under 
``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species
----------------------------------------------------   Historic range         Family          Status       When listed    Critical  habitat    Special
        Scientific name              Common name                                                                                                rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                                      * * * * * * *
Cirsium loncholepis............  La Graciosa         U.S.A. (CA)......  Asteraceae-        E                        691  17.96(a)..........           NA
                                  thistle.                               sunflower.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.96, amend paragraph (a) by adding an entry for Cirsium 
loncholepis under Family Asteraceae to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) * * *
Family--Asteraceae: Cirsium loncholepis (La Graciosa thistle)
    (1) Critical habitat units are depicted for San Luis Obispo and 
Santa Barbara Counties, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Cirsium loncholepis are those habitat components that provide:
    (i) Moist sandy soils associated with dune swales, margins of dune 
lakes and marshes, seeps, intermittent streams, and river margins from 
the Guadalupe Dune complex along the coast and inland to Ca[ntilde]ada 
de las Flores;
    (ii) Plant communities that support associated wetland species, 
including: Juncus spp. (rush), Scirpus spp. (tule), and Salix spp. 
(willow); and
    (iii) Hydrologic processes, particularly the maintenance of a 
stable groundwater table supporting the soil moisture regime that 
appears to be favored by Cirsium loncholepis.
    (3) Critical habitat does not include existing features and 
structures, such as buildings, hard-packed roads (e.g., asphalt, 
pavement), aqueducts, railroads, airport runways and buildings, other 
paved areas, lawns, and other urban landscaped areas not containing all 
of the primary constituent elements.
    (4) Critical Habitat Map Units. Data layers defining map units were 
mapped using Universal Transverse Mercator (UTM) coordinates.
    (5) Cirsium loncholepis. Pismo-Orcutt Unit; San Luis Obispo and 
Santa Barbara Counties, California.
    (i) From USGS 1:24,000 scale quadrangle maps Pismo Beach and 
Oceano. Land bounded by the following

[[Page 12567]]

