[Federal Register Volume 70, Number 200 (Tuesday, October 18, 2005)]
[Rules and Regulations]
[Pages 60658-60694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20147]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Navarretia Fossalis (Spreading Navarretia); Final Rule

  Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / 
Rules and Regulations  

[[Page 60658]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT86


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Navarretia Fossalis (Spreading Navarretia)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for Navarretia fossalis (spreading navarretia) 
pursuant to the Endangered Species Act of 1973, as amended (Act). In 
total, approximately 652 acres (ac) (264 hectares (ha)) fall within the 
boundary of the critical habitat designation. The designated critical 
habitat is within San Diego and Los Angeles Counties, California. We 
have exempted or excluded approximately 18,747 ac (7,586 ha) of habitat 
with essential features in Riverside and San Diego Counties from this 
designation of critical habitat.

DATES: This rule becomes effective on November 17, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 6010 Hidden Valley Road, Carlsbad, CA 92011 (telephone: 760/
431-9440). The final rule, economic analysis (EA), and map are also 
available via the Internet at http://carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and 
Wildlife Office (telephone (760) 431-9440; facsimile (760) 431-9624).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the ESA, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of conservation resources. The Service's present system for designating 
critical habitat is driven by litigation 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 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 473 species, or 38 percent 
of the 1,253 listed species in the U.S. under the jurisdiction of the 
Service, have designated critical habitat.
    We address the habitat needs of all 1,253 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. In the case of listed 
plants, such as Navarretia fossalis, section 9 of the Act prohibits any 
person subject to the jurisdiction of the United States from removing 
and reducing to possession any such species from areas under Federal 
jurisdiction; maliciously damaging or destroying any such species on 
such area; or removing, cutting, digging up, or damaging or destroying 
any such species on any other area in knowing violation of any law or 
regulation of any state or in the course of any violation of a State 
criminal trespass law. The Service believes that it is these measures 
that may make the difference between extinction and survival for many 
species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434, and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service). On December 9, 2004, the Director issued 
guidance to be used in making section 7 adverse modification 
determinations.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits regarding critical habitat 
designation, 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 and to comply 
with the growing number of adverse court orders. As a result, the 
Service's own proposals to undertake conservation actions based on 
biological priorities are significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for additional public 
participation beyond that minimally required by the Administrative 
Procedures Act (APA), the Act, and the Service's implementing 
regulations, or to take additional time for review of comments and 
information to ensure the rule has addressed all the pertinent issues 
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 will suffer adverse impacts from these decisions challenge 
them. The cycle of litigation appears endless, is very expensive, and 
in the final analysis provides 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. These costs result in minimal benefits to 
the species that are not already afforded by the protections of the Act 
enumerated earlier, and they directly reduce the funds available for 
direct and tangible conservation actions.

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Background

    It is our intent to discuss only those topics directly relevant to 
the identification and final designation of critical habitat for 
Navarretia fossalis in this rule. For more information on this species, 
beyond what is presented in the following paragraph, refer to the final 
rule listing this species as threatened published in the Federal 
Register on October 13, 1998 (63 FR 54975), and the proposed critical 
habitat rule published in the Federal Register on October 1, 2004 (69 
FR 60110). Additional information can also be found in the Recovery 
Plan for the Vernal Pools of Southern California (Recovery Plan) 
finalized on September 3, 1998 (Service 1998).
    Navarretia fossalis, a member of Polemoniaceae (Phlox family), is a 
low, mostly spreading or ascending, annual herb, 4 to 6 inches (in) (10 
to 15 centimeters (cm)) tall. This species grows in vernal pools, clay 
flats, irrigation ditches, alkali grasslands, alkali playas, and alkali 
sinks (Dudek and Associates, Inc. 2003; Spencer 1997). N. fossalis is 
distributed from northwestern Los Angeles County and western Riverside 
County, south through coastal San Diego County, California to 
northwestern Baja California, Mexico (Moran 1977; Oberbauer 1992). 
Fewer than 30 populations exist in the United States (63 FR 54975). 
Nearly 60 percent of the known populations are concentrated in three 
locations: Otay Mesa in southern San Diego County, along the San 
Jacinto River in western Riverside County, and near Hemet in Riverside 
County (Service 1998). We estimate that less than 300 ac (120 ha) of 
habitat in the United States was occupied by this species (63 FR 
54975). In Mexico, N. fossalis is known from fewer than 10 populations 
clustered in three areas: along the international border, on the 
plateaus south of the Rio Guadalupe, and on the San Quintin coastal 
plain (Moran 1977).

Previous Federal Action

    For more information on previous federal actions concerning 
Navarretia fossalis, refer to the final listing rule published in the 
Federal Register on October 13, 1998 (63 FR 54975). Efforts necessary 
for the recovery of N. fossalis are presented in the Recovery Plan 
(Service 1998).
    At the time of listing, we concluded that designation of critical 
habitat for Navarretia fossalis was not prudent because such 
designation would not benefit the species. On November 15, 2001, a 
lawsuit was filed against the Department of the Interior (DOI) and the 
Service by the Center for Biological Diversity and California Native 
Plant Society, challenging our ``not prudent'' determinations for eight 
plants including N. fossalis (CBD, et al. v. Norton, No. 01-CV-2101 
(S.D. Cal.)). A second lawsuit asserting the same claim was filed 
against the DOI and us by the Building Industry Legal Defense 
Foundation (BILD) on November 21, 2001 (BILD v. Norton, No. 01-CV-2145 
(S.D. Cal.)). The parties in both cases agreed to a remand of the 
critical habitat determinations to us for additional consideration. In 
an order dated July 1, 2002, the U.S. District Court for the Southern 
District of California directed us to reconsider our not prudent 
finding and publish a proposed critical habitat rule for N. fossalis, 
if prudent, on or before January 30, 2004. In a motion to modify the 
July 1, 2002 order, the DOI and we requested that the due date for the 
N. fossalis proposed rule be extended until October 1, 2004 and the due 
date for the designation of final critical habitat be extended to 
October 1, 2005. This motion was granted on September 9, 2003. The 
proposed critical habitat rule was signed on October 1, 2004 and 
published in the Federal Register on October 7, 2004 (69 FR 60110).

Summary of Comments and Recommendations

    We requested written comments from peer reviewers and the public on 
the proposed designation of critical habitat for Navarretia fossalis 
(69 FR 60110) and on the draft economic analysis during two separate 
comment periods noticed in the Federal Register. We also contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule and draft economic analysis.
    During the comment period for the proposed rule that opened on 
October 7, 2004, and closed on December 6, 2004, we received 4 comments 
directly addressing the proposed critical habitat designation: 1 from a 
peer reviewer, 1 from a Federal agency, and 2 from organizations or 
individuals. During the comment period that opened on August 31, 2005, 
and closed on September 14, 2005, we received 8 comment letters 
directly addressing the proposed critical habitat designation and the 
draft economic analysis. In general all of the comments supported the 
general idea of the designation of critical habitat, however most of 
the commenters made suggestions or comments on sections of the 
designation and draft economic analysis that they felt required 
revision. Comments received were grouped into general issues categories 
relating to the proposed critical habitat designation for N. fossalis 
and economic analysis and are addressed in the following summary and 
incorporated into the final rule as appropriate. We did not receive any 
requests for a public hearing.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from five knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from only one of 
the peer reviewers. The peer reviewer provided additional information, 
clarifications of occurrences, and suggestions to improve the final 
critical habitat rule (i.e., improvements to the primary constituent 
elements, identification of essential occurrences, and correction of 
factual errors). In general the peer reviewer agreed with designating 
critical habitat for Navarretia fossalis, however, the peer reviewer 
found the document in need of substantial revision.
    We reviewed all comments received from the peer reviewer and the 
public for substantive issues and new information regarding critical 
habitat for Navarretia fossalis. All comments are addressed in the 
following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    1. Comment: The peer reviewer submitted several separate comments 
on Navarretia fossalis and the Western Riverside Multiple Species 
Habitat Conservation Plan (MSHCP). These comments emphasized the 
importance of including in the final rule a clear, detailed explanation 
of the Western Riverside MSHCP, its associated Implementing Agreement 
(IA), the Service's formal section 7 consultation for the MSHCP, and 
the Service's responsibilities and authority under the MSHCP as they 
relate N. fossalis.
    Our Response: We appreciate the peer reviewer's concerns regarding 
the MSHCP and its associated documents. We have incorporated detailed 
information on these documents as they relate to Navarretia fossalis 
into this rule under the section titled ``Relationship of Critical 
Habitat to Approved Habitat Conservation Plans''. For further 
information, the MSHCP and its associated IA are available via the

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Internet at http://rcip.org/conservation.htm. The Service's formal 
section 7 consultation and Conceptual Reserve Design map are available 
via the Internet at http://www.fws.gov/pacific/carlsbad/WRV_MSHCP_BO.htm.
    2. Comment: The peer reviewer disagreed with our decision to 
exclude critical habitat based on the presence of an existing habitat 
conservation plan, specifically the Western Riverside MSHCP. Comments 
submitted included the statement that the Service failed to provide an 
adequate basis for the exclusion of critical habitat, that our decision 
to exclude critical habitat based on the MSHCP's ability to protect the 
species habitat was not adequately supported, and that there are 
federal agencies that are signatory to the MSHCP and therefore critical 
habitat should be identified for those projects and agencies operating 
outside the MSHCP.
    Our Response: Section 4(b)(2) of the Act allows us to consider the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. An area 
may be excluded from critical habitat if it is determined that the 
benefits of exclusion outweigh the benefits of specifying a particular 
area as critical habitat, unless the failure to designate such an area 
as critical habitat will result in the extinction of the species. We 
have determined that benefits of excluding non-Federal lands covered by 
the Western Riverside MSHCP outweigh the benefits of including non-
Federal lands as critical habitat. Additionally, we have included a 
more detailed analysis of the benefits of this habitat conservation 
plan (HCP) in this final rule under the ``Relationship of Critical 
Habitat to Approved Habitat Conservation Plans'' section.
    3. Comment: The peer reviewer disagreed with the Service's 
statement in the SUPPLEMENTARY INFORMATION section that designation of 
critical habitat provides little additional protection to species. 
Concern was expressed that a critical habitat proposal was not the 
appropriate venue for a discussion of the resource and procedural 
difficulties in designating critical habitat. It was suggested that 
critical habitat could be used as a tool to manage or end threats to 
the species, such as manure dumping. Additionally, it was suggested 
that critical habitat designation would give more recognition and 
attention to Navarretia fossalis habitat.
    Our Response: As discussed in the SUPPLEMENTARY INFORMATION section 
and other sections of this and other critical habitat designations, we 
believe that (in most cases) various conservation mechanisms provide 
greater incentives and conservation benefits than does the designation 
of critical habitat. These include section 7 consultations, the section 
4 recovery planning process, the section 9 protective prohibitions of 
unauthorized take, section 6 funding to the States, the section 10 
incidental take permit process, and cooperative programs with private 
and public landholders and tribal nations.
    While we concur that critical habitat designation can provide some 
level of species protection by addressing cumulative effects of 
numerous impacts to the habitat in certain circumstances, this can only 
be provided if there is a Federal nexus for those agencies planning 
actions that may impact the designated habitat. We are unaware of any 
Federal nexus that would generally apply to application of soil 
amendments such as the dumping of manure. While designation of critical 
habitat may give the species habitat more recognition and attention, it 
is our experience that landowners generally react negatively to having 
their property designated as critical habitat. Consequently, this is a 
strong disincentive for them to cooperate in the conservation of the 
species in question.
    4. Comment: The peer reviewer disagreed with the Service's 
statement that the exclusion of critical habitat based on existing HCPs 
offers ``unhindered, continued ability to seek new partnerships with 
future HCP participants.'' The reviewer believed the Service should 
continue working cooperatively with partners on HCPs and other 
conservation efforts once critical habitat has been designated, and 
asked that we provide further explanation of how the designation of 
critical habitat may impede cooperative conservation efforts, such as 
the MSHCP.
    Our Response: Both HCPs and critical habitat designations are 
designed to provide conservation measures to protect species and their 
habitats. The advantage of seeking new conservation partnerships 
(through HCPs or other means) is they can offer active management and 
other conservation measures for the habitat on a full-time and 
predictable basis. Critical habitat designations only prevent adverse 
modification of the habitat where there is a Federal nexus to the 
modifying activity. The designation of critical habitat may remove 
incentives to participate in the HCP processes, in part because of 
added regulatory uncertainty, increased costs to plan development and 
implementation, weakened stakeholder support, delayed approval and 
development of the plan, and greater vulnerability to legal challenge. 
We look forward to working with HCP applicants to ensure that their 
plans meet the issuance criteria and that designation of critical 
habitat on lands where an HCP is in development does not delay the 
approval and implementation of their HCP. As stated in our response 
under Comment 4 above, it is our experience that landowners generally 
react negatively to having their property designated as critical 
habitat. Additionally, HCPs offer conservation of covered species 
whether or not the area is designated as critical habitat.
    5. Comment: The peer reviewer suggested expanding the discussion on 
Special Management Considerations. Recommendations included citing 
specific language from the Act to support our statement that occupied 
habitat may be included in critical habitat only if the essential 
features may require special management or protection, and clarifying 
the extent and limitations of management measures proposed under the 
MSHCP. The reviewer was concerned that the MSHCP had not yet resulted 
in the implementation of management actions that would address threats 
to the species, such as soil chemistry alteration resulting from manure 
dumping.
    Our Response: As stated in the ``Critical Habitat'' section of the 
proposed rule, section 3(5)(A) of the Act defines critical habitat as 
the specific areas within the geographic area occupied by the species 
on which are found those physical and biological features (i) essential 
to the conservation of the species and (ii) which may require special 
management considerations or protection. Within the ``Special 
Management Considerations'' section below, we have expanded our 
discussion to address this comment. We have also provided a more 
detailed discussion of the management measures proposed under the MSHCP 
(see ``Relationship of Critical Habitat to Approved Habitat 
Conservation Plans'' section).
    6. Comment: The peer reviewer suggested incorporating changes into 
the final rule to better address the unique status of plants under the 
Act, including the limited protection plants are provided under section 
9 of the Act, and the assistance critical habitat could provide to the 
protection and recovery of Navarretia fossalis.
    Our Response: As stated in the ``Effects of Critical Habitat 
Designation'' section of the proposed rule, Section 7

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of the Act requires Federal agencies, including the Service, to ensure 
that actions they fund, authorize, or carry out are not likely to 
destroy or adversely modify critical habitat. Federal actions not 
affecting listed species or critical habitat and actions on non-Federal 
and private lands that are not federally funded, authorized, or 
permitted do not require section 7 consultation. The designation of 
critical habitat would not change this. Navarretia fossalis is 
currently known to occur predominantly on private lands. If occupied 
private lands were designated as critical habitat, any actions with a 
Federal nexus that might adversely affect critical habitat would 
require a consultation with us. However, consultation for activities 
(e.g., habitat modification) with a Federal nexus which might adversely 
impact the species in occupied habitat would be required even without 
the critical habitat designation. Since there is no prohibition against 
take of listed plants on private lands, activities without a Federal 
nexus which might adversely impact the species or its habitat would not 
require consultation with us even with a critical habitat designation.
    7. Comment: The peer reviewer believes that threats to the species 
are not adequately addressed in the proposed rule. Additional threats 
to discuss include the following: (1) Manure spreading which buries the 
seed bank, introduces vast quantities of organic material and 
nutrients, and alters soil composition and chemistry allowing for the 
invasion of alkali intolerant weeds; (2) activities posed by MSHCP 
covered projects such as the State Route 79 Realignment Project, the 
Ramona Expressway, and the San Jacinto River Flood Control Project; 
and, (3) non-seasonal flows which may result from future development.
    Our Response: We address the threats of manure spreading, MSHCP 
covered projects, and non-seasonal flows in the ``Relationship of 
Critical Habitat to Approved Habitat Conservation Plans'' and ``Special 
Management Considerations or Protections'' sections of this final rule.