UTM 10 NAD 1927 coordinates (E, N): 715600, 3889000; 716100, 3889000; 
716100, 3888800; 716200, 3888500; 716600, 3887600; 716500, 3887600; 
716600, 3887300; 716400, 3887300; 716400, 3887400; 716300, 3887400; 
716300, 3887300; thence southwest to Oceano Dunes State Vehicular 
Recreation Area ``Street Legal'' riding area boundary at y-coordinate 
3887230; thence north along the ``Street Legal'' riding area boundary 
to y-coordinate 3888735; thence northwest, returning to 715600, 
3889000.
    (ii) From USGS 1:24,000 scale quadrangle maps Pismo Beach, Oceano, 
Point Sal, Guadalupe, Santa Maria, and Orcutt. Lands bounded by 
following UTM Zone 10, NAD 1927 coordinates (E, N): 716700, 3886500; 
717100, 3886400; 717300, 3886300; 717600, 3886100; 718100, 3886000; 
719100, 3885200; 719400, 3884900; 719600, 3884600; 719600, 3884000; 
719300, 3883700; 719200, 3883200; 719100, 3883000; 719200, 3882300; 
719400, 3881300; 719700, 3880800; 719800, 3880700; 720300, 3880700; 
720300, 3880200; 719600, 3880400; 719500, 3880300; 719600, 3879500; 
719700, 3879100; 720300, 3878900; 720400, 3879000; 720400, 3879300; 
720000, 3879500; 720400, 3879700; 720600, 3880000; 720700, 3880000; 
721300, 3879500; 721500, 3880000; 721900, 3880000; 722500, 3879400; 
722500, 3878300; 722300, 3877600; 722000, 3876600; 721800, 3876000; 
721800, 3875700; 721500, 3875800; 721600, 3875500; 721800, 3875100; 
721800, 3873200; 722200, 3873300; 722300, 3873300; 722900, 3873100; 
723200, 3873300; 724100, 3873500; 725800, 3873900; 727000, 3874200; 
727600, 3870900; 731700, 3870600; 731700, 3869000; 731400, 3869000; 
731400, 3868000; 731600, 3868000; 731700, 3867400; 731200, 3867300; 
730500, 3867000; 730000, 3867000; 729900, 3866700; 730600, 3866700; 
731200, 3867000; 731600, 3867000; 731700, 3864600; 731200, 3863900; 
731400, 3863500; 731800, 3863500; 731800, 3861500; 732300, 3861100; 
732500, 3861000; 732800, 3861000; 733000, 3860800; 733200, 3860800; 
733200, 3860600; 733500, 3860400; 733600, 3860300; 734100, 3860300; 
734200, 3860200; 733900, 3860100; 733600, 3860100; 733600, 3859900; 
733400, 3859800; 733300, 3859700; 733200, 3859500; 733200, 3859200; 
733000, 3859200; 733000, 3859600; 732800, 3860400; 732600, 3860700; 
731500, 3861500; 730700, 3861800; 729800, 3862100; 728800, 3862500; 
728300, 3862900; 726900, 3864000; 726400, 3864300; 726100, 3864600; 
725100, 3865000; 723900, 3866000; 722700, 3867000; 722800, 3867300; 
722700, 3867600; 722600, 3867800; 722400, 3867900; 722300, 3868300; 
722100, 3868300; 722000, 3868200; 721400, 3868400; 721000, 3868400; 
720300, 3868700; 719700, 3868800; 719500, 3868900; 719400, 3869100; 
719200, 3869300; 718600, 3869600; 717900, 3869700; 717700, 3869800; 
717500, 3869800; 717100, 3869700; 716600, 3869600; 716600, 3870000; 
716500, 3870300; 716400, 3870500; 716200, 3870700; 715900, 3870800; 
715400, 3870900; 715100, 3870900; 715000, 3871100; 715200, 3872300; 
715000, 3872600; 715500, 3875200; 716000, 3878600; thence north to the 
boundary ``Open Riding Area'' in Oceano Dunes State Vehicular 
Recreation Area at y-coordinate 3878700; thence north along the ``Open 
Riding Area'' boundary to y-coordinate 3886500; thence east, returning 
to 716700, 3886500.
    (iii) Excluding land bounded by: 727800, 3868100; 727600, 3868100; 
727300, 3868000; 727300, 3867800; 727500, 3867600; 727700, 3867600; 
727700, 3867800; 727800, 3867800; 727800, 3868100.
    (iv) Excluding land bounded by: 729800, 3864700; 729400, 3864700; 
729400, 3864000; 730200, 3864000; 730400, 3864100; 730400, 3864500; 
729800, 3864700.
    (v) Excluding land bounded by: 726400, 3867300; 726200, 3867000; 
726200, 3866900; 726900, 3866400; 727300, 3866100; 727600, 3866300; 
727600, 3866500; 727200, 3866600; 727300, 3867100; 727100, 3867200; 
727000, 3866900; 726400, 3867300.
    (vi) Excluding land bounded by: 728400, 3870600; 728400, 3870200; 
727700, 3870200; 727500, 3869700; 729200, 3869700; 729200, 3869500; 
729400, 3869500; 729400, 3870300; 728900, 3870300; 728500, 3870600; 
728400, 3870600.
    (vii) Excluding land bounded by: 722100, 3872900; 721800, 3872900; 
721600, 3872700; 721400, 3872200; 721300, 3871700; 721100, 3871600; 
721000, 3871400; 720800, 3871300; 720600, 3871400; 720200, 3871400; 
720000, 3871300; 720000, 3870800; 721100, 3870800; 721100, 3870700; 
721400, 3870700; 721400, 3870800; 722200, 3870800; 722200, 3871900; 
723000, 3871900; 723000, 3872000; 722300, 3872300; 722300, 3872600; 
722100, 3872900.
    (6) Cirsium loncholepis. Ca[ntilde]ada de Las Flores Unit; San Luis 
Obispo and Santa Barbara Counties, California.
    (i) From USGS 1:24,000 scale quadrangle map Sisquoc. Lands bounded 
by UTM Zone 10, NAD 1927 coordinates (E, N): 741100, 3853100; 741300, 
3853400; 741300, 3853500; 741100, 3853700; 741200, 3854000; 741300, 
3854500; 741300, 3854700; 741200, 3854900; 741300, 3855100; 741300, 
3855600; 741400, 3855900; 741600, 3856200; 741800, 3856300; 741900, 
3856300; 742700, 3855500; 743200, 3854000; 743300, 3853800; 743600, 
3853400; 743700, 3853300; 744000, 3853000; 744200, 3852900; 745000, 
3852400; 745200, 3852300; 745600, 3851900; 745200, 3851400; 744600, 
3851700; 744500, 3851700; 744200, 3851400; 743700, 3851400; 743400, 
3851200; 743300, 3851000; 743200, 3851000; 743200, 3850800; 742500, 
3850800; 742100, 3850900; 742300, 3851800; 742400, 3852000; 742200, 
3852100; 741600, 3852300; 741200, 3852400; 741100, 3852500; 741100, 
3852700; 741000, 3852800; 741000, 3853000; 741100, 3853100.
    (ii) Note: Map follows:
BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TR17MR04.000



[[Page 12569]]


    Dated: March 10, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-5925 Filed 3-16-04; 8:45 am]
BILLING CODE 4310-55-C