Public Comments

    1. Comment: One commenter indicated they were interested in working 
with us to plan for the conservation of Navarretia fossalis. This 
commenter indicated that more conservation could be achieved through 
partnerships with private land owners than through the designation of 
critical habitat. The commenter believed the largest benefit of the 
critical habitat process was that it provided information to land 
owners of what areas are important for N. fossalis conservation and 
would not provide any extra protection.
    Our Response: We are currently in the process of contacting and 
working with this land owner to create a partnership that will result 
in the conservation of Navarretia fossalis at this location.
    2. Comment: One commenter disagreed with our exclusion of 
Department of Defense (DOD) lands under section 4(b)(2) of the Act as 
well as the exemption of DOD lands covered by an Integrated Natural 
Resources Management Plan (INRMP) under section 4(a)(3) of the Act. The 
commenter disagreed with removing these lands from the designation of 
critical habitat because they did not believe that the INRMP provides 
the same conservation protections to Navarretia fossalis that critical 
habitat would.
    Our Response: Section 318 of fiscal year 2004 the National Defense 
Authorization Act (Public Law 108-136) amended the Endangered Species 
Act to address the relationship of INRMPs to critical habitat by adding 
a new section 4(a)(3). This provision prohibits the Service from 
designating as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an INRMP prepared under section 101 of the 
Sikes Act (16 U.S.C. 670a), if the Secretary of the Interior determines 
in writing that such plan provides a benefit to the species for which 
critical habitat is proposed for designation.
    The lands at Marine Corps Air Station (MCAS) Miramar and Marine 
Corps Base (MCB) Camp Pendleton are covered by approved INRMPs that 
identify sensitive natural resources with various resource conservation 
requirements and management concerns, and both INRMPs provide a benefit 
to Navarretia fossalis. As a result of the INRMPs on both there have 
been base wide surveys for vernal pools and sensitive species that 
occur in vernal pool habitat. These surveys are then used to create 
maps for conservation management and to facilitate training in a way 
that can co-exist with the sensitive resources (for more details, see 
the Section ``Application of Section 4(a)(3) and Exclusions under 
Section 4(b)(2) of the Act.''
    3. Comment: One commenter stated that the goals outlined in the 
Recovery Plan (Service 1998) should be included in this document.
    Our Response: It is our policy to use the original scientific 
research that was used to create the Recovery Plan in identifying 
critical habitat. The reader is encouraged to refer to the Recovery 
Plan to better understand the goals outlined in that document.
    4. Comment: One commenter stated that HCPs fail to address 
degradation of habitat (e.g., off-road vehicle impacts on vernal pools) 
inside the reserves. The commenter believes that critical habitat 
designation in these areas would provide additional funding 
opportunities for law enforcement presence through a variety of state 
and federal funding mechanisms.
    Our Response: The Service believes that the designation of critical 
habitat within HCPs would do little to reduce the impacts caused to 
Navarretia fossalis by unauthorized activities occurring in reserve 
areas. These activities lack a federal nexus and therefore would be 
unaffected by the designation of critical habitat. In most areas there 
are local ordinances that make such unauthorized activities against the 
law. These laws should be enforced in order to avoid degradation to the 
sensitive resources that the HCPs have been created to protect.
    5. Comment: One commenter supported our decision to exclude 
critical habitat based on the presence of an existing HCP. The 
commenter stated that the MSHCP provides protection for covered species 
and sensitive habitats, including Navarretia fossalis and its habitat. 
The commenter expressed concern that the designation of critical 
habitat within HCP boundaries would undermine partnerships with 
landowners that were developed during the HCP planning process. The 
commenter further stated that landowners participated in the regional 
MSHCP planning effort in part to prevent the inefficient and 
ineffective project-by-project regulation that is associated with 
designated critical habitat, and that designating critical habitat in 
this area would subject landowners to two different regulatory 
processes that would be a financial burden.
    Our Response: As stated in the ``Relationship of Critical Habitat 
to Approved Habitat Conservation Plans'' section of the proposed rule, 
we agree that the MSHCP benefits the conservation of Navarretia 
fossalis and the benefits of excluding lands covered under the MSHCP 
outweigh the benefits of including such lands. We also recognize that 
the designation of critical habitat may remove incentives to 
participate in the HCP processes, in part because of added regulatory 
uncertainty, increased costs to plan development and implementation, 
weakened stakeholder support, delayed approval

[[Page 60662]]

and development of the plan, and greater vulnerability to legal 
challenge. We believe HCPs are one of the most important tools for 
reconciling land use with the conservation of listed species on non-
Federal lands. We look forward to working with HCP applicants to ensure 
their plans meet the issuance criteria and that designation of critical 
habitat on lands where an HCP is in development does not delay the 
approval and implementation of their HCP.
    6. Comment: One commenter disagreed with our decision to exclude 
critical habitat based on the presence of an existing HCP. The 
commenter stated that not all agencies are signatory to the MSHCP, and 
therefore, critical habitat should be identified for those projects and 
agencies operating outside the MSHCP. The commenter was concerned that 
the reason for habitat exclusions did not have a scientific basis.
    Our Response: See the response to Peer Reviewer Comment 4 above.
    7. Comment: One commenter believed threats to the species were not 
adequately addressed in the proposed rule and the MSHCP. The commenter 
suggested discussing the threats of manure spreading and non-seasonal 
flows which may result from future development.
    Our Response: See the response to Peer Reviewer Comment 7 above.
    8. Comment: One commenter stated that failure to designate critical 
habitat within HCP boundaries would be a disincentive for landowners to 
develop future HCPs.
    Our Response: We disagree with this comment. It has been our 
experience that many different stakeholders participate in creating an 
HCP. It is important for these stakeholders to continue to have a good 
working relationship with us after the planning process is completed. 
We have found that the negative reaction of landowners to the 
subsequent designation of critical habitat can threaten the 
partnerships on which a functioning HCP is built.
    9. Comment: One commenter stated that it is incumbent upon the 
Service to designate areas as critical habitat if they are identified 
as ``essential habitat'' based on the definition of critical habitat.
    Our Response: Section 4(b)(2) of the Act allows us to consider the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. Areas 
identified as habitat with essential features may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such an area as critical 
habitat will result in the extinction of the species. We have 
determined that the benefits of exclusion of habitat with essential 
features covered by the City of San Diego Subarea Plan and County of 
San Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside 
County MSHCP outweigh the benefits of inclusion. See the ``Relationship 
of Critical Habitat to Approved Habitat Conservation Plans'' section 
for a detailed discussion. We exempted critical habitat at Marine Corps 
Air Station Miramar and Marine Corps Base Camp Pendleton under section 
4(a)(3) of the Act because their respective Integrated Natural 
Resources Management Plans provide a benefit to Navarretia fossalis.
    In addition, the Service in this and other notices has been using 
the term ``essential habitat'' as shorthand for ``areas eligible for 
designation as critical habitat''. We recognize that this might cause 
confusion with the provisions of the Act that areas unoccupied at the 
time of listing may be designated by the Secretary as ``essential to 
the conservation of the species'' and so included in a critical habitat 
designation. The use of the term ``essential habitat'' in this and past 
notices is not a determination by the Service or the Secretary that 
this habitat is, within the terms of the Act, essential to the 
conservation of the species, unless the use of the term is accompanied 
by an express statement that the Secretary has made such a 
determination. In either event, however, we have authority under 
section 4(b)(2) of the Act to exclude any such area.
    10. Comment: One commenter stated that connectivity between 
essential habitat units is lacking.
    Our Response: Connectivity between habitat units is likely 
important for the long-term conservation of vernal pools. However, we 
do not have adequate information at this time to quantify the extent of 
the area needed to maintain connectivity between vernal pool habitats. 
Therefore, we are unable to designate these areas as critical habitat.
    11. Comment: One commenter stated that the Service should consider 
multiple variables (e.g., life strategy, disturbance probability, 
potential habitat, population size, recovery from disturbance, habitat 
suitability, predation, and competition) when determining the size of 
plant conservation areas and critical habitat units. Another commenter 
stated that the purpose of critical habitat designation is not only to 
prevent extinction but to facilitate recovery, as supported by case 
law. The commenter stated that the critical habitat proposal failed to 
include areas of unoccupied suitable habitat that would provide for 
recovery opportunities, including genetic exchange and migration in 
response to climate change.
    Our Response: In making this designation of critical habitat we 
considered all of the published and unpublished literature on this 
species. This literature included information on the life history, 
habitat requirements, distribution, population sizes, and restoration 
of Navarretia fossalis. This information was used to identify the 
primary constituent elements and habitat areas with features essential 
to the conservation of N. fossalis. Other information which would have 
been helpful to the process of designating critical habitat, such as 
information about pollinators or the population genetics of this 
species was not available. Furthermore, we recognize that designation 
of critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, critical habitat designations do not signal 
that habitat outside the designation is unimportant or may not be 
required for recovery. In addition, the designation of critical habitat 
provides only restrictions on adverse modification to that habitat 
where there is a Federal nexus for the modification. It provides no 
mechanism for positive conservation actions that might be beneficial to 
the species, such as additional review of or increased efforts toward 
restoration and recovery.

Public Comments on the Draft Economic Analysis

    1. Comment: One commenter states that the Draft Economic Analysis 
(DEA) quantifies costs for projects that do not overlap occupied 
habitat for Navarretia fossalis and that the proposed critical habitat 
is much larger than the occupied habitat, exaggerating the economic 
impacts.
    Our Response: As described in Section 5.1, Table 6 of the DEA, past 
development projects outside of the footprint of any proposed critical 
habitat designation have impacted the species habitat within the lands 
proposed for designation. In recognition of this relationship, the DEA 
appropriately quantifies the costs of the project modifications 
implemented at the offsite development projects to protect the species 
and habitat within the proposed designation. This is consistent with 
the scope of analysis described in Section 1.2: The analysis considers 
the cost of

[[Page 60663]]

species and habitat conservation, not solely costs associated with 
projects within occupied habitat.
    2. Comment: A comment provided on the DEA asserts that the 
methodology used to quantify development impacts is questionable as it 
does not examine and quantify the cost of purchasing the reserves for 
the various habitat conservation plans (HCPs); that land will have to 
be purchased or obtained through mitigation deductions and that 
projects may have to be modified to avoid impacts to vernal pools and 
vernal pool watersheds. The comment also states the DEA does not 
analyze the potential loss of developable private lands or the 
potential cost of transfer of ownership of lands for mitigation.
    Our Response: Section 2.2.2.1 of the DEA describes the model 
applied to estimate impacts to development. The DEA assumes that 
development is allowed in habitat areas if appropriate project 
modifications and/or mitigation activities are undertaken, and/or 
mitigation fees paid. That is, this open city modeling approach assumes 
that land is not lost to development, but instead that development 
occurs with mitigation. Further, the various HCPs that encompass the 
proposed critical habitat designation do not describe the exact 
location or timing of each acre of private land to be acquired for the 
HCP reserves. However, as described in Section 5.2.4.1, current and 
forecasted land use and population growth rates were available from the 
counties to spatially forecast future development within the proposed 
critical habitat units.
    The Western Riverside Multiple Species Habitat Conservation Plan 
(MSHCP) has implemented a one-time mitigation fee for future 
development within the boundaries of the MSHPC. These funds will be 
used by the County to finance the future acquisition of lands for the 
MSHCP reserve and are captured by the DEA (Section 5.2.5). The 
remaining HCPs do not contain a mitigation fee component to their 
program. As outlined in Section 5.2.2, however, conservation and 
mitigation activities for all the HCPs, including the MSHCP, can be on-
site or off-site and can be accomplished by: restoration and 
enhancement; creation; purchasing preservation credits from a 
conservation bank; or purchasing vernal pool habitat from a private 
land owner and preserving wetted acreage. To account for the range of 
mitigation ratios among HCPs and the variety of mitigation measures 
available to the developer for conservation, the analysis presents the 
costs incurred by development for Navarretia fossalis conservation as a 
range. While options for mitigation exist, by applying the least costly 
measure to the low-end of the range of mitigation ratios and the most 
costly measure to the high-end of the range of mitigation ratios, the 
DEA captures and reports the costs associated with possible 
combinations of mitigation ratios and conservation efforts forecast to 
be used to offset impacts to the species and habitat.
    3. Comment: One commenter suggests that information on specific, 
planned development projects should be reviewed.
    Our Response: Throughout the development of the DEA, past and 
current development within the proposed critical habitat units was 
researched. As described in Table 6 of Section 5.1, several development 
projects are currently in progress and representatives from these 
companies were contacted to determine the details and status of the 
projects. The DEA captures the impacts of mitigating these projects 
based on information obtained from these representatives. Data are not 
available on all future development projects during the 20 year 
forecast period; thus, where specific information is unavailable, the 
analysis estimates average costs of impacts to development on a per-
acre rather than per-project basis.
    4. Comment: United States Marine Corps Air Station Miramar (MCAS 
Miramar) comments that the area is indeed part of a military airfield 
and that while no new development is currently planned, it cannot 
commit to stating that there will be no new development, or re-
development, of airfield associated facilities within Unit NI2 during 
the next 20 years.
    Our Response: The DEA is consistent with this comment as post-
designation effects estimated by the DEA are based only on activities 
that are ``reasonably foreseeable'' as described in Section 1.3. 
Furthermore, the DEA quantifies development impacts on developable 
land, and only 3.5 acres of the unit (677 acres) are vacant and 
available for development. The remaining acres are either already 
developed or undevelopable. The DEA does not anticipate impacts to 
redevelopment of already developed land as the primary constituent 
elements (PCEs) for the species do not exist within the footprint of 
the existing development (i.e., buildings, runways, and roads).
    5. Comment: A comment from Los Angeles County Department of 
Regional Planning states that the DEA should acknowledge that 
designation of critical habitat Units 1A and 1B should not impose a 
financial burden on the owners of that property because development of 
the southern portion of that property, if approved, would allow a 
reasonable return on their investment with the preservation of the 
habitat.
    Our Response: The DEA identifies and quantifies where possible 
costs of Navarretia fossalis conservation efforts. In determining the 
impact to projects of N. fossalis habitat conservation, the acreage of 
developable land in Units 1A and 1B was obtained from Los Angeles 
County Department of Regional Planning. This information is contained 
in Table 13, Acreage by Current Land Use Category and Habitat Unit, and 
identifies 471.1 acres of developable land in Unit 1A and 58.5 acres in 
Unit 1B. The DEA estimates a range of potential impacts that may be 
associated with development projects on the specified number of acres 
within these units as summarized in Section 5.2.5 Estimation Results: 
Cost of Mitigation Fees and Conservation Activities. The DEA 
anticipates that conservation of N. fossalis and habitat will not 
preclude development.
    6. Comment: One commenter states that the description of the 
Western Riverside MSHCP does not explain how the MSHCP will conserve 
essential habitat for Navarretia fossalis, and the economic impacts of 
implementing this plan. The commenter further states the analysis 
should note the amount of potential MSHCP reserve acreage in each 
critical habitat unit and the amount of essential habitat that will be 
conserved in each unit.
    Our Response: The economic impacts of implementing the MSHCP for 
Navarretia fossalis are captured in the DEA through the quantification 
of mitigation fees and of the costs of project modifications as 
described in Section 5.2.5. The mitigation fee collected from future 
development will be used to finance the acquisition of lands for the 
reserve and certain improvements necessary to implement the goals and 
objectives of the MSHCP. As described in Section 4.4.4, the MSHCP is 
criteria based, and the quantity and location of acres that will be 
added to the reserve within each critical habitat unit is not known 
with certainty.
    7. Comment: A comment provided by the California Native Plant 
Society (CNPS) and Center for Biological Diversity (CBD) states that 
the cost estimates of species conservation as provided in the DEA 
conflict with those estimated in the Western Riverside MSHCP and the 
San Diego Multiple Species Conservation Plan (MSCP), which are less. 
Therefore, either the

[[Page 60664]]

DEA or the HCPs contain errors in its impact estimates.
    Our Response: Section 8.2.1 of the MSHCP describes the costs of 
implementing the plan, including costs to acquire reserve lands, manage 
and monitor the reserve area, and general administration of the MSHCP. 
The County estimates these costs will total almost $1 billion during 
the first 25 years of the MSHCP. The MSCP similarly describes the costs 
of financing the plan's implementation. These impacts as described in 
the plans, however, are not directly comparable to the economic impact 
of Navarretia fossalis conservation as quantified in the DEA. 
Primarily, the policy actions being analyzed are different. The MSHCP 
and MSCP estimate the costs of acquiring and managing reserve areas and 
other conservation actions for the multiple species covered under the 
plan. Further, the geographic scope of the plans are different from 
that of the potential critical habitat designation.
    8. Comment: According to one comment, the Draft Economic Analysis 
(DEA) fails to include impacts to the proposed expansion of the Ramona 
Expressway and the construction of a dam across the San Jacinto River.
    Our Response: The Ramona Expressway is part of the State Route 79 
project described in Section 6.1.1.2 of the DEA. Consultants hired by 
Cal Trans for this project were contacted during the development of the 
DEA and indicated that it is too early to estimate what project 
modifications or mitigation may be required. Further, research 
undertaken during the development of the DEA did not identify a dam 
across the San Jacinto River and additional research conducted in 
response to public comment has also not identified a dam construction 
project on the San Jacinto River. In the case that this comment is 
referencing the San Jacinto River Flood Control Project, the associated 
costs are captured in Section 6.2 of the DEA.
    9. Comment: A comment provided by MCAS Miramar identifies future 
actions to protect the species in addition to those quantified in the 
DEA. These include (1) vernal pool basin delineation, (2) 
identification of restoration and re-establishment opportunities, (3) 
flora and fauna inventories, (4) maintenance and monitoring selected 
vernal pool areas, (5) establishment of an interpretive walk, (6) 
installation of signs and fencing, and (7) funding for an established 
burn study.
    Our Response: The DEA details conservation costs at MCAS Miramar in 
Section 6.4.1, Table 38. Research undertaken during the development of 
the DEA and following receipt of this comment confirms that the costs 
estimated in the DEA capture these categories of impact. The first, 
third, and fourth actions described in the comment letter are included 
in ``Vernal Pool Mapping/Survey'' as quantified in the DEA. The DEA 
also includes $10,000 annually for maintenance and monitoring (action 
number four) in the category ``Vernal Pool Management.'' ``Public 
Education,'' as quantified in the DEA, includes $10,000 for the 
interpretive walk (action number five) and $80,000 for signs (action 
number six), and ``Vernal Pool fire Effects Study'' as quantified 
includes $25,000 for the burn study in 2006 (action number 7).
    10. Comment: MCAS Miramar also comments that the DEA incorrectly 
explains the decision of where to locate the MV22 Osprey aircraft. In 
fact, there are three alternative basing locations for the MV22 Osprey 
on MCAS Miramar being evaluated; only one however overlaps with habitat 
that has features essential to the conservation of Navarretia fossalis. 
While this will be considered in evaluating the location alternatives, 
it is likely that the MV22 will be located at MCAS Miramar, potentially 
within the essential habitat for N. fossalis.
    Our Response: Section 6.4.1 of the DEA describes this project. This 
comment provides further information on the decision-making process but 
does not change the economic impacts to MCAS Miramar as described in 
the DEA.
    11. Comment: One comment states that the report appears biased 
because it implies that low income farmers are the principal landowners 
within the essential habitat being reviewed, and that the report does 
not provide a review of the economic status of the private landowners 
in the affected areas.
    Our Response: The DEA considers the status of public and private 
land ownership; however, the identity of every private landowner within 
the 31,086 acres of habitat with essential features is unknown. As 
described in Section 6.8, approximately one-third of all habitat with 
essential features is classified as agriculture land, and this 
agriculture land represents 65 percent of the developable acres. 
Considering farmers own a large percentage of the areas with essential 
features and developable land, the use of farmers as an example of a 
group of individuals that could be impacted in Section 1.1 is 
considered appropriate.
    12. Comment: One commenter requests that more detail be provided on 
local regulations that protect Navarretia fossalis habitat within San 
Diego, Los Angeles, and Riverside counties.
    Our Response: Section 4 of the DEA includes discussion of the 
relevant Federal, State, and local regulations that provide protection 
to the species and its habitat.
    13. Comment: One comment states that the DEA fails to discuss the 
potential U.S. Army Corps of Engineer (USACE) jurisdiction of the 
vernal pools found in Los Angeles County.
    Our Response: As described in Section 5.2.3, the DEA assumes that 
vernal playa habitat occurring in Los Angeles County is under USACE 
jurisdiction.
    14. Comment: Three commenters suggest the economic analysis should 
be limited to the 4,301 acres proposed for critical habitat rather than 
the 31,086 acres of essential habitat, which comprise lands proposed 
for designation, excluded from designation, and not included in the 
designation.
    Our Response: Conducting the economic analysis for all lands that 
contain the physical and biological features essential to the 
conservation of the species allows the Service to fully describe the 
economic costs of designating and excluding critical habitat.
    15. Comment: A comment provided asserts that the DEA needs to 
explain the difference between ``excluded'' and ``not included'' lands 
and how these two designations would affect the management of the 
species.
    Our Response: The term ``excluded'' refers to lands that meet the 
definition of critical habitat under section 3(5)(A) of the Act and 
were excluded as critical habitat under section 4(b)(2) of the Act. The 
term ``not included'' refers to lands that meet the definition of 
critical habitat under section 3(5)(A) of the Act and were exempted as 
critical habitat under section 4(a)(3) of the Act. In both cases, no 
critical habitat was designated and section 7(a)(2) of the Act would 
not apply.
    16. Comment: Three commenters request an extension of the public 
comment period and/or suggest the public review period was too brief.
    Our Response: We were unable to extend the comment period or have a 
lengthy comment period because of the court-ordered deadline to publish 
the final rule.

Comments from States

    Section 4(i) of the Act states, the Secretary shall submit to the 
State agency a written justification for her failure to adopt 
regulations consistent with the State agency's comments or

[[Page 60665]]

petition. The California Department of Fish and Game (CDFG) did not 
provide comments on the proposed rule or on the draft economic analysis 
to designate critical habitat for Navarretia fossalis.

Department of Defense (DOD) Comments

    We received comments from the U.S. Navy (Navy) regarding the 
proposed designation of critical habitat on Marine Corps Base, Camp 
Pendleton (MCB Camp Pendleton) regarding the proposed designation of 
critical habitat. No other Federal agencies submitted comments on this 
critical habitat.
    1. Comment: The Navy believes that MCB Camp Pendleton's INRMP 
provides a benefit to Navarretia fossalis and should be exempt from 
critical habitat under 4(a)(3) of the Act. The Navy assured us that MCB 
Camp Pendleton is committed to implementing the INRMP by using an 
ecosystem approach to conservation.
    Our Response: In the proposed rule, we excluded ``mission critical 
training areas'' on MCB Camp Pendleton under section 4(b)(2) of the Act 
due to the effect of critical habitat on national security. However, 
MCP Camp Pendleton provided us with information that required us to re-
evaluate the benefits of their INRMP to Navarretia fossalis. As a 
result, we have determined that their INRMP benefits the species and 
MCB Camp Pendleton is exempt from critical habitat pursuant to section 
4(a)(3) of the Act (see ``Application of Section 4(a)(3) and Exclusions 
under Section 4(b)(2) of the Act'' for a detailed discussion).
    2. Comment: The Navy stated that the consideration of the potential 
impacts to MCB Camp Pendleton's military mission from the proposed 
critical habitat supports exclusion under 4(b)(2) of the Act of lands 
that have value for military training and operations in the event that 
4(a)(3) of the act was not warranted. They stated that the benefits of 
avoiding adverse impacts to military readiness capabilities make 
exclusion of MCB Camp Pendleton's lands both necessary and supportable.
    Our Response: All DOD lands with habitat features essential for 
Navarretia fossalis on MCB Camp Pendleton are exempt from being 
designated as critical habitat pursuant to section 4(a)(3) of the Act, 
and therefore, no exclusions are necessary under section 4(b)(2) of the 
Act. For additional information, please see our responses to comment 2 
under Public Comments and comment 1 above. Also see Application of 
Section 4(a)(3) and Exclusions under Section 4(b)(2) of the Act for a 
detailed discussion of the application of section 4(a)(3) of the Act.

Summary of Changes from the Proposed Rule

    In developing the final critical habitat designation for Navarretia 
fossalis, we reviewed public comments received on the proposed rule and 
draft economic analysis; conducted further evaluation of lands included 
as proposed critical habitat; and refined our mapping boundaries. Based 
on our analysis we made several changes to the proposed rule, including 
refining the mapping area and changes based on sections 4(a)(3) and 
4(b)(2) of the Act.
    We refined our mapping criteria to better delineate habitat with 
essential features. When we reviewed our mapped critical habitat units 
we found there were areas that did not contain the physical and 
biological features essential to the conservation of Navarretia 
fossalis. For example, some areas contained land that was downhill from 
vernal pool complexes containing N. fossalis. This adjacent land may 
act as a buffer and contribute to the overall health of the vernal pool 
ecosystem, but did not contain the primary constituent elements (PCEs) 
for this species. In other areas buildings or paved roads were included 
in our proposed designation. In most cases this was due to our minimum 
grid cell size of 100 meters (328 feet), but where the majority of the 
grid was developed, we eliminated these grid cells from critical 
habitat. There were also areas on MCAS Miramar where we had new survey 
data which did not support our analysis of specific areas that we 
proposed as having essential features. Even though these areas are 
exempt from critical habitat under 4(a)(3) of the Act, we felt it was 
important to clarify that these areas are not considered essential for 
the species at this time. These refinements resulted in a reduction in 
the amount of land designated as critical habitat in Units 1A, 2, 3, 
4E, 5A and 5D (see Table 1). Areas exempt from the designation of 
critical habitat under sections 4(a)(3) and 4(b)(2) of the Act were 
also refined, resulting in further reduction of the amount of land 
designated as habitat with essential features. Overall these 
refinements resulted in a reduction of habitat for N. fossalis from 
31,086 ac (12,580 ha) to 22,804 ac (9,228 ha).
    In the proposed rule, we excluded ``mission critical training 
areas'' on MCB Camp Pendleton under 4(b)(2) of the Act due to the 
effect of critical habitat on national security. However, MCP Camp 
Pendleton provided us with information that required us to re-evaluate 
the benefits of their INRMP to Navarretia fossalis. As a result, we 
have determined that their INRMP benefits the species and are now 
exempting ``mission critical training areas'' on MCB Camp Pendleton 
from final critical habitat under section 4(a)(3) of the Act (see 
``Application of Section 4(a)(3) of the Act'' for a detailed 
discussion).

Areas Removed from Critical Habitat Designation

    We re-evaluated our proposed critical habitat unit boundaries, 
refined our mapping methodology, and used new information to remove 
additional lands that do not contain the physical and biological 
features essential to the conservation of Navarretia fossalis. These 
removed lands are as follows (see Table 1):
    1. Unit 2: San Diego North Coastal Mesas Critical Habitat Unit, San 
Diego County. We removed approximately 117.5 ac (48 ha) of land because 
these areas have been developed or no longer contribute to the 
hydrology of the vernal pools that support Navarretia fossalis.
    2. Unit 3: San Diego Central Coastal Mesas Critical Habitat Unit, 
San Diego County. We removed approximate 72 ac (29 ha) because the 
known occurrences have been lost to residential development and the 
physical and biological features essential to the conservation of 
Navarretia fossalis are no longer present.
    3. Unit 4: San Diego Inland Valleys Critical Habitat Unit, San 
Diego County. We removed Subunit 4A (10 ac) (4 ha) and Subunit 4B (42 
ac) (17 ha) in the City of San Marcos because these areas do not 
currently support Navarretia fossalis, there is no current information 
that Navarretia fossalis occurs within Subunit 4A and Subunit 4B, there 
is no information that these vernal pool areas contain the physical and 
biological features essential to the conservation of Navarretia 
fossalis. We removed portions of Subunit 4E in downtown Ramona (531 ac) 
(215 ha) and in other areas of the Ramona Grasslands (2,335 ac) (945 
ha) (the remaining portions of Subunit 4E) because the vernal pool 
areas within downtown Ramona and in the other areas of the Ramona 
Grasslands do not currently support Navarretia fossalis, none of the 
historical occurrences are believed to be extant, there is no current 
information that N. fossalis occurs within downtown Ramona or in the 
other areas of the Ramona Grasslands, and there is no information that 
these vernal pool areas contain the physical and biological features 
essential to the conservation of N. fossalis.
    4. Unit 5: San Diego Southern Coastal Mesas Critical Habitat Unit, 
San Diego

[[Page 60666]]

County. We removed Subunit 5D (150 ac) (61 ha) because there is no 
current or historical information that Navarretia fossalis occurs 
within Subunit 5D, there is no information that these vernal pool areas 
contain the physical and biological features essential to the 
conservation of N. fossalis; a portion of land identified as containing 
the physical and biological features essential to the conservation of 
N. fossalis in the proposed rule has been developed for the Border 
Infrastructure System and no longer contribute to the hydrology of the 
vernal pools; and (4) the vernal pool restoration work being conducted 
at Arnie's Point is for the San Diego fairy shrimp (Branchinecta 
sandiegonensis) and Riverside fairy shrimp (Streptocephalus woottoni) 
and not to offset any losses to N. fossalis.
    In addition to the above revisions, we made adjustments to the 
boundaries of the areas included in the critical habitat designation. 
Adjustments were made for two reasons: (1) A selection of the 328-ft 
(100-m) grid cells used for Geographic Information Systems (GIS) 
mapping contained mostly urbanized land that is non-essential to the 
species; and, (2) grid cells containing all or mostly upland habitat 
not directly contributing to the hydrology of the vernal pools were 
removed. Since these areas do not contain the PCEs, we removed them 
from the final critical habitat designation.

  Table 1.--Summary of Changes From the Proposed Rule Designating Critical Habitat (CH) for Navarretia fossalis
----------------------------------------------------------------------------------------------------------------
                                                                                                      Reduction
                                                   Proposed CH                    Final CH            (percent)
----------------------------------------------------------------------------------------------------------------
Los Angeles County--
    Cruzan Mesa (Unit 1A)................  534 ac.....................  294 ac.....................           45
                                           216 ha.....................   119 ha....................
    Plum Canyon (Unit 1B)................  62 ac......................  32 ac......................           48
                                           25 ha......................  13 ha......................
San Diego County--
    Poinsettia Lane Commuter Station       143 ac.....................  22 ac......................           85
     (Unit 2).                             58 ha......................  9 ha.......................
    Santa Fe Valley (Unit 3).............  143 ac.....................  0 ac.......................          100
                                           58 ha......................  0 ha.......................
    San Marcos (Unit 4A).................  10 ac......................  0 ac.......................          100
                                           4 ha.......................  0 ha.......................
    San Marcos (Unit 4B).................  42 ac......................  0 ac.......................          100
                                           17 ha......................  0 ha.......................
    San Marcos (Subunit 4C1 and 4C2).....  99 ac......................  73 ac......................           26
                                           40 ha......................  30 ha......................
    San Marcos (Unit 4D).................  10 ac......................  7 ac.......................           30
                                           4 ha.......................   3 ha......................
    Ramona (Unit 4E).....................  2,866 ac...................  86 ac......................           97
                                           1,160 ha...................  35 ha......................
    Sweetwater Vernal Pools (Unit 5A)....  136 ac.....................  89 ac......................           35
                                           55 ha......................  36 ha......................
    Otay River Valley (Unit 5B)..........  42 ac......................  42 ac......................            0
                                           17 ha......................  17 ha......................
    Otay Mesa (Unit 5C)..................  64 ac......................  14 ac......................           78
                                           26 ha......................  6 ha.......................
    Arnie's Point (Unit 5D)..............  150 ac.....................  0 ac.......................          100
                                           61 ha......................  0 ha.......................
                                          ------------------------------
        Total............................  4,301 ac...................  652 ac.....................           85
                                           1,741 ha...................  264 ha.....................
----------------------------------------------------------------------------------------------------------------

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the provisions of section 4 of 
[the] Act, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by a species at the time 
it is listed in accordance with the provisions of section 4 of [the] 
Act, upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures that are necessary to bring an endangered or a 
threatened species to the point at which listing under the Act is no 
longer necessary.
    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 carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are ``essential to the conservation of the species.'' Critical habitat 
designations identify, to the extent known using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may

[[Page 60667]]

require special management or protection. Thus, we do not include areas 
where existing management is sufficient to conserve the species. (As 
discussed below, such areas may also be excluded from critical habitat 
pursuant to section 4(b)(2).) Accordingly, when the best available 
scientific data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species at the time of 
listing. An area currently occupied by the species but was not known to 
be occupied at the time of listing will likely be essential to the 
conservation of the species and, therefore, included in the critical 
habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
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 is generally the listing package for the species. 
Additional information sources include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge. All information is used in 
accordance with the provisions of Section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    This includes information from the proposed listing rule (64 FR 
71714), final listing rule (67 FR 44382), data from research and survey 
observations published in peer-reviewed articles, site visits, regional 
Geographic Information System (GIS) layers, soil, and species 
coverages, and data compiled in the California Natural Diversity 
Database (CNDDB).
    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that are essential to 
the conservation of Navarretia fossalis. We reviewed and evaluated the 
Recovery Plan for Vernal Pools of Southern California and its 
supporting information and documentation (Service 1998), section 7 
consultations and relevant project reports, site surveys conducted by 
Service biologists, research and survey observations published in peer-
reviewed articles, regional GIS vegetation, soil, and species 
coverages, and data compiled in the California Natural Diversity 
Database (CNDDB).
    After creating a GIS coverage of the habitat areas, we created 
legal descriptions of the final critical habitat boundaries. We used a 
100-meter grid to establish Universal Transverse Mercator (UTM) North 
American Datum 27 (NAD 27) coordinates which, when connected, provided 
the boundaries of critical habitat. Habitat areas with essential 
features were then analyzed with respect to sections 3(5)(A), 4(a)(3), 
and 4(b)(2) of the Act, and any locations that should not be included 
or excluded from proposed critical habitat were identified. We 
designated critical habitat on the specific areas within the 
geographical area occupied by the species at the time of listing on 
which are found those physical or biological features essential to the 
conservation of the species and which may require special management 
considerations. In the final listing rule, we identified Navarretia 
fossalis from Otay Mesa in southern San Diego County, coastal San Diego 
County, Ramona in central San Diego County, and on Federal lands at 
Marine Corps Base Camp Pendleton and Marine Corps Air Station Miramar 
in central San Diego County; San Jacinto River and the Hemet area in 
western Riverside County and southern Riverside County; and 
northwestern Los Angeles County. In this rule, Unit 1 is in 
northwestern Los Angeles County, Unit 2 is in coastal San Diego County, 
Subunit 4E is in Ramona, and Subunits 5B and 5C are on Otay Mesa. We 
are also designating critical habitat on specific areas outside the 
geographic area occupied by N. fossalis at the time of listing upon a 
determination by the Secretary of the Interior that such areas are 
essential for the conservation of N. fossalis. Subunits 4C and 4D in 
the City of San Marcos and Subunit 5A were not specifically mentioned 
in the final listing rule for N. fossalis, but information on these 
occurrences are contained in our final listing rule files for this 
species. We believe those subunits are essential for the conservation 
of N. fossalis because these populations are needed for recovery, to 
maintain the geographical distribution of the species, and unique 
soils. The observations for Subunits 4C and 4D are dated 1993 and 1995 
and the CNDDB records for N. fossalis at San Marcos are in our final 
listing rule files for this species. The observation for Subunit 5A is 
dated 1985 and our CNDDB record for N. fossalis located southeast of 
Sweetwater Reservoir is in our final listing rule files for this 
species.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat that were within the geographical area occupied by the species 
at the time of listing, we are required to base critical habitat 
determinations on the best scientific data available and to consider 
those physical and biological features (primary constituent elements 
(PCEs)) that are essential to the conservation of the species, and that 
may require special management considerations or protection. These 
include, but are not

[[Page 60668]]

limited to: space for individual and population growth and for normal 
behavior; water, air, light, minerals, or other nutritional or 
physiological requirements; space for growth, development and 
reproduction, including the space necessary for pollinators to live; 
and habitats that are protected from disturbance or are representative 
of the historic geographical and ecological distributions of a species.
    The specific biological and physical features, otherwise referred 
to as the primary constituent elements, which comprise Navarretia 
fossalis habitat are based on specific components that provide for the 
essential biological needs of the species as described below.

Space for Individual and Population Growth, Including Sites for 
Germination, Pollination, Reproduction, Pollen and Seed Dispersal, and 
Seed Dormancy

    Navarretia fossalis is primarily associated with vernal pools and 
alkali wetlands including playa and sink habitats (Moran 1977, Bramlet 
1993; Day 1993) at elevations between sea level and 4,250 ft (1,300 m), 
and on flat to gently sloping terrain. The species also occasionally 
occurs in ditches and other artificial depressions that mimic vernal 
pool habitat (Moran 1977).
    Navarretia fossalis flowers from May through June. This species has 
evolved mechanisms to self-pollinate (Spencer 1997). The fruit of this 
species consists of indehiscent (i.e., not opening spontaneously at 
maturity to release seeds) capsules 0.08 to 0.12 inches (in) (2 to 3 
millimeters (mm)) long containing 5 to 25 seeds. The seeds develop a 
sticky, slimy coating when wet, which may retain moisture and aid in 
germination (Moran 1977). After fruiting, the species dries out and 
loses its color rapidly, and can be difficult to detect late in the dry 
season or in dry years. The number of individuals of N. fossalis at a 
given population site varies annually in response to the timing and 
amount of rainfall and temperature.
    Sufficient studies to reveal possible pollinators of Navarretia 
fossalis have not yet been conducted. Seeds of this plant are likely 
dispersed locally by the flow of water throughout the vernal pool or 
alkali wetlands in which this plant occurs. More distant dispersal is 
most likely accomplished by the spiney flower heads clinging to the fur 
of larger mammals or via mud containing seeds stuck to birds that visit 
these wetlands (pers. comm. with Ellen Bauder, Ph.D., San Diego State 
University).

Areas That Provide Basic Requirements for Growth, Such as Water, Light, 
and Minerals

    Navarretia fossalis requires areas that are ephemerally wet in the 
winter and spring months and dry in the summer and fall months. This 
type of ephemeral habitat does not allow either upland plants that live 
in a dry environment year round or wetland plants that require year 
round moisture to become established (Keeler-Wolf et al. 1998). These 
habitats then allow for specialized plants, such as the N. fossalis, to 
benefit from the exclusion of strictly upland and wetland plants.

Habitats That Are Representative of the Historic Geographical and 
Ecological Distribution of the Species

    The distribution of Navarretia fossalis ranges from northwestern 
Los Angeles County and western Riverside County, south through coastal 
San Diego County, California to northwestern Baja California, Mexico 
(Day 1993; Munz 1974; Reiser 2001, CNPS 2001; CNDDB 2003). Fewer than 
30 populations exist in the United States, with nearly 60 percent of 
these populations concentrated in three locations: Otay Mesa in 
southern San Diego County, along the San Jacinto River in western 
Riverside County, and near Hemet in Riverside County (63 FR 54975). In 
Mexico, N. fossalis is known from fewer than 10 populations clustered 
in three areas: along the international border, on the plateaus south 
of the Rio Guadalupe, and on the San Quintin coastal plain (Moran 
1977).

Primary Constituent Elements for Navarretia fossalis

    Based on our current knowledge of the life history, biology, and 
ecology of the species, and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that primary constituent elements for Navarretia fossalis are:
    (1) Vernal pool, alkali playa, or alkali sink habitats, at 
elevations between sea level and 4,250 ft (1,300 m) found on flat to 
gently sloping terrain;
    (2) Soils with a clay component or an impermeable surface or 
subsurface layer known to support vernal pool habitat including, but 
not limited to Cieneba-Pismo-Caperton in Los Angeles County, Domino, 
Traver, and Willows in Riverside County and Huerhuero, Placentia, 
Olivenhain, Stockpen, and Redding in San Diego. Clay soils serve to 
inhibit rapid infiltration of rainwater. These soils also act as a 
buffer to moderate the water chemistry and rate of loss of water to 
evaporation. Clay soils of this nature are known to support vernal 
pool, alkali playa, and alkali sink habitats; and,
    (3) Associated hydrology that provides water to fill the pools in 
the winter and spring months. A pool with functional hydrology includes 
a combination of surface and underground water flow, native upland 
vegetation, and intact soil substrate. An inundated phase occurring in 
the winter and spring months followed by a dry phase in the summer and 
fall months is necessary to maintain these specialized habitats.

Criteria Used To Identify Habitat Areas With Essential Features

    We have determined that approximately 22,804 ac (9,228 ha) of land 
in Los Angeles, Riverside, and San Diego counties contain the physical 
and biological features that are essential to the conservation of the 
species. Of this, 21,458 ac (8,684 ha) of land with essential features 
for the conservation of Navarretia fossalis Riverside and San Diego 
counties are exempt, pursuant to section 4(a)(3) of the Act, or have 
been excluded pursuant to section 4(b)(2) of the Act. Section 
10(a)(1)(B) of the Act authorizes us to issue permits for the take of 
listed animal species incidental to otherwise lawful activities. An 
incidental take permit application must be supported by an HCP that 
identifies conservation measures that the permittee agrees to implement 
for the species to minimize and mitigate the impacts of the requested 
incidental take. We encourage HCP applicants to also incorporate 
measures to provide for the conservation of listed plant species. We 
often exclude from designated critical habitat non-Federal public lands 
and private lands that are covered by an existing operative HCP that 
provides for the conservation needs of the species for which critical 
habitat is being designated because we determine that the benefits of 
exclusion outweigh the benefits of inclusion as provided in section 
4(b)(2) of the Act. The areas exempt under section 4(a)(3) of the Act 
include the following: (1) Lands on Marine Corps Air Station Miramar 
(MCAS, Miramar); (2) lands on Marine Corps Base, Camp Pendleton (Camp 
Pendleton). The areas excluded under section 4(b)(2) of the Act include 
the following: (1) Areas within the City of San Diego Subarea Plan and 
County of San Diego Subarea Plan of the San Diego Multiple Species 
Conservation Program (MSCP); (2) areas within the approved Carlsbad 
subarea plan/habitat management plan for the Northwestern San Diego 
Multiple Habitat Conservation Plan (MHCP); and, (3)

[[Page 60669]]

areas within the approved Western Riverside Multiple Species Habitat 
Conservation Plan (MSHCP).
    The following criteria were used to map the areas with essential 
features for the conservation of Navarretia fossalis: (1) Vernal pools 
and alkali wetlands including grassland, playa, and sink habitats known 
to be occupied by N. fossalis; (2) localities considered essential to 
the conservation of the species; (3) areas of suitable topography and 
intact clay soil substrate, such as Cieneba-Pismo-Caperton in Los 
Angeles County, Domino, Traver, and Willows in Riverside County and 
Huerhuero, Placentia, Olivenhain, Stockpen, and Redding in San Diego, 
with minimal disturbance; and, (4) local watersheds associated with 
occupied vernal pools and alkali wetlands necessary to maintain the 
hydrologic regime required to support the species.
    We are designating critical habitat on lands that we have 
determined are occupied at the time of listing and contain the primary 
constituent elements and those additional areas found to be essential 
to the conservation of Navarretia fossalis.
    When determining critical habitat boundaries, we made every effort 
to avoid designating developed areas such as buildings, paved areas, 
boat ramps, and other structures that lack PCEs for Navarretia 
fossalis. Any such structures inadvertently left inside critical 
habitat boundaries are not considered part of the designated critical 
habitat unit. This also applies to the land on which such structures 
sit directly. Therefore, Federal actions limited to these areas would 
not trigger section 7 consultations, unless they affect the species 
and/or PCEs in adjacent critical habitat.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our supporting record for this rulemaking and in the 
proposed critical habitat designation (69 FR 60110).

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the physical 
and biological features determined to be essential for conservation of 
the species may require special management considerations or 
protection. All of the units designated as critical habitat contain the 
physical and biological features which may require special management 
considerations or protection. Navarretia fossalis is threatened by 
habitat destruction and fragmentation from urban and agricultural 
development, pipeline construction, off-road vehicle activity, 
trampling by cattle and sheep, weed abatement, fire suppression 
practices (including discing and plowing to remove weeds and create 
fire breaks), alteration of hydrology and floodplain dynamics 
(including excessive flooding and channelization), and competition from 
alien plant species (63 FR 54975). Habitat destruction and loss is the 
greatest threat to this species (CNDDB 2004), followed by disruption of 
natural hydrologic regimes that support populations of N. fossalis. 
Projects that occur adjacent to vernal pools, or within the watershed 
of designated critical habitat, may alter the hydrology of the vernal 
pools and make conditions unsuitable for the growth and reproduction of 
N. fossalis. In some locations encroachment and competition by non-
native plants for space, water, and nutrients can displace N. fossalis. 
Management of non-native weeds is necessary to maintain existing 
population of N. fossalis (Bramlet 1996).
    Some of these special management considerations such as the 
presence of exotic species affect the success of Navarretia fossalis 
throughout its range, other threats impact N. fossalis on a unit-by-
unit basis. For example, Unit 1A and 1B at Cruzan Mesa is occasionally 
used as for filming movies (pers. comm. Daryl Koutnik, Ph.D., 
Supervising Regional Planner, County of Los Angeles). Movie production 
may impact the vernal pool basins by compaction, or displace standing 
plants while N. fossalis is setting seed and flowering, or may 
inadvertently introduce fill material into vernal pools, thus altering 
the habitat.
    Unit 2 is protected by a conservation easement, but the physical 
and biological features remain in need of special management to address 
invasive non-native weeds that outcompete and displace Navarretia 
fossalis, changes to the local hydrology as the surrounding watershed 
becomes urbanized, and unauthorized trespass that tramples plants and 
compacts vernal pools. Brassica negra (black mustard) and Lythrum 
hyssopifolia (hyssop loosestrife) are the major exotic species that 
require control in this unit and these non-native weeds can displace 
and outcompete N. fossalis. The watershed for this unit is nearly 
completely urbanized and special management considerations are needed 
to address the quality and quantity of the run-off into this unit.
    In San Diego County the invasion of exotic grasses is of concern in 
Unit 4 and Unit 5 because these non-native weeds can outcompete 
Navarretia fossalis for space, water, and nutrients. Lolium multiflorum 
(annual or italian ryegrass) poses the greatest management concern 
because it can withstand period of inundation, produces large 
quantities of seed and forms a thick thatch as is dies each year.

Critical Habitat Designation

    We are designating approximately 652 ac (264 ha) of critical 
habitat for Navarretia fossalis in Los Angeles and San Diego Counties, 
California (see Table 1). Areas designated as critical habitat are 
under Federal, State, local, and private ownership. The approximate 
area of designated critical habitat by county and land ownership is 
shown in Table 2. Certain lands in Riverside and San Diego counties 
considered essential to N. fossalis have not been included or have been 
excluded from critical habitat based on our 4(a)(3) and 4(b)(2) 
analyses; these are summarized in Table 3.

Table 2.--Approximate Critical Habitat Area (Acres (ac); Hectares (ha)) for Navarretia fossalis in California by
       County and Land Ownership. Estimates Reflect the Total Area Within Critical Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
                                         Federal  (San Diego
                County                    National Wildlife             Private                   Total
                                               Refuge)
----------------------------------------------------------------------------------------------------------------
Los Angeles..........................  0 ac...................  326 ac.................  326 ac.
                                       (0 ha).................  (132 ha)...............  (132 ha).
Riverside............................  0 ac...................  0 ac...................  0 ac.
                                       (0 ha).................  (0 ha).................  (0 ha).

[[Page 60670]]

 
San Diego............................  42 ac..................  284 ac.................  326 ac.
                                       (17 ha)................  (72 ha)................  (88 ha).
                                      --------------------------
    Total............................  42 ac..................  610 ac.................  652 ac.
                                       (17 ha)................  (ha)...................  (264 ha).
----------------------------------------------------------------------------------------------------------------
* Federal lands include Department of Defense and other Federal land.
** Not Applicable because all lands in Riverside County that are essential for Navarretia fossalis are excluded
  under 4(b)(2) of the Act.


Table 3.--Approximate Areas With Essential Features for the Conservation
 of Navarretia fossalis, Excluded Areas With Essential Features for the
 Conservation of Navarretia fossalis, and Critical Habitat (Acres (ac);
  Hectares (ha)) for Navarretia fossalis in Los Angeles, San Diego, and
                     Riverside Counties, California.
            [Note: Table currently being revised in Carlsbad]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total areas with essential features for the      17,908 ac.
 conservation of Navarretia fossalis.            (7,247 ha).
Areas with essential features for the            128 ac.
 conservation of Navarretia fossalis exempted    (52 ha).
 from critical habitat pursuant to section
 4(a)(3) of the Act due to an INRMP that
 benefits Navarretia fossalis (Marine Corps Air
 Station (MCAS), Miramar and Marine Corps Base
 (MCB), Camp Pendleton).
Areas with essential features for the            18,619 ac.
 conservation of Navarretia fossalis excluded    (7,535 ha).
 from critical habitat pursuant to section
 4(b)(2) of the Act: Completed HCPs (San Diego
 Multiple Species Conservation Program (MSCP),
 Northwestern San Diego Multiple Habitat
 Conservation Plan (MHCP) and Western Riverside
 County Multiple Species Habitat Conservation
 Plan (MSHCP)), Areas subject to completed
 conservation agreements.
                                                ------------------------
Total areas with essential features for the      18,747 ac.
 conservation of Navarretia fossalis exempted    (7,586 ha).
 or excluded from critical habitat.
                                                ========================
        Total critical habitat.................  652 ac.
                                                 (264 ha).
------------------------------------------------------------------------

    Lands designated as critical habitat are divided into four units 
(Units 1 through 5). No lands within Unit 3 were designated as critical 
habitat because Navarretia fossalis is no longer present. Units 1, 4, 
and 5 were further divided into subunits (1A, 1B, 4C1 and 4C2, 4D, 4E, 
5A, 5B, 5C) based on their geographical location. Subunits 4A and 4B 
have been dropped because these areas no longer support N. fossalis. 
Unit boundaries were delineated based on geographical location of 
vernal pools, soil types, associated watersheds, and local variation of 
topographic position (i.e., coastal mesas, inland valley). Descriptions 
of each unit and the reasons for designating lands within each unit as 
critical habitat are presented below. We designated critical habitat on 
the specific areas within the geographical area occupied by the species 
at the time of listing on which are found those physical or biological 
features essential to the conservation of the species and which may 
require special management considerations. We are also designating 
critical habitat on specific areas outside the geographic area occupied 
by N. fossalis at the time of listing upon a determination by the 
Secretary of the Interior that such areas are essential for the 
conservation of N. fossalis. In addition, all of the areas designated 
as critical habitat contain one or more primary constituent elements 
(e.g., soil, hydrology).

Unit 1 (Subunits 1A, 1B): Transverse Range Critical Habitat Unit, Los 
Angeles County, California (326 ac (132 ha)).

    The occurrences of Navarretia fossalis in northern Los Angeles 
County represent isolated occurrences at the northern most extent of 
the range of the species. Conservation biologists have demonstrated 
that populations at the edge of a species' distribution can be 
important sources of genetic variation and represent the best 
opportunity for colonization or re-colonization (Gilpin and 
Soul[eacute] 1986; Lande 1999). Although the populations of N. fossalis 
in Los Angeles County are far removed from other known locations, these 
pools are possible sources of unique genetic information that will aid 
this highly restricted species in its ability to adapt to future 
changes in the environment (e.g. stochastic events such as droughts or 
temperature shifts). Such characteristics may not be present in other 
parts of the species' range (Lesica and Allendorf 1995). For these 
reasons the unit is essential to the conservation of the species.
    The Transverse Range Critical Habitat Unit occurs within the 
Transverse Management Area as identified in the Recovery Plan, and 
includes vernal pools occupied with Navarretia fossalis at Cruzan Mesa 
and Plum Canyon in Los Angeles County (Service 1998). Vernal pools at 
both sites are currently on lands under private ownership. These pools 
are the last remaining vernal pools in Los Angeles County. The area 
designated as critical habitat in Unit 1 contains the primary 
constituent elements: vernal pools within the appropriate elevations 
and topography (PCE 1), soils that are impermeable and pond 
water (PCE 2), and hydrology to support Navarretia fossalis. 
The City of Los Angeles has identified this area as Significant 
Ecological Area and has recommended its inclusion in the updated 
version of the Los Angeles General Plan, a plan which guides 
development with zoning regulations.

[[Page 60671]]

However, these pools have not yet been included in the Los Angeles 
General Plan. In addition, the Service is in preliminary discussions 
with the landowner to establish a conservation bank for Cruzan Mesa. We 
understand that the landowner recognizes the biological value of the 
vernal pool and surrounding lands and recognizes that a conservation 
bank would benefit the species associated with the vernal pools (i.e. 
Navarretia fossalis) and provide a mechanism to fund habitat 
restoration (Service pers. comm. 2005). We also received comments from 
the Los Angeles County Department of Regional Planning that indicated 
that the landowner is requesting credit for transferring housing 
density to another portion of their property to conserve the vernal 
pool habitats (Los Angeles County 2005). Lands within this critical 
habitat unit may require special management to address threats to the 
vernal pools (PCE 1) and the hydrology (PCE 3) from 
current and future uses around the vernal pools that include habitat 
alteration resulting from movie production and potential residential 
and commercial development.

Unit 2: San Diego North Coastal Mesas Critical Habitat Unit, San Diego 
County, California (22 ac (9 ha)).

    The San Diego North Coastal Mesas Critical Habitat Unit occurs 
within the boundaries of the City of Carlsbad. One occupied vernal pool 
complex is located along the railroad tracks at the Poinsettia Lane 
train station. This complex is associated with a remnant of coastal 
terrace habitat and is one of the only vernal pools in San Diego County 
with alkaline soil properties. This vernal pool complex is one of the 
last remaining coastal occurrences of Navarretia fossalis outside the 
boundaries of MCB Camp Pendleton.
    This population of Navarretia fossalis occurs in vernal pools that 
are within the boundaries of the City of Carlsbad HMP and on lands that 
are owned by the North County Transit District (and not a signatory 
agency to the Carlsbad HMP). We designate 22 acres (9 ha) of critical 
habitat on lands only within the North County Transit District. The 
area being designated as critical habitat contains the primary 
constituent elements described above relating to the pooling basins, 
watersheds, underlying soil substrate, and topography (PCE 1-3). Lands 
within this critical habitat unit may require a long-term management 
plan to manage herbivores, control exotic weeds, and assess changes in 
water quality and quantity associated with the nearby urban areas.
    We excluded 3.5 acres (1.4 ha) of vernal pools and buffer as 
critical habitat that are within the City of Carlsbad HMP under section 
4(b)(2) of the Act. The avoidance, minimization, and/or mitigation 
measures and the adaptive management of lands within the Preserve that 
are included in the MHCP Subregional Plan and the City of Carlsbad 
Subarea Plan will reduce any impacts that may occur to Navarretia 
fossalis. Moreover, the 3.5 acres (1.4 ha) are within the open space 
lot 227 of the Waters End housing project. John Laing Homes, developer 
of the Waters End housing project, agreed to (1) provide maintenance 
and management for three years, (2) the Waters Edge Homeowners 
Association will assume responsibility for maintenance of the area 
after the three year period until the City of Carlsbad selects a 
management entity, (3) provide an irrevocable offer of dedication for a 
conservation easement to the City of Carlsbad, and (4) provide $100,000 
for a maintenance endowment for open space lot 227 (John Laing Homes 
2004).
    The remaining 117.5 ac (48 ha) of land identified as containing the 
physical and biological features in the proposed rule have been 
developed and no longer contribute to the hydrology of the vernal pools 
that support Navarretia fossalis. These lands were not known to be 
occupied by N. fossalis at the time of proposed rule. These 117.5 ac 
(48 ha) do not contain the physical and biological features essential 
to the conservation of N. fossalis and are not designated as critical 
habitat.

Unit 3: San Diego Central Coastal Mesas Critical Habitat Unit, San 
Diego County, California

    We proposed critical habitat for Navarretia fossalis in Unit 3 (72 
ac) (29 ha). We have re-examined the records and available information 
and now conclude that the vernal pools and watersheds within Unit 3 do 
not currently support N. fossalis. We removed approximate 72 ac (29 ha) 
because the known occurrences have been lost to and degraded by 
residential development and the physical and biological features 
essential to the conservation of N. fossalis are no longer present. 
Thus, no critical habitat for N. fossalis is designated within Unit 3.

Unit 4 (Subunits 4C, 4D & 4E): San Diego Inland Valleys Critical 
Habitat Unit, San Diego County, California (160 ac (65 ha)).

    The San Diego Inland Valleys Critical Habitat Unit occurs within 
the San Diego Inland Valleys Management Area as identified in the 
Recovery Plan (Service 1998). The three subunits designated as critical 
habitat for Navarretia fossalis contain occupied vernal pool complexes 
within the City of San Marcos and the community of Ramona. These vernal 
pool complexes are isolated from maritime influence and are 
representative of vernal pools associated with alluvial or volcanic 
type soils (Keeler-Wolf et al. 1998; Service 1998). These vernal pools 
in San Marcos and Ramona are essential for the conservation of N. 
fossalis because of their role in stabilizing populations and 
preventing habitat loss. Additionally, this unit includes vernal pools 
within the easternmost edge of the geographical distribution of the 
species. Therefore, conservation of pools at this location will help 
maintain the diversity of vernal pool habitats and their unique 
geological substrates, and retain the genetic diversity of these 
geographically distinct populations. The areas being designated as 
critical habitat in Unit 4 contain the primary constituent elements 
described above relating to the pooling basins, watersheds, underling 
soil substrate and topography (PCE numbers 1-3). Special management may 
be required for all sub-units of this critical habitat unit. The vernal 
pools in San Marcos are on properties that are surrounded by 
urbanization. Management of these vernal pools is needed to prevent 
damage from uncontrolled access to the sites.
    We designate 73 ac (30 ha) of critical habitat within the City of 
San Marcos on Subunits 4C1 (34 ac) (14 ha) and 4C2 (32 ac) (13 ha) and 
Subunit 4D (7 ac) (3 ha). To avoid including developed areas (i.e., 
those areas do not include the physical and biological features 
essential to the conservation of the species), we divided Subunit 4C by 
Linda Vista Drive (Subunit 4C1 is north of Linda Vista Drive and 
Subunit 4C2 is south of Linda Vista Drive) in the final rule. The 
vernal pools in San Marcos are associated with native grassland and a 
unique association of multiple species of Brodiaea (San Diego 
Biodiversity Project 1991). These vernal pools were occupied Navarretia 
fossalis at the time of listing based on available records, but these 
populations were not specifically identified in the final listing rule. 
Subunit 4D was conserved as part of the Bent Avenue Project (Service 
2000). The southeastern boundary of Subunit 4D has been revised in the 
final rule to not include areas that have been developed (i.e., those 
areas do not include the physical and biological features essential to 
the conservation of the species).
    We designate 87 ac (35 ha) of critical habitat within the Ramona 
grasslands in

[[Page 60672]]

Santa Maria Valley (Subunit 4E). The designated critical habitat is on 
County of San Diego and private lands that are south and southeast of 
Ramona Airport. These vernal pools were occupied Navarretia fossalis at 
the time of listing and are part of a complex of vernal pools that 
support the San Diego fairy shrimp and other rare vernal pool species. 
Surveys conducted in 2004 also document the presence of N. fossalis 
within the Ramona grasslands. A portion of these lands are protected as 
a result of improvements made to the Ramona Airport (Service 2001). The 
Ramona grasslands, including the designated critical habitat, is 
identified for acquisition and management under the California 
Department of Fish and Game's Ramona Grasslands Wildlife Area 
Conceptual Area Protection Plan (CDFG 2002) and the County of San Diego 
and The Nature Conservancy under the Framework Management and 
Monitoring Plan, Ramona Grasslands Open Space Preserve (The Nature 
Conservancy 2004).
    We proposed critical habitat for Navarretia fossalis within vernal 
pools in downtown Ramona (531 ac) (215 ha) and in other areas of the 
Ramona Grasslands (2,335 ac) (945 ha) (the remaining portions of 
Subunit 4E). We have re-examined the records and available information 
and now conclude that the vernal pool areas within downtown Ramona and 
in the other areas of the Ramona Grassland do not currently support N. 
fossalis. The three occurrences of N. fossalis known at the time of 
listing (1983-1998) in downtown Ramona have been lost to urban 
development. No other current occurrence records of N. fossalis within 
downtown Ramona are available. While this species may persist in the 
seed bank, we are unable to confirm the presence of this species in 
downtown Ramona and in other areas of the Ramona Grasslands. Thus, no 
critical habitat for N. fossalis is designated within downtown Ramona 
and in other areas of the Ramona Grasslands because (1) none of the 
historical occurrences are believed to be extant, (2) there is no 
current information that N. fossalis occurs within downtown Ramona or 
in the other areas of the Ramona Grasslands, and (3) there is no 
information that these vernal pool areas contain the physical and 
biological features essential to the conservation of N. fossalis. We 
encourage landowners, planning boards, school districts, and local 
jurisdictions to understand that not designating critical habitat for 
N. fossalis within downtown Ramona and in other areas of the Ramona 
Grasslands does not mean that these vernal pools are not important for 
conservation. We recognize that the County of San Diego is preparing a 
subarea plan for northern San Diego County under the San Diego MSCP 
that will address the conservation of vernal pools in downtown Ramona 
and in other areas of the Ramona Grasslands. There are several vernal 
pool sites within downtown Ramona that would be valuable for 
conservation and included in a preserve system.
    We proposed critical habitat for Navarretia fossalis within vernal 
pools in Subunit 4A (10 ac) (4 ha) and Subunit 4B (42 ac) (17 ha). We 
have re-examined the records and available information and now conclude 
that the vernal pool areas within Subunit 4A and Subunit 4B do not 
currently support N. fossalis. Thus, no critical habitat for N. 
fossalis is designated within Subunit 4A and Subunit 4B because (1) 
there is no current information that N. fossalis occurs within Subunit 
4A and Subunit 4B and (2) there is no information that these vernal 
pool areas contain the physical and biological features essential to 
the conservation of N. fossalis.

Unit 5 (Subunits 5A, 5B & 5C): San Diego Southern Coastal Mesas 
Critical Habitat Unit, San Diego County, California (181 ac (73 ha)).

    The San Diego Southern Coastal Mesas Critical Habitat Unit occurs 
within the Southern Coastal Mesas Management Area as identified in the 
Recovery Plan (Service 1998). The geographic location contains several 
vernal pools and other physical features essential to the conservation 
of Navarretia fossalis. The majority of the land in this unit provides 
the essential watershed primary constituent element that contributes to 
the pooling basins that support N. fossalis. The areas being proposed 
as critical habitat in Unit 5 contain the primary constituent elements 
described above relating to the pooling basins, watersheds, underling 
soil substrate and topography (PCE numbers 1-3).
    Subunit 5A is located to the south of the Sweetwater Reservoir on 
lands owned by the Sweetwater Authority (47 ac) (19 ha) and the San 
Diego Wildlife Refuge (42 ac) (17 ha). The Service is currently in the 
process of developing a restoration plan for the Refuge lands. 
Sweetwater Authority, along with Padre Dam Municipal Water District, 
Santa Fe Irrigation District, and Helix Water District, are preparing 
an HCP/Natural Communities Conservation Plan for their lands. In the 
draft plan, Navarretia fossalis is identified as a covered species and 
found on Sweetwater Authority lands. Vernal pools in this subunit of 
critical habitat have been negatively impacted by dense stands of 
Lolium multiflorum (annual or italian ryegrass). Units 5B and 5C are 
located on the eastern portion of Otay Mesa. Vernal pool complexes on 
the eastern half of Otay Mesa have been less impacted than the vernal 
pool complexes on the western half of Otay Mesa. The western half of 
Otay Mesa has much more light industrial and residential development 
that the eastern half of the Mesa and more impacts from off-road 
vehicles. The vernal pool complexes in these units may require special 
management such as invasive species control regulation of off-road 
vehicles.
    In the proposed rule, we excluded critical habitat from a portion 
of Subunit 5A under section 4(b)(2) of the Act because we believed that 
the lands were within the San Diego MSCP. We have reviewed the 
available information and now recognize that these excluded lands were 
not within the San Diego MSCP. Instead, these excluded lands are owned 
by the Sweetwater Authority and the water district is not a signatory 
agency to the San Diego MSCP. We are not designating these lands as 
critical habitat because we did not notify the Sweetwater Authority of 
this oversight and to include these lands would be a violation of the 
Administrative Procedures Act.
    We proposed critical habitat for Navarretia fossalis in Subunit 5D 
(150 ac) (61 ha). We have re-examined the records and available 
information and now conclude that the vernal pools and watersheds 
within Subunit 5D do not currently support N. fossalis. These lands 
were not known to be occupied by N. fossalis at the time of proposed 
rule. Thus, no critical habitat for N. fossalis is designated within 
Subunit 5D because (1) There is no current or historical information 
that N. fossalis occurs within Subunit 5D; (2) there is no information 
that these vernal pool areas contain the physical and biological 
features essential to the conservation of N. fossalis; (3) a portion of 
land identified as containing the physical and biological features 
essential to the conservation of N. fossalis in the proposed rule has 
been developed for the Border Infrastructure System and no longer 
contribute to the hydrology of the vernal pools; and (4) the vernal 
pool restoration work being conducted at Arnie's Point is for the San 
Diego fairy shrimp (Branchinecta sandiegonensis) and Riverside fairy 
shrimp (Streptocephalus woottoni) and not to offset any losses to N. 
fossalis.

[[Page 60673]]

    In the proposed rule, we identified three vernal pool areas within 
the City of Chula Vista Multiple Species Conservation Program Subarea 
Plan (Chula Vista Subarea Plan) that we believed contained the physical 
and biological features essential to the conservation of Navarretia 
fossalis. We have re-examined the records and available information and 
now conclude that these three vernal pool areas do not support N. 
fossalis. Two of these areas were based on observations made in 1979. 
One of these vernal pool areas (identified as M-2) was destroyed by 
agriculture and the second area (identified as K-2) was comprised of a 
single disturbed vernal pool with intact mima mounds (RECON 1989). The 
third vernal pool area (identified as K-1) did not support N. fossalis 
(RECON 1989). Biological analyses for the Otay Ranch development and 
the Chula Vista Subarea Plan have not reported the presence of this 
species (RECON 1991, City of Chula Vista 2002, and Service 2003). We 
stated that this species is not known to occur within the Chula Vista 
subarea (the area within the action area where impacts are expected to 
occur) at the time of our analysis for the biological opinion for the 
issuance of the section 10(a)(1)(B) permit for this plan (Service 
2003). Our biological opinion concluded that the issuance of the 
section 10(a)(1)(B) permit is not likely to jeopardize the continued 
existence of N. fossalis. Thus, no critical habitat for N. fossalis is 
designated within the Chula Vista subarea because (1) none of the 
historical occurrences are believed to be extant, (2) there is no 
current information that N. fossalis occurs within the Chula Vista 
subarea, and (3) there is no information that these vernal pool areas 
contain the physical and biological features essential to the 
conservation of N. fossalis. Moreover, the Chula Vista Subarea Plan 
will require pre-project surveys to determine if significant biological 
resources occur within a given project site. If this species occurs 
within the Chula Vista subarea, direct impacts may occur to this 
species, but would be limited because of the avoidance, minimization, 
and/or mitigation measures and by the system of large, interconnected 
blocks of habitat that will be established and preserved in perpetuity 
that are included in this subarea plan.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.2, 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.'' The Service uses the guidance issued in the Director's 
December 9, 2004, memorandum when making adverse modification 
determinations under section 7 of the Act.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. We may issue a formal conference 
report if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain an opinion that is prepared according 
to 50 CFR 402.14, as if critical habitat were designated. We may adopt 
the formal conference report as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). Until such time as a proposed designation is finalized, any 
reasonable and prudent alternatives or reasonable or prudent measures 
included in a conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that its actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect Navarretia fossalis 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 Army Corps under section 404 of the Clean Water 
Act, a section 10(a)(1)(B) permit from the Service, or some other 
Federal action, including funding (e.g., Federal Highway Administration 
or Federal Emergency Management Agency funding), will also continue to 
be subject to the section 7 consultation process. Federal actions not 
affecting listed species or critical habitat and actions on non-Federal 
and private lands that are not federally funded, authorized, or 
permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that

[[Page 60674]]

may destroy or adversely modify such habitat, or that may be affected 
by such designation. Activities that may destroy or adversely modify 
critical habitat may also jeopardize the continued existence of 
Navarretia fossalis. Federal activities that, when carried out, may 
adversely affect critical habitat for N. fossalis include, but are not 
limited to:
    (1) Actions that would permanently alter the function of the 
underlying claypan or hardpan soil layer to hold and retain water. This 
would affect the duration and extent of inundation, water temperature 
and chemistry, and other vernal pool features beyond the tolerances of 
Navarretia fossalis. Damage or alternation of the claypan or hardpan 
soil layer would eliminate the function of this PCE for providing space 
for individual and population growth and for normal behavior; water and 
physiological requirements; and sites for breeding, reproduction and 
rearing of offspring. Actions that could permanently alter the function 
of the underlying claypan or hardpan soil layer include, but are not 
limited to, grading or earthmoving work that disrupts or rips into the 
claypan or hardpan soil layer; or and channelizing, mining, dredging, 
or drilling into the claypan or hardpan soil layer; and,
    (2) Actions that would permanently reduce the depth of a vernal 
pool, and the ability of a vernal pool to pond with water, the duration 
and extent of inundation, water temperature and chemistry, and other 
vernal pool features beyond the tolerances of the Navarretia fossalis. 
Reducing the depth of the vernal pool would eliminate the function of 
this PCE for providing space for normal behavior and for individual and 
population growth, water and physiological requirements, sites for 
breeding, reproduction, and reduce the time available for growth and 
reproduction as it would accelerate the pool's drying phase. Actions 
that could permanently reduce the depth of the vernal pool include, but 
are not limited to, discharge of dredged or fill material into vernal 
pools and erosion of sediments from fill material, disturbance of soil 
profile by grading, ditch digging in and around vernal pools, 
earthmoving work, OHV use, grazing, vegetation removal, or construction 
of roads, culverts, berms or any other impediment to natural sub-
surface or surface hydrological flow within the watershed for the 
vernal pools.
    We designated critical habitat on the specific areas within the 
geographical area occupied by the species at the time of listing on 
which are found those physical or biological features essential to the 
conservation of the species and which may require special management 
considerations. Specific areas within the geographic area occupied by 
the species at the time of listing include Unit 1 in northwestern Los 
Angeles County, Unit 2 in coastal San Diego County, Subunit 4E in 
Ramona, and Subunits 5B and 5C on Otay Mesa. We are also designating 
critical habitat on specific areas outside the geographic area occupied 
by N. fossalis at the time of listing upon a determination by the 
Secretary of the Interior that such areas are essential for the 
conservation of N. fossalis. We believe those subunits are essential 
for the conservation of N. fossalis because these populations are 
needed for recovery, to maintain the geographical distribution of the 
species, and unique soils. Specific areas outside the geographic area 
occupied by the species at the time of listing include Subunits 4C and 
4D in the City of San Marcos and Subunit 5A in San Diego were not 
specifically mentioned in the final listing rule for N. fossalis. 
Federal agencies have previously consulted with the Service for 
projects that may affect N. fossalis in the City of San Marcos.
Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of 
the Act
Application of Section 4(a)(3) of the Act--Approved and Completed 
INRMPs
    The Sikes Act Improvements Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
requires each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an INRMP by November 17, 2001. An INRMP combines 
implementation of the military mission of the installation with 
stewardship of its natural resources. Each INRMP includes an assessment 
of the ecological needs on the installation, including the need to 
provide for the conservation of listed species; a statement of goals 
and priorities; a detailed description of management actions to be 
implemented to provide for these ecological needs; and a monitoring and 
adaptive management plan. We consult with the Department of Defense on 
the development and implementation of INRMPs for installations with 
federally listed species.
    Section 318 of the National Defense Authorization Act for Fiscal 
Year 2004 (Pub. L. 108-136) amended the Act to address the relationship 
of INRMPs to critical habitat by adding a new section 4(a)(3)(B). This 
provision prohibits us from designating as critical habitat any lands 
or other geographical areas owned or controlled by the DOD, or 
designated for its use, that are subject to an INRMP prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary of the 
Interior determines in writing that such plan provides a benefit to the 
species for which critical habitat is proposed for designation.

Marine Corps Air Station Miramar (MCAS Miramar)

    MCAS Miramar completed a final INRMP in May 2000 that provides a 
benefit to Navarretia fossalis. MCAS Miramar has identified management 
areas with different resource conservation requirements and management 
concerns, and identifies them with five separate levels that correspond 
to their sensitivity. The majority of vernal pools and habitats that 
support vernal pool species, including N. fossalis, are located in 
``Level I Management Areas (MAs).'' Preventing damage to vernal pool 
resources is the highest conservation priority in MAs with the ``Level 
I'' designation. The conservation of vernal pools in this MA is 
achieved through education of base personnel, proactive measures to 
avoid accidental impacts, and maintenance of an updated inventory of 
vernal pool basins and the associated vernal pool watersheds.
    Since the completion of MCAS Miramar's INRMP, we have received 
reports on Miramar's vernal pool monitoring and restoration program and 
correspondence detailing the installation's expenditures on the 
objectives outlined in its INRMP. MCAS Miramar continues to monitor and 
manage its vernal pool resources, including a study on the effects of 
fire on vernal pool resources, vernal pool mapping and species surveys, 
and a study of Agrostis avenaceae (Pacific bentgrass), an invasive 
exotic grass found in some vernal pools on the base. We believe this 
INRMP benefits this species. MCAS Miramar contains the largest 
continuous block of vernal pools that remain in San Diego County 
(Bauder and McMillan, 1998). The vernal pool complexes occupied by 
Navarretia fossalis are mapped and regularly monitored for the presence 
of this species as well as other vernal pool species. The pools on MCAS 
Miramar which support N. fossalis are considered essential for the 
conservation of this species. The MCAS Miramar INRMP includes 
management strategies to conserve N. fossalis, a record of funding to 
implement those management strategies, and a monitoring program to 
ensure the effectiveness of the management strategies. Therefore, we 
find that the

[[Page 60675]]

INRMP for MCAS Miramar provides a benefit for N. fossalis and all lands 
on MCAS Miramar are exempt from critical habitat pursuant to section 
4(a)(3) of the Act.

Marine Corps Base Camp Pendleton (MCB Camp Pendleton)

    MCB Camp Pendleton completed their INRMP in November 2001, which 
includes the following conservation measures for vernal pool species 
including Navarretia fossalis: (1) Surveys and monitoring, studies, 
impact avoidance and minimization, and habitat restoration and 
enhancement; (2) species survey information stored in Camp Pendleton's 
GIS database and recorded in a resource atlas which is published and 
updated on a semi-annual basis; (3) use of the resource atlas to plan 
operations and projects to avoid impacts to N. fossalis and to trigger 
section 7 consultations if an action may affect the species. These 
measures are established, ongoing aspects of existing programs and/or 
Base directives (e.g., Range and Training Regulations) or measures that 
will be implemented when the current section 7 consultation for upland 
species (Uplands Consultation), including N. fossalis, is completed.
    Based on the past funding history by Camp Pendleton for listed 
species and their Sikes Act program (including the management of 
Navarretia fossalis), we believe there is a high degree of certainty 
that Camp Pendleton: (1) Will continue to have the necessary staffing, 
funding levels, funding sources, and other resources to implement their 
INRMP; (2) has the legal authority, legal procedural requirements, 
authorizations, and regulatory mechanisms to implement their INRMP and 
other conservation efforts; and (3) will implement the INRMP in 
coordination with CDFG and the Service. We also believe that there is a 
high degree of certainty that the conservation efforts of their INRMP 
will be effective. Service biologists work closely with Camp Pendleton 
on a variety of endangered and threatened species issues, including N. 
fossalis. The management programs and Base directives to avoid and 
minimize impacts to the species' are consistent with current and 
ongoing section 7 consultations with Camp Pendleton. Through our 
cooperative relationship with Camp Pendleton and the section 7 
consultation process, we can ensure that conservation efforts 
identified in the INRMP for N. fossalis will: (1) Address the nature 
and extent of threats; (2) provide for monitoring and reporting 
progress on implementation; and (3) incorporate the principles of 
adaptive management.
    We are also in the process of completing a section 7 consultation 
for upland species on Camp Pendleton. Vernal pools and associated 
species, including Navarretia fossalis, are addressed in the ``Uplands 
Consultation.'' When this consultation is completed, Camp Pendleton 
will incorporate the conservation measures from the biological opinion 
into their INRMP. At that time, Camp Pendleton's INRMP will further 
clarify benefits to N. fossalis. Therefore, we find that the INRMP for 
Camp Pendleton provides a benefit for N. fossalis and all lands on Camp 
Pendleton are exempt from critical habitat pursuant to section 4(a)(3) 
of the Act.

Relationship of Critical Habitat to Approved Habitat Conservation Plans 
(HCPs)--Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data available after taking into consideration the economic impact, 
impact on national security, and any other relevant impact, of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined that the benefits of 
such exclusion outweigh the benefits of specifying a particular area as 
critical habitat, unless the failure to designate such area as critical 
habitat will result in the extinction of the species. Consequently, we 
may exclude an area from critical habitat based on economic impacts, 
impacts on national security, or other relevant impacts such as 
preservation of conservation partnerships, if we determine the benefits 
of excluding an area from critical habitat outweigh the benefits of 
including the area in critical habitat, provided the action of 
excluding the area will not result in the extinction of the species.
    We are excluding critical habitat from approximately 21,384 ac 
(8,654 ha) of non-Federal lands within the (1) San Diego Multiple 
Species Conservation Program (MSCP): City of San Diego subarea plan and 
County of San Diego subarea plan; (2) Western Riverside MSHCP; and (3) 
Northwestern San Diego MHCP: City of Carlsbad Subarea Plan/Habitat 
Management Plan (HMP) under section 4(b)(2) of the Act. Navarretia 
fossalis is a covered species under all three of these plans. We 
completed our section 7 consultations on the issuance of the section 
10(a)(1)(B) permit for the City of San Diego subarea plan on June 6, 
1997; the County of San Diego subarea plan on March 12, 1988; the 
Western Riverside County MSHCP on June 22, 2004; and the City of 
Carlsbad HMP on November 9, 2004. The conference opinions for 
Navarretia fossalis for the City of San Diego subarea plan and County 
of San Diego subarea plan were both confirmed as biological opinions on 
December 21, 2000 (Service 2000). We confirmed that the implementation 
of the MSCP has not affected the continued existence of N. fossalis. 
These approved and legally operative HCPs provide special management 
and protection for the physical and biological features essential for 
the conservation N. fossalis that exceed the level of regulatory 
control that would be afforded this species by the designation of 
critical habitat. We have determined that the benefits of excluding 
critical habitat within these HCPs from the critical habitat 
designation will outweigh the benefits of including them as critical 
habitat and this exclusion will not result in the extinction of N. 
fossalis.
    Below we first provide general background information on each HCP, 
followed by an analysis pursuant to section 4(b)(2) of the Act of the 
benefits of including lands in all three HCPs within the critical 
habitat designation, an analysis of the benefits of excluding these HCP 
lands, and an analysis of why we believe the benefits of exclusion are 
greater than the benefits of inclusion. Finally, we provide a 
determination that exclusion of these HCP lands will not result in 
extinction of the Navarretia fossalis.

San Diego Multiple Species Conservation Program (MSCP): City of San 
Diego Subarea Plan and County of San Diego Subarea Plan

    We excluded 3,554 ac (8,654 ha) of non-Federal lands within 
portions of Units 3 and 5 as critical habitat that are in the San Diego 
MSCP under section 4(b)(2) of the Act. In southwestern San Diego 
County, the MSCP effort encompasses more than 236,000 ha (582,000 ac) 
and involves the participation of the County of San Diego, City of San 
Diego, and other cities and jurisdictions. This regional HCP is also a 
regional subarea plan under the NCCP program and was developed in 
cooperation with California Department of Fish and Game. The MSCP 
provides for the establishment of approximately 69,573 ha (171,000 ac) 
of preserve areas to provide conservation benefits for 85 federally 
listed and sensitive species over the life of the permit (50 years), 
including Navarretia fossalis. The San Diego MSCP and approved subarea

[[Page 60676]]

plans provide measures to conserve N. fossalis populations in 
southwestern San Diego County. Surveys for N. fossalis are required in 
suitable habitat (i.e., vernal pools, ephemeral wetlands, and 
seasonally ponded areas). These lands are to be permanently maintained 
and managed for the benefit of N. fossalis and other covered species.
    Within the City of San Diego subarea plan, approximately 63 percent 
of the one major population within the MSCP and five of the thirteen 
mapped points will be included in the Multiple Habitat Preserve 
Alternative (MHPA) (Service 1997). Within the MHPA, the City of San 
Diego will avoid impacts to this species to the maximum extent 
practicable. Outside the boundaries of the MHPA, the City of San Diego 
will require additional protection measures such as management, 
enhancement, restoration, and/or transplantation into the preserves 
(Service 1997). In our biological opinion for the issuance of a section 
10(a)(1)(B) permit for the City of San Diego's MSCP subarea plan, the 
Service concluded that the proposed permit issuance would not 
appreciably reduce the likelihood of the survival and recovery of 
Navarretia fossalis because (1) The plan would provide for avoidance of 
impacts to wetlands to the maximum extent practicable both inside and 
outside the MHPA; (2) State, Federal, and local regulations will 
provide habitat protection resulting in no net loss of wetland acreage, 
value, and function for this species; (3) impact avoidance and 
additional measures will be provided for Navarretia fossalis as 
required under the MSCP Plan for narrow endemics; and (4) preserve 
management will include measures to protect against detrimental edge 
effects, maintain surrounding habitat for pollinators, and maintain 
watershed areas (Service 1997). The City of San Diego recently 
completed an inventory of vernal pools that identified ten vernal pool 
complexes that contain Navarretia fossalis (City of San Diego 2004). 
During the 2004-2005 field season, another two locations were found to 
contain N. fossalis. Of these twelve known locations that support 
Navarretia fossalis, ten are currently conserved or will be conserved 
in the future. Only two vernal pool complexes that contain N. fossalis, 
the vernal pool complexes known as J13 and J14, are not currently 
conserved. Thus, the City of San Diego subarea plan provides 
significant conservation and management measures for Navarretia 
fossalis.
    Within the County of San Diego subarea plan, Navarretia fossalis 
qualifies as a Group A species as defined in the Biological Mitigation 
Ordinance (BMO) (i.e. plants that are rare, threatened, or endangered 
in California or elsewhere) (Service 1998). The BMO would require 80 to 
100 percent preservation of any newly discovered populations on 
Category 3 lands (i.e. lands for which preserve and development 
boundaries have not been delineated, but which will be subject to the 
terms of the County of San Diego's BMO in order to receive take 
authorization) (Service 1998). Area specific management directives must 
include measures to protect against detrimental edge effects and 
conserve and maintain surrounding habitat for pollinators and as part 
of the hydrological system for vernal pools (Service 1998). In our 
biological opinion for the issuance of a section 10(a)(1)(B) permit for 
the County of San Diego's MSCP subarea plan, the Service concluded that 
the proposed permit issuance would not appreciably reduce the 
likelihood of the survival and recovery of Navarretia fossalis because 
(1) this plant is restricted to wetland habitats and the plan will 
provide for avoidance of impacts to wetlands to the maximum extent 
practicable; (2) State, Federal, and local regulations will provide 
habitat protection resulting in no net loss of wetland function and 
value for this species; (3) impact avoidance and additional measures 
will be provided to this species as required under the County Subarea 
Plan and the BMO for narrow endemic and Group A species on Category 3 
lands; and (4) preserve management will include measures to protect 
against detrimental edge effects, maintain surrounding habitat for 
pollinators, and maintain watershed areas (Service 1998).

Northwestern San Diego Multiple Habitat Conservation Program (MHCP): 
City of Carlsbad Subarea Plan/Habitat Management Plan

    We excluded 3.5 ac (1.4 ha) of non-Federal lands within the City of 
Carlsbad Subarea Plan/Habitat Management Plan (HMP) under section 
4(b)(2) of the Act. The City of Carlsbad HMP is a subarea plan under 
the Multiple Habitat Conservation Program (MHCP) in northwestern San 
Diego County. The MHCP includes an approximately 112,000 ac (45,324 ha) 
study area within the cities of Carlsbad, Encinitas, Escondido, San 
Marcos, Oceanside, Vista, and Solana Beach. The City of Carlsbad is the 
first city of these seven cities to complete a subarea plan and 
therefore the only city with conditional coverage for Navarretia 
fossalis.
    This population of Navarretia fossalis occurs in vernal pools that 
are within the boundaries of the City of Carlsbad HMP and on lands that 
are owned by the North County Transit District (and not a signatory 
agency to the Carlsbad HMP). Only those 3.5 acres (1.4 ha) of vernal 
pools and buffer that are within the City of Carlsbad HMP are excluded 
as critical habitat. Moreover, the 3.5 acres (1.4 ha) are within the 
open space lot 227 of the Waters End housing project. John Laing Homes, 
developer of the Waters End housing project, agreed to (1) provide 
maintenance and management for three years, (2) the Waters Edge 
Homeowners Association will assume responsibility for maintenance of 
the area after the three year period until the City of Carlsbad selects 
a management entity, (3) provide an irrevocable offer of dedication for 
a conservation easement to the City of Carlsbad, and (4) provide 
$100,000 for a maintenance endowment for open space lot 227 (John Laing 
Homes 2004). In our biological opinion for the issuance of the section 
10(a)(1)(B) permit to the City of Carlsbad, we stated that the proposed 
action would not directly impact any currently known populations and is 
not likely to jeopardize the continued existence or recovery of 
Navarretia fossalis (Service 2004). The avoidance, minimization, and/or 
mitigation measures and the adaptive management of lands within the 
Preserve that are included in the MHCP Subregional Plan and the City of 
Carlsbad Subarea Plan will reduce any impacts that may occur to 
Navarretia fossalis.

Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP)

    We excluded 17,908 ac (7,247 ha) of non-Federal lands within the 
Western Riverside County MSHCP under section 4(b)(2) of the Act. The 
Western Riverside County MSHCP establishes a multiple species 
conservation program to minimize and mitigate the expected loss of 
habitat values and, with regard to ``covered'' animal species, the 
incidental take of such species. The MSHCP Plan Area encompasses 
approximately 1.26 million ac (509,900 ha) in western Riverside County, 
including the northeastern portion of the range of Navarretia fossalis, 
which is a covered species under this plan. The Western Riverside MSHCP 
is a subregional plan under the State's Natural Communities 
Conservation Plan (NCCP) and was developed in cooperation with the 
California Department of Fish and Game. The Service concluded that the 
MSHCP would not jeopardize the continued

[[Page 60677]]

existence of N. fossalis in its Biological and Conference Opinion 
(Service 2004).
    The MSHCP has five species specific conservation objectives to 
conserve and monitor Navarretia fossalis populations: (1) Include a 
minimum of 6,900 ac of suitable habitat; (2) include a minimum of 13 
known N. fossalis locations at Skunk Hollow, the Santa Rosa Plateau, 
the San Jacinto Wildlife Area, floodplains of the San Jacinto River 
from the Ramona Expressway to Railroad Canyon, and upper Salt Creek 
west of Hemet; (3) conduct surveys for the species; (4) include the 
floodplain of the San Jacinto River consistent with Objective 1, and 
maintain floodplain processes along the river to provide for the 
distribution of the species to shift over time as hydrologic conditions 
and seed bank sources change; and, (5) include the floodplain along 
Salt Creek generally in its existing condition from Warren Road to 
Newport Road and the vernal pools in Upper Salt Creek west of Hemet, 
and maintain floodplain processes along the river to provide for the 
distribution of the species to shift over time as hydrologic conditions 
and seed bank sources change.
    Approximately 85 percent of the areas with essential features for 
the conservation of Navarretia fossalis (15,224 acres of the 17,908 
acres of areas with essential features for the conservation of 
Navarretia fossalis) would be protected on existing Public/Quasi-Public 
Lands (PQP) lands and conceptual reserve design lands within the 
Western Riverside County MSCHP (MSHCP Conservation Area) (14,992 ac) 
and by the approved Rancho Bella Vista HCP (232 acres) (see objectives 
1 and 2). This area with essential features for the conservation of 
Navarretia fossalis is located at the Santa Rosa Plateau, San Jacinto 
Wildlife Area, along the floodplain of the San Jacinto River, and upper 
Salt Creek west of Hemet and includes many occurrences of Navarretia 
fossalis (see objectives 4 and 5). The assembly of the MSHCP 
Conservation Area is anticipated to occur over the life of the permit. 
The MSHCP also includes monitoring and management requirements for 
Navarretia fossalis. Known localities within the MSHCP Conservation 
Area will be monitored every eight years. Under the MSHCP, reserve 
managers are responsible for the maintenance and enhancement of 
floodplain processes on the San Jacinto River and Upper Salt Creek. 
Particular management emphasis will be given to preventing alteration 
of hydrology and floodplain dynamics, farming, fire and fire 
suppression activities, off-road vehicle use, and competition from non-
native plant species. Thus, a significant amount of the areas with 
essential features for the conservation of Navarretia fossalis and 
occurrences of N. fossalis are expected to be conserved and managed in 
the MSHCP Conservation Area.
    Approximately two percent of the area with essential features for 
the conservation of Navarretia fossalis (274 ac) is within the Narrow 
Endemic Plant Species Survey Area 4 (see conservation objective 3). In 
accordance with the Protection of Narrow Endemic Plant Species section 
of the MSHCP, property owners must avoid 90 percent of those portions 
of the property within the MSHCP Criteria Area that provide long-term 
conservation value for the species until the permittees have 
demonstrated that conservation goals for the species have been met. 
Additionally, the Protection of Species Associated with Riparian/
Riverine areas and Vernal Pools section of the MSHCP may result in 
additional conservation for this species. Thus, these lands that are 
not part of the MSHCP Conservation Area will still receive a certain 
level of protection under the Western Riverside MSHCP until the 
conservation goals for Navarretia fossalis have been met.
    Approximately seven percent of the area with essential features for 
the conservation of Navarretia fossalis (1,272 ac) provides the 
watershed for the MSHCP Conservation Area at upper Salt Creek west of 
Hemet. These watershed lands are not part of the MSHCP Conservation 
Area and are not known to be occupied by N. fossalis. The Guidelines 
Pertaining to the Urban/Wildlands Interface is to ensure that the 
quantity and quality of runoff discharged to the MSHCP Conservation 
Area is not altered in an adverse way when compared with existing 
conditions. The function of these lands would be to maintain the 
quantity and quality of runoff discharged to the MSHCP Conservation 
Area. While these lands are expected to be developed, this guideline 
would ensure that future urbanization would maintain the existing water 
quality and quantity needed to sustain the vernal pools occupied by 
Navarretia fossalis.
    Numerous processes are incorporated into the MSHCP that allow for 
Service oversight of MSHCP implementation. These processes include (1) 
annual reporting requirements; joint review of projects proposed within 
the Criteria Area; participation on the Reserve Management Oversight 
Committee; and a Reserve Assembly Accounting Process which will be 
implemented to ensure that conservation of lands occurs in rough 
proportionality to development, are assembled in the configuration as 
generally described in the MSHCP, and that conservation goals and 
objectives are being achieved. The Service is also responsible for 
reviewing Determinations of Biologically Equivalent or Superior 
Preservation that are proposed under the Protection of Species 
Associated with Riparian/Riverine Areas and Vernal Pools policy and for 
reviewing minor amendment projects, such as the State Route 79 
Realignment project and the San Jacinto River Flood Control project, 
for consistency with the requirements of the MSHCP.
    Thus, the Western Riverside MSHCP provides significant conservation 
benefits to Navarretia fossalis. These benefits include a MSHCP 
Conservation Area that protects a significant percentage of the area 
with essential features for the conservation of Navarretia fossalis and 
occurrences for N. fossalis and long-term management of the preserve 
areas. The MSHCP also provides avoidance and minimization measures, 
under the Protection of Narrow Endemic Plant Species and Guidelines 
Pertaining to the Urban/Wildlands Interface, that provide benefits to 
the species and watershed for Navarretia fossalis. Finally, the MSHCP 
provides oversight to ensure effective implementation.
    The following analysis considers all three plans discussed above 
((1) San Diego Multiple Species Conservation Program (MSCP): City of 
San Diego subarea plan and County of San Diego subarea plan; (2) 
Western Riverside MSHCP; and (3) Northwestern San Diego MHCP: City of 
Carlsbad Subarea Plan/Habitat Management Plan (HMP))

(1) Benefits of Inclusion

    Overall, we believe that there is minimal benefit from designating 
critical habitat for Navarretia fossalis within the City of San Diego 
Subarea Plan and County of San Diego Subarea Plan, City of Carlsbad 
HMP, and Western Riverside County MSHCP because, as explained above, 
these lands are already managed or will be managed for the conservation 
Navarretia fossalis. Below we discuss benefits of inclusion of these 
HCP lands.
    A benefit of including an area within a critical habitat 
designation is the protection provided by section 7(a)(2) of the Act 
that directs Federal agencies to ensure that their actions do not 
result in the destruction or adverse modification of critical habitat. 
The designation of critical habitat and the analysis to determine if 
the proposed Federal action may result in the destruction or adverse 
modification of critical habitat for Navarretia fossalis may provide a

[[Page 60678]]

different level of protection under section 7(a)(2) of the Act that is 
separate from the obligation of a Federal agency to ensure that their 
actions are not likely to jeopardize the continued existence of 
Navarretia fossalis. Under the Gifford Pinchot decision, critical 
habitat designations may provide greater benefits to the recovery of a 
species than was previously believed, but it is not possible to 
quantify this benefit at present. However, the protection provided 
under section 7(a)(2) of the Act is still a limitation on the harm that 
occurs to the species or critical habitat as opposed to a requirement 
to provide a conservation benefit.
    The inclusion of these 21,384 ac (8,654 ha) of non-Federal land as 
critical habitat may provide some additional Federal regulatory 
benefits for the species consistent with the conservation standard 
based on the Ninth Circuit Court's decision in Gifford Pinchot. A 
benefit of inclusion would be the requirement of a Federal agency to 
ensure that their actions on these non-Federal lands do not likely 
result in the destruction or adverse modification of critical habitat. 
This additional analysis to determine destruction or adverse 
modification of critical habitat is likely to be small because the 
lands are not under Federal ownership and any Federal agency proposing 
a Federal action on these 21,384 ac (8,654 ha) of non-Federal lands 
would likely consider the conservation value of these lands as 
identified in the City of San Diego Subarea Plan and County of San 
Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside County 
MSHCP and take the necessary steps to avoid jeopardy or the destruction 
or adverse modification of critical habitat.
    The areas excluded as critical habitat include the vernal pools 
that are occupied by Navarretia fossalis and the surrounding vernal 
pool watershed (the watershed is not occupied by Navarretia fossalis). 
If these areas were designated as critical habitat, any actions with a 
Federal nexus, such as the issuance of a permit under section 404 of 
the Clean Water Act, which might adversely affect the critical habitat 
would require a consultation with us, as explained previously, in 
Effects of Critical Habitat Designation. However, inasmuch as portions 
of these areas are currently occupied by the species, consultation for 
Federal activities which might adversely impact the species would be 
required even without the critical habitat designation. For the 
surrounding vernal pool watershed not occupied by Navarretia fossalis, 
the Federal action agency would need to determine if the proposed 
action would affect the species rather than making a determination if 
the proposed action would cause destruction or adverse modification of 
critical habitat. A potential benefit of critical habitat would be to 
signal the importance of the surrounding vernal pool watershed not 
occupied by Navarretia fossalis to Federal agencies and to ensure their 
actions do not result in the destruction or adverse modification of 
critical habitat pursuant to section 7(a)(2) of the Act.
    This potential benefit of critical habitat is reduced by the 
measures contained in the HCPs to maintain watersheds for endangered 
species and vernal pools. For the watershed areas for Navarretia 
fossalis, both the City of San Diego Subarea Plan and County of San 
Diego Subarea Plan provide species-specific measures to protect against 
detrimental edge effects, maintain surrounding habitat for pollinators, 
and maintain watershed areas for Navarretia fossalis. Thus, these 
subarea plans provide a greater level of protection and management for 
the watersheds of vernal pools occupied by Navarretia fossalis than the 
simple avoidance of adverse effects to critical habitat. The Western 
Riverside County MSHCP provides Guidelines Pertaining to the Urban/
Wildlands Interface. Under this guideline, proposed developments in 
proximity to MSHCP Conservation Areas shall incorporate measures, 
including measures required through the National Pollutant Discharge 
Elimination System requirements, to ensure that the quantity and 
quality of runoff discharged to the MSHCP Conservation Area is not 
altered in an adverse way when compared with existing conditions. In 
particular, measures shall be put in place to avoid discharge of 
untreated surface runoff from developed and paved areas into the MSHCP 
Conservation Area. Stormwater systems shall be designed to prevent the 
release of toxins, chemicals, petroleum products, exotic plant 
materials or other elements that might degrade or harm biological 
resources or ecosystem processes within the MSHCP Conservation Area. 
Thus, this HCP provide a greater level of protection and management for 
the watersheds of vernal pools occupied by Navarretia fossalis than the 
simple avoidance of adverse effects to critical habitat. For the vernal 
pools along the Poinsettia train station, the surrounding watershed is 
completely urbanized and there is virtually no likelihood for a future 
section 7 consultation within these housing areas that would provide 
any benefit to protect the watershed. Thus, there would be no benefit 
to include these areas as critical habitat.
    If these areas were included as critical habitat, primary 
constituent elements would be protected from destruction or adverse 
modification by Federal actions using a conservation standard based on 
the Ninth Circuit Court's decision in Gifford Pinchot. This requirement 
would be in addition to the requirement that proposed Federal actions 
avoid likely jeopardy to the species' continued existence. However, for 
those areas occupied by Navarretia fossalis and the surrounding vernal 
pool watershed, consultation for activities which may adversely affect 
the species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3), would be required, even without 
the critical habitat designation. The requirement to conduct such 
consultation would occur regardless of whether the authorization for 
incidental take occurs under either section 7 or section 10 of the Act.
    In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 
2001), the Fifth Circuit Court of Appeals stated that the 
identification of habitat essential to the conservation of the species 
can provide informational benefits to the public, State and local 
governments, scientific organizations, and Federal agencies. The court 
also noted that heightened public awareness of the plight of listed 
species and their habitats may facilitate conservation efforts. The 
inclusion of an area as critical habitat may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved for Navarretia 
fossalis. The public outreach and environmental impact reviews required 
under the National Environmental Policy Act for the City of San Diego 
Subarea Plan and County of San Diego Subarea Plan, City of Carlsbad 
HMP, and Western Riverside County MSHCP provided significant 
opportunities for public education regarding the conservation of the 
areas occupied by Navarretia fossalis and the surrounding vernal pool 
watershed. There would be little additional informational benefit 
gained from including these lands as critical habitat because of the 
level of information that has been made available to the public as part 
of these regional planning efforts. Consequently, we believe that the 
informational benefits are already provided even though this area is 
not designated as critical habitat. Additionally, the purpose of the 
City of San Diego

[[Page 60679]]

Subarea Plan and County of San Diego Subarea Plan, City of Carlsbad 
HMP, and Western Riverside County MSHCP to provide protection and 
enhancement of habitat for Navarretia fossalis is already well 
established among State and local governments, and Federal agencies.
    As discussed below, however, we believe that designating any non-
Federal lands within the City of San Diego Subarea Plan and County of 
San Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside 
County MSHCP as critical habitat would provide little additional 
educational and Federal regulatory benefits for the species. Because 
portions of the excluded vernal pool areas are occupied by the species, 
there must be consultation with the Service over any action which may 
affect these populations. For the surrounding vernal pool watershed not 
occupied by Navarretia fossalis, the City of San Diego Subarea Plan and 
County of San Diego Subarea Plan and Western Riverside County MSHCP 
provide management measures to protect the watershed for these vernal 
pools. The additional educational benefits that might arise from 
critical habitat designation have been largely accomplished through the 
public review and comment of the environmental impact documents which 
accompanied the development of the City of San Diego Subarea Plan and 
County of San Diego Subarea Plan, City of Carlsbad HMP, Western 
Riverside County MSHCP, and the critical habitat proposal for this 
taxon and its economic analysis, and the recognition by the City of San 
Diego, City of Carlsbad, County of San Diego, and County of Riverside 
of the presence of Navarretia fossalis and the value of their lands for 
the conservation and recovery of the species. Public information signs 
on vernal pools and endangered species have been placed at the 
Poinsettia train station.
    For 30 years prior to the Ninth Circuit Court's decision in Gifford 
Pinchot, the Fish and Wildlife Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. However, in Gifford Pinchot the court noted the government, by 
simply considering the action's survival consequences, was reading the 
concept of recovery out of the regulation. The court, relying on the 
CFR definition of adverse modification, required the Service to 
determine whether recovery was adversely affected. The Gifford Pinchot 
decision arguably made it easier to reach an ``adverse modification'' 
finding by reducing the harm, affecting recovery, rather than the 
survival of the species. However, there is an important distinction: 
section 7(a)(2) limits harm to the species either through jeopardy or 
destruction or adverse modification analyses. It does not require 
positive improvements or enhancement of the species status. Thus, any 
management plan which considers enhancement or recovery as the 
management standard will almost always provide more benefit than the 
critical habitat designation.

(2) Benefits of Exclusion

    As mentioned above, the City of San Diego Subarea Plan and County 
of San Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside 
County MSHCP provide for the conservation of Navarretia fossalis 
through avoidance, minimization, and/or mitigation of impacts, 
management of habitat, and maintenance of watershed. The City of San 
Diego Subarea Plan and County of San Diego Subarea Plan, City of 
Carlsbad HMP, and Western Riverside County MSHCP provide for protection 
of the PCEs, and addresses special management needs such as edge 
effects and maintenance of hydrology. Designation of critical habitat 
would therefore not provide as great a benefit to the species as the 
positive management measures in these HCPs.
    The benefits of excluding lands within HCPs from critical habitat 
designation include relieving landowners, communities, and counties of 
any additional regulatory burden that might be imposed by a critical 
habitat designation consistent with the conservation standard based on 
the Ninth Circuit Court's decision in Gifford Pinchot. Many HCPs, 
particularly large regional HCPs take many years to develop and, upon 
completion, become regional conservation plans that are consistent with 
the recovery objectives for listed species that are covered within the 
plan area. Additionally, many of these HCPs provide conservation 
benefits to unlisted, sensitive species. Imposing an additional 
regulatory review after an HCP is completed solely as a result of the 
designation of critical habitat may undermine conservation efforts and 
partnerships in many areas. In fact, it could result in the loss of 
species' benefits if participants abandon the voluntary HCP process 
because the critical habitat designation may result in additional 
regulatory requirements than faced by other parties who have not 
voluntarily participated in species conservation. Designation of 
critical habitat within the boundaries of approved HCPs could be viewed 
as a disincentive to those entities currently developing HCPs or 
contemplating them in the future.
    Another benefit from excluding these lands is to maintain the 
partnerships developed among the City of San Diego, City of Carlsbad, 
County of San Diego, County of Riverside, State of California, and the 
Service to implement the City of San Diego Subarea Plan and County of 
San Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside 
County MSHCP. Instead of using limited funds to comply with 
administrative consultation and designation requirements which cannot 
provide protection beyond what is currently in place, the partners 
could instead use their limited funds for the conservation of this 
species.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants including States, Counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within HCP plan areas 
are designated as critical habitat, it would likely have a negative 
effect on our ability to establish new partnerships to develop HCPs, 
particularly large, regional HCPs that involve numerous participants 
and address landscape-level conservation of species and habitats. By 
excluding these lands, we preserve our current partnerships and 
encourage additional conservation actions in the future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the issue of adverse modification to critical habitat, unless critical 
habitat has already been designated within the proposed plan area, it 
will determine if the HCP jeopardizes the species in the plan area. In 
addition, Federal actions not covered by the HCP in areas occupied by 
listed species would still require consultation under section 7 of the 
Act. HCP and NCCP/HCPs typically provide for greater conservation 
benefits to a covered species than section 7 consultations because HCPs 
and NCCP/HCPs assure the long-term protection and management of a 
covered species and its habitat, and funding for such management 
through the standards found in the 5 Point Policy for HCPs (64 FR 
35242) and the HCP ``No Surprises'' regulation (63 FR 8859). Such 
assurances are typically not provided by section 7 consultations that, 
in contrast to HCPs, often do not commit the project proponent to long-
term special

[[Page 60680]]

management or protections. Thus, a consultation typically does not 
accord the lands it covers the extensive benefits a HCP or NCCP/HCP 
provides. The development and implementation of HCPs or NCCP/HCPs 
provide other important conservation benefits, including the 
development of biological information to guide the conservation efforts 
and assist in species conservation, and the creation of innovative 
solutions to conserve species while allowing for development.
    In the biological opinions for the City of San Diego Subarea Plan 
and County of San Diego Subarea Plan, City of Carlsbad HMP, and Western 
Riverside County MSHCP, the Service concluded that issuance of section 
10(a)(1)(B) permits for these plans are not likely to result in 
jeopardy to the species.

(3) Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the exclusion of critical habitat 
for Navarretia fossalis from approximately 21,384 ac (8,654 ha) of non-
Federal lands within the City of San Diego Subarea Plan and County of 
San Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside 
County MSHCP and based on this evaluation, we find that the benefits of 
exclusion (avoid increased regulatory costs which could result from 
including those lands in this designation of critical habitat, ensure 
the willingness of existing partners to continue active conservation 
measures, maintain the ability to attract new partners, and direct 
limited funding to conservation actions with partners) of the lands 
containing features essential to the conservation of the Navarretia 
fossalis within the City of San Diego Subarea Plan and County of San 
Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside County 
MSHCP outweigh the benefits of inclusion (limited educational and 
regulatory benefits, which are largely otherwise provided for under the 
HCPs) of these lands as critical habitat. The benefits of inclusion of 
these 21,384 ac (8,654 ha) of non-Federal lands as critical habitat are 
lessened because of the significant level of conservation provided to 
Navarretia fossalis under the City of San Diego Subarea Plan and County 
of San Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside 
County MSHCP (conservation of occupied and potential habitat, 
monitoring, and providing hydrology). In contrast, the benefits of 
exclusion of these 21,384 ac (8,654 ha) of non-Federal lands as 
critical habitat are increased because of the high level of cooperation 
by the City of San Diego, City of Carlsbad, County of San Diego, County 
of Riverside, State of California, and the Service to conserve this 
species and these partnerships exceed any conservation value provided 
by a critical habitat designation.

(4) Exclusion Will Not Result in Extinction of the Species

    We believe that exclusion of these 21,384 ac (8,654 ha) of non-
Federal lands will not result in extinction of Navarretia fossalis 
since these lands are conserved or will be conserved and managed for 
the benefit of this species pursuant to the City of San Diego Subarea 
Plan and County of San Diego Subarea Plan, City of Carlsbad HMP, and 
Western Riverside County MSHCP. These HCPs includes specific 
conservation objectives, avoidance and minimization measures, and 
management that exceed any conservation value provided as a result of a 
critical habitat designation.
    The vernal pools along the Poinsettia train station are protected 
pursuant to an agreement with Laing Homes and the City of Carlsbad that 
will provide a conservation easement, long-term maintenance, and a 
maintenance endowment fund. This level of protection would occur 
regardless of whether these lands are excluded as critical habitat. In 
our biological opinion for the issuance of a section 10(a)(1)(B) permit 
for the City of San Diego subarea plan and County of San Diego subarea 
plan, the Service concluded that the proposed permit issuances would 
not appreciably reduce the likelihood of the survival and recovery of 
Navarretia fossalis because of the avoidance measures, management, and 
preserve system. The Service concluded that the Western Riverside 
County MSHCP would not jeopardize the continued existence of N. 
fossalis in our Biological and Conference Opinion because of the 
management measures and level of conservation.
    The jeopardy standard of section 7 and routine implementation of 
habitat conservation through the section 7 process also provide 
assurances that the species will not go extinct. The exclusion leaves 
these protections unchanged from those that would exist if the excluded 
areas were designated as critical habitat.
    Critical habitat is being designated for Navarretia fossalis in 
other areas that will be accorded the protection from adverse 
modification by federal actions using the conservation standard based 
on the Ninth Circuit Court's decision in Gifford Pinchot. Additionally, 
the species within the City of San Diego Subarea Plan and County of San 
Diego Subarea Plan, City of Carlsbad HMP, and Western Riverside County 
MSHCP occurs on lands protected and managed either explicitly for the 
species or indirectly through more general objectives to protect 
natural values. These factors acting in concert with the other 
protections provided under the Act, lead us to find that exclusion of 
these 21,384 ac (8,654 ha) within the City of San Diego Subarea Plan 
and County of San Diego Subarea Plan, City of Carlsbad HMP, and Western 
Riverside County MSHCP will not result in extinction of Navarretia 
fossalis.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific data 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 August 31, 2005 (70 FR 51742). We 
accepted comments on the draft analysis until September 14, 2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for Navarretia fossalis. This information is intended to assist 
the Secretary in making decisions about whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be coextensive with 
the listing of the species. It also addresses distribution of impacts, 
including an assessment of the potential effects on small entities and 
the energy industry. This information can be used by the Secretary to 
assess whether the effects of the designation might unduly burden a 
particular group or economic sector.
    This analysis determined that costs involving conservation measures 
for Navarretia fossalis would be incurred for activities involving 
residential, industrial, and commercial

[[Page 60681]]

development, water supply, flood control, transportation, agriculture, 
the development of HCPs, and the management of military bases, other 
Federal lands, and other public or conservation lands.
    Pre-designation costs include those Navarretia fossalis-related 
conservation activities associated with sections 4, 7, and 10 of the 
Act that have accrued since the time that Navarretia fossalis was 
listed as endangered (October 1998), but prior to the final designation 
of critical habitat. The total pre-designation costs are estimated at 
$7.9 million.
    Post-designation effects include likely future costs associated 
with Navarretia fossalis conservation efforts following the final 
designation of critical habitat in October 2005, effectively 2006 
through 2025. If critical habitat is designated as proposed, total 
costs would be expected to range between $13.9 and $32.1 million over 
the next 20 years (an annualized cost of $1.3 to $3.0 million). Costs 
will be less due to significant reductions made to critical habitat in 
this final rule (see ``Summary of Changes from Proposed Rule'').
    The final economic analysis and supporting documents are included 
in our administrative record and may be obtained by contacting U.S. 
Fish and Wildlife Service, Branch of Endangered Species (see ADDRESSES 
section) or for downloading from the Internet at http://carlsbad.fws.gov.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues. 
However, because the draft economic analysis indicates the potential 
economic impact associated with a designation of all habitat with 
features essential to the conservation of this species would total no 
more than $12.2 million per year, we do not anticipate that this final 
rule will have an annual effect on the economy of $100 million or more 
or affect the economy in a material way. Due to the time line for 
publication in the Federal Register, the Office of Management and 
Budget (OMB) did not formally reviewed the proposed rule.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Small Business 
Regulatory Enforcement Fairness Act (5 U.S.C 801 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. In our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as 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 this proposed designation of critical habitat for 
Navarretia fossalis would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., residential, industrial 
and commercial development). We considered each industry or category 
individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us if their activities may affect 
designated critical habitat. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process. Our analysis determined that costs 
involving conservation measures for Navarretia fossalis would be 
incurred for activities involving residential, industrial, and 
commercial development, water supply, flood control, transportation, 
agriculture, the development of HCPs, and the management of military 
bases, other Federal lands, and other public or conservation lands.
    In our economic analysis of this proposed designation, we evaluated 
the potential economic effects on small business entities resulting 
from conservation actions related to the listing of this species and 
proposed designation of its critical habitat. Critical habitat 
designation is expected to result in additional costs to real estate 
development projects due to mitigation and other conservation costs 
that may be required. The affected land is located within Riverside, 
San Diego, and Los Angeles counties (although the proposed designation 
is contained in only Los Angeles and San Diego counties) and under 
private ownership by individuals who will either undertake a 
development project on their own or sell the land to developers for 
development. For businesses involved with land development, the 
relevant threshold for ``small'' is annual revenues of $6 million or 
less. The North American Industry Classification System (NAICS) code 
237210 is comprised of establishments primarily engaged in servicing 
land (e.g., excavation, installing roads and utilities) and subdividing 
real property into lots for subsequent sale to builders. Land 
subdivision precedes actual construction, and typically includes 
residential properties, but may also include industrial and commercial 
properties.
    It is likely that development companies, the entities directly 
impacted by the regulation, would not bear the additional cost of 
Navarretia fossalis conservation (approximately $2.3 to $6.7 million 
annualized) within the areas with essential features for the 
conservation of Navarretia fossalis, but

[[Page 60682]]

pass these costs to the landowner through a lower land purchase price. 
Considering approximately 65 percent of the developable land within the 
areas with essential features for the conservation of Navarretia 
fossalis is classified as agriculture land, it is likely that farmers 
will bear some of the costs. The remaining 35 percent of the 
potentially developable land is privately owned and classified as 
vacant. To comply with the SBA recommendation that Federal agencies 
consider impacts to entities that may be indirectly affected by the 
proposed regulation, this screening level analysis presents information 
on land subdivision and farming businesses for Riverside, San Diego, 
and Los Angeles counties as these are the businesses that would likely 
be impacted directly or indirectly by the regulation. The majority of 
the land subdivision and farming businesses within the counties are 
considered small businesses.
    It is important to note that the identity and number of land 
subdivision and farming businesses potentially impacted by the critical 
habitat designation is not known. In addition, the identity and number 
of affected businesses classified as ``small'' is also not known. 
Nevertheless, the county-level information is the smallest region for 
which data relevant to this analysis exist (see Table A-1 in the Draft 
Economic Analysis). This clearly over represents the potential number 
of small businesses impacted by development-related Navarretia fossalis 
conservation efforts as the privately owned developable land within the 
areas with essential features for the conservation of Navarretia 
fossalis (approximately 15,084 ac (6,104.5 ha)) comprises less than 
two-tenths of one percent of the land area in the counties (9,908,520 
ac (4,009,978 ha)), and only 2,969 ac (1,201.6 ha) of this private land 
is forecasted to be developed between 2006 and 2025. The effects on 
small businesses in the land development sector would be concentrated 
in San Diego County, where more than 65 percent of the development is 
expected to take place. Within the proposed critical habitat 
designation, the effects on small businesses in the land development 
sector would be concentrated in Ramona, where approximately 30 percent 
of the development in the proposed critical habitat designation is 
forecast to take place (Unit 4E).
    While the identity and number of land subdivision and farming 
business impacted by the critical habitat designation is not known, 
this analysis relates the economic impacts to real estate prices in the 
three counties that encompass the areas with essential features for the 
conservation of Navarretia fossalis (see Table A-2 in the Draft 
Economic Analysis). Navarretia fossalis-related conservation efforts 
are expected to cost between $390 and $11,300 per residential dwelling 
unit developed, $0.81 to $5.90 per square foot of commercial property 
developed, and $0.53 to $3.82 per square foot of industrial property 
developed, depending on residential dwelling unit density, lot coverage 
(i.e., the percent of the lot developed), and conservation and 
mitigation activities required. The median sales price for single 
family residences in the counties ranged from $315,000 to $460,000 in 
2004,357 and the weighted average sales price of commercial and 
industrial properties in 2004 ranged from $130 to $293 and $50 to $180 
per square foot, respectively. Thus, the economic impacts of Navarretia 
fossalis conservation to the development industry are equal to 0.1 
percent to 2.9 percent of the 2004 median price of a single family 
residence, 0.4 percent to 4.5 percent of the 2004 weighted average 
sales price of commercial property, and 0.4 percent to 5.4 percent of 
the 2004 weighted average sales price of industrial property. These 
costs may be borne by the developer or passed on to the landowner 
through a lower land purchase price.
    Based on these data, we have determined that this proposed 
designation would not result in a significant economic impact on a 
substantial number of small entities, in particular to land developers 
or farmers in Los Angeles, Riverside or San Diego Counties. We may also 
exclude areas from the final designation if it is determined that these 
localized areas have an impact to a substantial number of businesses 
and a significant proportion of their annual revenues. As such, we are 
certifying that this proposed designation of critical habitat would not 
result in a significant economic impact on a substantial number of 
small entities. Please refer to Appendix A of our draft economic 
analysis of this designation for a more detailed discussion of 
potential economic impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is 
considered a significant regulatory action under E.O. 12866 because it 
raises novel legal and policy issues, but it is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant action and no Statement of Energy 
Effects is required. Please refer to Appendix A of our draft economic 
analysis of this proposed designation for a more detailed discussion of 
potential effects on energy supply.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or

[[Page 60683]]

private parties. Under the Act, the only regulatory effect is that 
Federal agencies must ensure that their actions do not destroy or 
adversely modify critical habitat under section 7. Non-Federal entities 
that receive Federal funding, assistance, permits, or otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat. However, 
the legally binding duty to avoid destruction or adverse modification 
of critical habitat rests squarely on the Federal agency. Furthermore, 
to the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply; nor 
would critical habitat shift the costs of the large entitlement 
programs listed above on to State governments.
    (b) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for Navarretia fossalis, there are 12 
city governments are either adjacent to or bisect the areas with 
essential features for the conservation of Navarretia fossalis: Moreno 
Valley (population 142,381), Perris (population 36,189), Lakeview 
(population 1,619), Nuevo (population 4,135), Winchester (population 
2,155), Hemet (population 58,812), Temecula (population 57,716), San 
Marcos (population 54,977), Carlsbad (population 78,247), Ramona 
(population 15,691), San Diego (population 1,223,400) and Chula Vista 
(population 173,556). Moreno Valley, Hemet, Temecula, San Marcos, 
Carlsbad, San Diego, and Chula Vista exceed the criteria (service 
population of 50,000 or less) for small entity.'' However, there is no 
record of consultation between the Service and the five remaining 
``small'' governments, the City of Perris, Lakeview, Nuevo, Winchester, 
and Ramona, since the Navarretia fossalis was listed in 1998. Indeed, 
it is not likely that these cities would be involved in a land 
development project involving a section 7 consultation, although a city 
may be involved in land use planning or permitting, and may play a role 
as an interested party in infrastructure projects (such as the City of 
Perris with the San Jacinto River Flood Control Project). Any cost 
associated with this activity/involvement is anticipated to be a very 
small portion of the city's budget. Consequently, we do not believe 
that the designation of critical habitat for Navarretia fossalis will 
significantly or uniquely affect these small governmental entities. As 
such, a Small Government Agency Plan is not required.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
critical habitat designation with appropriate State resource agencies 
in California. The designation of critical habitat in areas currently 
occupied by Navarretia fossalis imposes no additional restrictions to 
those currently in place and, therefore, has little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments in that the areas essential 
to the conservation of the species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the survival 
of the species are specifically 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 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the 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 Act. This 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 Navarretia fossalis.

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

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

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996).]

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands essential for the conservation of Navarretia 
fossalis.

References Cited

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

Author

    The primary author of this notice is the Carlsbad Fish and Wildlife 
Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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 ``Navarretia fossalis'' under 
``Flowering Plants'' in the List of Endangered and Threatened Plants to 
read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 60684]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Navarretia fossalis..............  Spreading navarretia  U.S.A. (CA), Mexico  Polemoniaceae......  T                       650     17.96(a)           NA
                                                          (Baja California).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.96(a), add critical habitat for Navarretia fossalis in 
alphabetical order under Family Polemoniaceae to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
Family Polemoniaceae: Navarretia fossalis (spreading navarretia)
    (1) Critical habitat units for Navarretia fossalis are depicted for 
San Diego and Los Angeles Counties, California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Navarretia fossalis are:
    (i) Vernal pool, alkali playa, or alkali sink habitats, at 
elevations between sea level and 4,250 ft (1,300 m) found on flat to 
gently sloping terrain;
    (ii) Soils with a clay component or an impermeable surface or 
subsurface layer known to support vernal pool habitat including, but 
not limited to: Cieneba-Pismo-Caperton in Los Angeles County; Domino, 
Traver, and Willows in Riverside County; and Huerhuero, Placentia, 
Olivenhain, Stockpen, and Redding in San Diego. Clay soils serve to 
inhibit rapid infiltration of rainwater. These soils also act as a 
buffer to moderate the water chemistry and rate of loss of water to 
evaporation. Clay soils of this nature are known to support vernal 
pool, alkali playa, and alkali sink habitats; and
    (iii) Associated hydrology that provides water to fill the pools in 
the winter and spring months. A pool with functional hydrology includes 
a combination of surface and underground water flow, native upland 
vegetation, and intact soil substrate. An inundated phase occurring in 
the winter and spring months followed by a dry phase in the summer and 
fall months is necessary to maintain these specialized habitats.
    (3) Critical habitat for Navarretia fossalis does not include 
existing features and structures, such as buildings, roads, aqueducts, 
railroads, airport runways and buildings, other paved areas, lawns, and 
other urban landscaped areas, not containing one or more of the primary 
constituent elements.
    (4) Exclusions from the critical habitat designation. Lands 
determined to be essential to the conservation of Navarretia fossalis 
and that have been excluded from critical habitat designation, are:
    (i) Exclusions under section 4(b)(2) of the Endangered Species Act 
of 1973, as amended. The areas excluded under section 4(b)(2) of the 
Act include the following:
    (A) Areas within the City of San Diego Subarea Plan and County of 
San Diego Subarea Plan of the San Diego Multiple Species Conservation 
Program (MSCP);
    (B) Areas within the approved Carlsbad subarea plan/habitat 
management plan for the Northwestern San Diego Multiple Habitat 
Conservation Plan (MHCP);
    and, (C) Areas within the approved Western Riverside Multiple 
Species Habitat Conservation Plan (MSHCP).
    (ii) [Reserved.]
    (5) All map units are in the Universal Transverse Mercator (UTM) 
coordinate system, North American Datum of 1927 (NAD27) projection. 
Index map of critical habitat units for Navarretia fossalis (spreading 
navarretia) follows:
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[[Page 60685]]

[GRAPHIC] [TIFF OMITTED] TR18OC05.008


[[Page 60686]]


    (6) Unit 1: Transverse Unit. Los Angeles County, California, from 
USGS 1:24,000 quadrangle map Mint Canyon, California.
    (i) Subunit 1A: Land bounded by the following UTM NAD 27 
coordinates (E, N): 368300, 3815100; 368400, 3815100; 368400, 3815000; 
368500, 3815000; 368500, 3814900; 368600, 3814900; 368600, 3814800; 
368500, 3814800; 368500, 3814700; 368400, 3814700; 368400, 3814600; 
368300, 3814600; 368300, 3814500; 368200, 3814500; 368200, 3814300; 
368100, 3814300; 368100, 3814200; 368200, 3814200; 368200, 3813800; 
368100, 3813800; 368100, 3813600; 368000, 3813600; 368000, 3813500; 
367900, 3813500; 367900, 3813300; 367800, 3813300; 367800, 3813200; 
367700, 3813200; 367700, 3813300; 367600, 3813300; 367600, 3813400; 
367500, 3813400; 367500, 3813500; 367400, 3813500; 367400, 3813600; 
367300, 3813600; 367300, 3813800; 367100, 3813800; 367100, 3814000; 
367200, 3814000; 367200, 3814100; 367300, 3814100; 367300, 3814200; 
367400, 3814200; 367400, 3814300; 367500, 3814300; 367500, 3814400; 
367600, 3814400; 367600, 3814500; 367700, 3814500; 367700, 3814600; 
367800, 3814600; 367800, 3814700; 367900, 3814700; 367900, 3814800; 
368000, 3814800; 368000, 3814900; 368200, 3814900; 368200, 3815000; 
368300, 3815000; returning to 368300, 3815100.
    (ii) Subunit 1B: Land bounded by the following UTM NAD 27 
coordinates (E, N): 366100, 3813100; 366400, 3813100; 366400, 3812800; 
366500, 3812800; 366500, 3812700; 366100, 3812700; returning to 366100, 
3813100.
    (iii) Note: Map of final Unit 1, subunits A and 1B for Navarretia 
fossalis (spreading navarretia) follows:

[[Page 60687]]

[GRAPHIC] [TIFF OMITTED] TR18OC05.009


[[Page 60688]]


    (7) Unit 2: San Diego, North Coastal Mesas Unit. San Diego County, 
California, from USGS 1:24,000 quadrangle map Encinitas, California,
    (i) Land bounded by the following UTM NAD 27 coordinates (E, N): 
470100, 3663600; thence east to the North San Diego County Transit 
(NSDCT) boundary at UTM y-coordinate 3663600; thence south following 
the NSDCT boundary to UTM x-coordinate 470300; thence south to UTM 
coordinates 470300, 3663300; thence east to the NSDCT boundary at UTM 
y-coordinate 3663300; thence southeast following the NSDCT boundary 
lands to UTM x-coordinate 470400; thence south following UTM x-
coordinate 470400 to the NSDCT boundary; thence west and south 
following the NSDCT boundary to UTM y-coordinate 3662400; thence west 
following UTM y-coordinate 3662400 to the NSDCT boundary; thence 
northwest following the NSDCT boundary to UTM x-coordinate 470400; 
thence north along UTM x-coordinate 470400 to UTM coordinates 470400, 
3662900; thence west to NSDCT lands at UTM y-coordinate 3662900; thence 
northwest following the NSDCT boundary returning to UTM coordinates 
470100, 3663600.
    (ii) Note: Map of Unit 2 for Navarretia fossalis (spreading 
navarretia) follows:

[[Page 60689]]

[GRAPHIC] [TIFF OMITTED] TR18OC05.010


[[Page 60690]]


    (8) Unit 4: Inland Valleys Unit. San Diego County, California, from 
USGS 1:24,000 quadrangle maps Ramona, San Marcos, and San Pasqual, 
California.
    (i) Subunit 4C1: In San Marcos, California, land bounded by La 
Mirada Drive on the northeast, Las Posas Road on the southeast, Linda 
Vista Drive on the southwest, and Pacific Street on the northwest.
    (ii) Subunit 4C2: In San Marcos, California, land within the 
following boundary: beginning at the northeast corner of San Marcos 
Boulevard and Pacific Street, thence northwest along Pacific Steet to 
UTM y-coordinate 3666290; thence to 481750, 3666160; 481790, 3666270; 
thence southeast to y-coordinate 3666230 at Las Posas Road; thence 
southeast along Las Posas Road to y-coordinate 3665940; thence to 
481880, 3665920; thence southeast to x-coordinate 481900 at San Marcos 
Boulevard; thence southwest along San Marcos Boulevard returning to the 
northeast corner of San Marcos Boulevard and Pacific Street.
    (iii) Subunit 4D: Land bounded by the following UTM NAD 27 
coordinates (E, N): 482800, 3666600; 483000, 3666600; 483000, 3666500; 
482900, 3666500; 482900, 3666400; 482800, 3666400; returning to 482800, 
3666600.
    (iv) Subunit 4E: Land bounded by the following UTM NAD 27 
coordinates (E, N): 508100, 3655300; 508500, 3655300; 508500, 3655100; 
509200, 3655100; 509200, 3654700; 508800, 3654700; 508800, 3654900; 
508500, 3654900; 508500, 3655000; 508200, 3655000; 508200, 3654900; 
508100, 3654900; returning to 508100, 3655300.
    (v) Note: Map of Unit 4, Subunits C1, C2, and D, and Map of Unit 4, 
Subunit E for Navarretia fossalis (spreading navarretia) follow:

[[Page 60691]]

[GRAPHIC] [TIFF OMITTED] TR18OC05.011


[[Page 60692]]


[GRAPHIC] [TIFF OMITTED] TR18OC05.012


[[Page 60693]]


    (9) Unit 5: San Diego, Southern Coastal Mesas Unit. San Diego 
County, California, from USGS 1:24,000 quadrangle maps Imperial Beach, 
Jamul Mountains, and Otay Mesa, California.
    (i) Subunit 5A: Land bounded by the following UTM NAD 27 
coordinates (E, N): 500800, 3616700; 501200, 3616700; 501200, 3616600; 
501300, 3616600; 501300, 3616400; 501400, 3616400; 501400, 3616200; 
501200, 3616200; 501200, 3615900; 500900, 3615900; 500900, 3616000; 
500800, 3616000; 500800, 3616200; 501000, 3616200; 501000, 3616400; 
501100, 3616400; 501100, 3616600; 500900, 3616600; 500900, 3616500; 
500800, 3616500; 500800, 3616400; 500600, 3616400; 500600, 3616300; 
500400, 3616300; 500400, 3616500; 500600, 3616500; 500600, 3616600; 
500800, 3616600; returning to 500800, 3616700.
    (ii) Subunit 5B: Land bounded by the following UTM NAD 27 
coordinates (E, N): Map Unit 5B 499900, 3607600; 499900, 3607700; 
499600, 3607700; 499600, 3607900; 500000, 3607900; 500000, 3608000; 
500200, 3608000; 500200, 3607600; returning to 499900, 3607600.
    (iii) Subunit 5C: Beginning at the County of San Diego Amendment 
Area (CSDAA) boundary at UTM NAD 27 y-coordinate 3606700; thence east 
and around the CSDAA; thence south to the CSDAA boundary at UTM y-
coordinate 3606400; thence west following UTM NAD 27 coordinates (E, 
N): 506600, 3606400; thence north to the City of Chula Vista (CCV) 
boundary at UTM NAD 27 x-coordinate 506600; thence northeast along the 
CCV boundary returning to the point of beginning at the CSDAA boundary 
at UTM NAD 27 y-coordinate 3606700.
    (iv) Note: Map of Unit 5, Subunits A, B, and C for Navarretia 
fossalis (spreading navarretia) follows:

[[Page 60694]]

[GRAPHIC] [TIFF OMITTED] TR18OC05.013

* * * * *

    Dated: September 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-20147 Filed 10-17-05; 8:45 am]
BILLING CODE 4310-55-C